ONTARIO COURT OF JUSTICE

DATE: December 11, 2018

COURT FILE NO.: Toronto DFO-13958/16 B2

BETWEEN:

ALICIA SHIRLEY

Applicant

— AND —

DANE CAMPBELL

Respondent

Before: Justice Alex Finlayson

Heard on: May 9, 11, 14, 16, 22, June 27, July 10, September 14 and 21, 2018

Reasons for Judgment released on: December 11, 2018

Counsel:

• Mitchell Wong, for the Applicant
• Lauren Speers, for the Respondent

ALEX FINLAYSON J.:

PART I: NATURE OF THIS JUDGMENT

[1] The Applicant in this case is the mother, Alicia Shirley, who is 46 years old, and the Respondent is the father, Dane Campbell, and he is 48. These parents have four children together, namely Dainique Campbell, born […], 1993 (now age 25), Dane Jr., born […], 1994 (now age 24) (referred to as "DJ"), Dante Campbell, born […], 1999 (now age 19) and Daineil Campbell, born […], 2005 (age 13).

[2] What follows is my judgment about the issues raised during a multi-day trial of the Respondent's Motion to Change the Order of Justice Jane Kerrigan-Brownridge dated October 25, 2012 and the Applicant's Response to Motion to Change that Order.

[3] The governing Order of Kerrigan-Brownridge J. dated October 25, 2012 provides:

(a) The parents shall have joint custody of Dante and Daineil;

(b) Dante and Daineil shall reside with their mother primarily;

(c) The father has access to Dante and Daineil on alternating weekends from Fridays until Sundays at 8:00 pm. The father's weekends extend to include the Friday or the Monday if his weekend falls on a statutory or other holiday on the Friday or Monday;

(d) The Order contains a detailed holiday schedule;

(e) The father pays child support in the amount of $600 per month commencing on November 1, 2012. The Order states that this monthly amount was intended to be for all four children;

(f) The parties shall share special and extraordinary expenses pursuant to section 7 of the Child Support Guidelines, O. Reg. 391/97 as amended (the "Guidelines") in proportion to their incomes, after deducting any contribution of the child; and

(g) The parties shall exchange disclosure annually pursuant to section 24.1 of the Guidelines.

[4] The consent Order neither specifies either party's income at the time, the percent pursuant to which the parties were to share section 7 expenses, nor whether the monthly amount of child support ordered is supposed to be the table amount, or a departure from it.

[5] Although both parties' claims were not fully or properly pleaded, the trial proceeded on the understanding that both parents were seeking to change both the parenting and child support terms of the Order. And although the mother was the responding party to the Motion to Change, at a Trial Management Conference held on February 26, 2018, Justice Manjusha Pawagi directed that the mother would be the applicant and would present her case first based on the state of the pleadings at the time. So the trial proceeded in that order, in accordance with Pawagi J.'s direction.

PART II: THE PARTIES' POSITIONS

A. The Parties' Positions Concerning the Parenting Issues

[6] Despite their consent to joint custody in 2012, it was clear throughout the trial that the parents strongly dislike each other. They have been unable to communicate civilly with each other about their children for quite some time. In fact, this inability to communicate pre-dates the 2012 Order.

[7] Consequently, the mother seeks an order for sole custody of Daineil, the only child who remains a minor. She says that the parental conflict is impacting Daineil negatively. The mother is content that the holiday schedule in the Consent Order remain unchanged. She is prepared to agree that the father's regular access weekends should extend somewhat, to be from Fridays to Mondays, in accordance with an interim order that Pawagi J. made prior to trial. The mother says that the father should do all of the pick-ups and drop-offs of Daineil at his school when he has access though.

[8] The mother also seeks an order that the father must take Daineil to his basketball practices and games during his weekends. The mother says she will provide the father with the basketball schedule at the beginning of each season to ensure that he knows when and where to go. There has been conflict about Daineil getting to his basketball in the past, hence the need for a term in the order about this.

[9] The father's primary position is that he should have sole custody of Daineil. Alternatively, he says that custody of Daineil should remain joint, and the parties should use Our Family Wizard to communicate with each other. He asks that the Court order the parties to attending counselling.

[10] Regarding the parenting schedule, the father asks the Court to order a shared parenting schedule, with Daineil residing with him on Mondays and Tuesdays, with the mother on Wednesdays and Thursdays, and then with each parent alternating the weekends. Alternatively, the father says that Daineil should live with him on Saturdays after his basketball games, through to Tuesday morning, drop-off at school.

B. The Parties' Positions Concerning Child Support

[11] It was the father who commenced the proceeding respecting child support in his Motion to Change. He did so only on October 3, 2016. Regardless, both parents want the Court to vary the Order retroactively to a date that precedes October 3, 2016.

[12] The father's proposed retroactive date is September 2013. He submits this is the first month after Dainique moved out of the mother's house. So he says that starting in September of 2013, he should not have been paying child support for four children, which is what the Order of Kerrigan-Brownridge J. dated October 25, 2012 provides.

[13] After that, there were more changes to two other children's status or residential arrangements. As of February 2015, DJ came to live with him. Although it was not properly pleaded, the father wants a finding that DJ remains a dependant since he was hospitalized. In his opening trial statement, his counsel said he is seeking child support for DJ.

[14] Next, he says that child support for Dante ended too when Dante finished high school, so there would be a third adjustment.

[15] In short, the father's position requires multiple adjustments to the child support Order. He says that he over paid and he wants a "credit for excess funds" paid to the mother.

[16] On November 30, 2017, Pawagi J. gave the father leave to amend his pleading. He failed to do so. While the question of when the father's child support payments to the mother for DJ ought to have terminated was pleaded, a claim for retroactive and ongoing child support from the mother to the father for DJ was not. This potentially impacts DJ.

[17] Despite the deficiency in his pleading regarding child support, the trial proceeded with both parties understanding that there was a claim for DJ. The father said this in his opening statement. Both parties called considerable evidence about DJ's past and present circumstances. Throughout the trial, both parties were aware both that DJ's past status and ongoing child support for him was in issue.

[18] The Court will decide all the child support issues raised about DJ. As I will explain, the Court is finding that DJ suffers from an illness and he remains dependant on his parents at this time. If the Court were to do otherwise, the Court would be concerned about potentially denying a dependant's entitlement to child support simply because of the deficient pleading, even though both parents were given a fair opportunity to call evidence fully about the dependant (and they in fact did call such evidence).

[19] The mother's position about retroactivity changed at least twice during the trial. In her Opening Trial Statement, the mother asked the Court to vary the Order retroactively to October of 2013, which is 3 years before the commencement of this proceeding. In her closing, she asked the Court to vary the Order only back to 2014.

[20] The mother's position about the father's income changed at least four times during the trial. In her trial affidavit sworn May 30, 2018 she says that he can earn $150,000.00. Later in that same affidavit, she said that at least $100,000 should be imputed to him. At trial, she admitted that she wanted $150,000 imputed to him in the prior proceeding, but then abandoned that position and consented to the 2012 Order.

[21] In her Opening Trial Statement, she said she wanted the Court to impute an income to the father of $70,000 during the years in question. Even though the children's circumstances changed since the 2012 Order such that the mother is no longer entitled to child support for three of the four children, she says that the father ought to have paid her more child support because the income on which the 2012 Order was based, was too low.

[22] By the end of the trial, she modified her position and asked the Court to impute $75,000 in each year since 2014.

[23] As the mother has also claimed section 7 expenses and because the case involves retroactive support, it is not just the father's income that is in issue. The Court must determine both parents' incomes. The mother's income is straightforward. She is currently employed at the Ontario Lottery and Gaming Corporation. According to her year end pay stub for 2017, she made just under $40,000.00. The documentary evidence that she filed maps out her income in each year since the 2012 Order. Neither parent argued that anything other than the mother's Line 150 income ought to apply.

[24] The determination of the father's income was made unnecessarily more complicated than it ought to have been as a result of the positions that both parents took at the trial.

[25] Since mid-2017, the father works as a truck driver for a company called TrinCan Global Logistic Inc., delivering tires from a warehouse in Mississauga, to various locations in southern Ontario. He is not a salaried employee. He is paid a different amount per day to drive trucks depending on where he goes. To do this job, he needs his own vehicle and he is responsible for paying for the costs associated with the vehicle's use, like gas, insurance and maintenance, himself.

[26] According to the mother's trial affidavit sworn May 9, 2018, the father is a "self-employed contractor that operates under the company email: buildbyunason@hotmail.com. The [father] earns income by purchasing vacant real-estate property and building custom-built residential homes [2] that are then sold for a profit."

[27] The mother based her request to impute an income to the father retroactively on sections 19(1)(a) and (f) of the Guidelines. Her submissions heavily focused on her arguments that he is a "property developer". Although she did not specifically refer to sections 19(1)(e), (g) and (h), her arguments also engage those provisions of the Guidelines.

[28] The mother's end position that $75,000 should be imputed to him was arrived at by taking a four year average of what she says was the combined profit from the sale of one of the father's properties and various loans the father received, divided over four years. She says that the Court should treat the loans as gifts. In closing submissions, I was told that the aggregate of those various figures, averaged over four years is actually about $85,000 per year, but she says a conservative approach would be to impute only $75,000.

[29] What the evidence revealed at the trial though is that the father used money that was gifted to him by way of an early inheritance, combined with construction loans and various other loans from private lenders, friends and family, to build one house that he wanted to then sell to turn a profit. He soon realized that he couldn't afford this undertaking, and he actually lost money. He had little understanding of the mechanics of construction financing or what was entailed in building a house, until the project was underway. The project that he embarked upon took 7 years to complete. He sold the house that he tried to build in an unfinished state and he still owes people money.

[30] If the Court does not follow the mother's averaging approach and does not impute $75,000 per year to him, then the mother's alternative submission is that the father could earn between $50,000 and $60,000 per year. But as I will explain later, the father has never made that much money from employment since the 2012 Consent Order. He lacks the necessary education and employment experience to earn this level of income from employment.

[31] The mother also argues that the father failed to provide financial disclosure and that the Court should draw an adverse inference against him for this. When pressed for specifics though, the mother was only able to point to a single mortgage application that she says was not produced. Meanwhile, the father's counsel exposed non-disclosure on the part of the mother during the trial too. The Court is finding that the manner in which disclosure was dealt with by the parties was problematic in certain instances, but not to the extent that income should be imputed to the father as a consequence. I will explain why later in these reasons.

[32] By contrast, the father's position about his income is that the Court should use his Line 150 income in the relevant years, or alternatively that the Court should impute the same wage to him upon which the 2012 Order was based. Were the Court to go back in time and readjust the child support using the father's Line 150 income alone (quite apart from the changes in the children's circumstances over time), it would result in a reduction to the level of income that he effectively agreed to in 2012 and a further overpayment of support to the mother.

[33] Finally, the mother says that the father should pay for 50% of certain education expenses for DJ and special or extraordinary expenses relating to Daineil's basketball commencing in 2015 pursuant to section 7 of the Guidelines. She says she is owed $2,985.

[34] The mother further asks the Court to empower her to enrol Daineil in whatever basketball programs she wants going forward. During closing submissions, I asked whether this would mean that the father would then have to automatically share in those expenses if she selected programs without advance discussion. Although the mother is adamantly opposed to communicating with the father about any parenting issues and she cited basketball as one of the main areas about which the parents will have conflict in the future (thus prohibiting a joint custody order in her view), the mother agreed to discuss the financial cost sharing arrangements regarding basketball in the future.

[35] She gave this concession through counsel in response to my question in closing submissions only.

PART III: THE BASIS OF THE ORDER OF KERRIGAN-BROWNRIDGE J. DATED OCTOBER 25, 2012

[36] In order to assess properly the parties' competing claims, the Court must understand the basis of the Order sought to be varied.

[37] Regarding the parenting issues, as set out above, Kerrigan-Brownridge J.'s October 25, 2012 Order was a Consent Order. This means that the parents agreed to joint custody in 2012.

[38] In order for the court to vary the parenting terms of the Order, there must be a material change in circumstances within the meaning of section 29 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (the "CLRA"). It is not disputed that the parents' communication today is essentially non-existent. And when they do communicate, it is in a dysfunctional way.

[39] Both parents essentially argue that each should be awarded sole custody of Daineil now largely because of this inability to communicate. The mother links the importance of good communication to the management of Daineil's basketball going forward. According to the mother, Daineil is now getting older, he is playing competitive basketball and decisions will have to be made about where he will go to high school and university, but in order to play basketball. Financial decisions will also have to be made. And there may be medical decisions to be made. She says these are material changes in circumstances. Since the parents can't communicate, decision making will be a problem.

[40] The father is more general in his assertion of what is the material change. He says there is a "heightened unwillingness to communicate and cooperate" on their part. He says he is willing to try to communicate with the mother, but she is not. He blames the mother for this.

[41] It is not disputed by either parent that their inability to communicate was the state of affairs back in 2012 when they agreed to joint custody in the first place. An inability to communicate about the children is not new for these parents.

[42] Regarding the financial claims, the 2012 Consent Order is not clearly drafted. One the one hand, it is clear from the face of the Order (and from the parties' evidence) that the order was based on all four children then living with the mother primarily (even though DJ was away in the US completing high school on a basketball scholarship when the consent order was entered into). It is not disputed that since the 2012 Order, Dainique and Dante ceased being dependants, and DJ now lives with his father. These are changes in circumstances within the meaning of section 37(2.1) of the Family Law Act, R.S.O. 1990, c. F.3 (the "FLA") and section 14 of the Guidelines.

[43] But the 2012 Order does not specify the father's income on which the monthly amount of child support was based. While it makes provision for the future sharing of section 7 expenses, the Order does not specify the percentages for sharing, nor does it specify the mother's income so that the parents could figure those percentages out either. It might have been an easy adjustment for the parents to simply agree that the father's obligation to pay support changed from four children, to three and then to two, had the Order been properly drafted by them when they agreed to it, but that was not done. It was also unclear to me at first blush, whether the Order even provided for child support in accordance with an applicable child support table in 2012, or whether it was based on some form of a departure from the applicable table.

[44] This posed a preliminary problem at this trial, since the Court cannot assess the degree to which there has been a change in circumstances without this baseline information.

[45] At the trial, the mother essentially claimed that the amount of child support in the 2012 Order was arbitrary. She said the father wanted to pay her only $300 per month and that he separately promised to "take care of" her and the children apart from the child support order. She says that his proposed figure of $300 was not agreeable to her. Although her litigation position was then that income of $150,000 should be imputed to the father, she said in the result, she wanted him to pay $600 per month, and the parties ultimately agreed to this.

[46] The father's position is that he agreed to pay child support based on imputed minimum wage income. This yielded the $600 monthly amount for the four children.

[47] I have reviewed both the financial documentation put before me at this trial and considered the oral evidence I heard. The father's 2011 and 2012 Income Tax Information-Regulars reveal that the father reported no income at all in those years. As I will explain, the father lacks the education and work history to earn anywhere near the $150,000 that the mother was then seeking to have imputed to the father.

[48] I am led to the conclusion that the child support order was intended to be in accordance with the applicable table, and that it was based on an imputed income of $24,000 to the father for two reasons.

[49] First, as there were two children who were then over the age of majority, the table was not necessarily presumptive for them. But neither parent argued that a portion of the monthly child support in the 2012 Order was based on section 3(2)(b) of the Guidelines, rather that the straight application of the table.

[50] As such, in order for the child support Order to have otherwise departed from the table, it would have had to be based on the parents' consent. For the Court to have done so, it would have had to be satisfied that there were "reasonable arrangements" in place for those children. See sections 33(14) and (15) of the FLA. The Order makes no mention of "reasonable arrangements", and during this trial I heard absolutely no evidence from either parent to suggest that there were in fact "reasonable arrangements" put in place.

[51] Therefore, the only conclusion that I may draw from the evidence is that the parties agreed to an amount of child support that was intended to be based on the applicable table. I accept that that figure was a compromise, and the parties may have even worked backwards by coming up with a number that was affordable to the father and agreeable to the mother. But as part of this compromise, the parents necessarily had to agree to an income figure for the father, if not expressly than impliedly. Section 13 of the Guidelines requires that the incomes be determined.

[52] The income required at the time of the 2012 Order to yield a monthly payment of $600 per month for four children according to the December 31, 2011 tables then in place was $24,000 per year. By comparison, Ontario's minimum wage was then $11/hr. I note that $24,000 per year would have been slightly higher than the minimum wage back in 2012 (assuming full time hours), but it was close. I find the amount of child support the father agreed to pay to be consistent with his belief that he agreed to an imputed minimum wage income.

[53] Therefore, I find that the Order of Kerrigan-Brownridge J. included child support for four children in accordance with the applicable table based on an imputed income to the father of $24,000.00. As income was imputed to the father, the test that applies in a variation proceeding is more nuanced than simply comparing the father's reported income in the subsequent years to the income he had at the time of the Order. Nor is it a foregone conclusion that just because his Line 150 income was less than $24,000 in the years since the Order that he should have paid less child support and that he will now get a reduction and a credit for an overpayment.

[54] Then there are the mother's various arguments about whether even more income ought to be imputed, which I will address.

PART IV: PRIOR LEGAL PROCEEDINGS

[55] The Court made a number of interim orders prior to trial. The Court attempted to organize the parties to ensure that the case would proceed smoothly. Unfortunately, a number of disclosure issues arose throughout the prior proceedings and during the trial.

[56] The prior interim orders that are relevant to this trial are:

(a) On December 21, 2016, at a case conference, Pawagi J. noted an admission, that the parties agreed that DJ left the mother's care in February of 2013, and Dainique in June of 2013.

Pawagi J. otherwise directed the parents to exchange certain disclosure with each other. The mother was to provide her income tax returns and notices of assessment for 2013 to 2015, her year end pay stubs for 2013 through 2016 and her bank and credit card statements for 2013 to 2016. The father was to provide the mother with the exact dates he says that DJ and Dainique were in his care, copies of mortgage applications for his Winston Churchill and Caledon properties, and his bank and credit card statements for 2013 to 2016.

Pawagi J. also endorsed that the parties could request additional disclosure of each other in writing and that each was to respond in writing prior to the next court date;

(b) On January 20, 2017, Pawagi J. adjourned the scheduled court date at the father's request. The father had changed lawyers and he had not provided the disclosure that he was previously ordered to provide by this date. Pawagi J. reserved costs of this attendance;

(c) On March 9, 2017, in a related enforcement proceeding, Pawagi J. ordered the father to make a child support payment of $2,399, and she ordered that ongoing child support be held by the FRO pending the disposition of the Motion to Change;

(d) On April 5, 2017, Pawagi J. terminated the hold that she had ordered on March 9, 2017 and she varied child support on a temporary basis to be $360 per month commencing December 1, 2016 for two children, based on an imputed income of $24,100. She ordered that the father would have access to Daineil on alternate weekends from Friday to Mondays, with pick-ups and drop offs at school, commencing April 7, 2017, and she made an order for the release of information concerning Daineil and Dante to the father;

(e) On April 12, 2017, Pawagi J. granted the father leave to amend his Motion to Change and to seek child support for DJ and for Dainique. She imposed deadlines for this (that were not followed by the father).

Pawagi J. ordered the father to produce his statement of business activities for 2014 to 2016 setting out his income and expenses, and a medical report for DJ setting out his medical condition and how it impacts his ability to work.

Pawagi J. also ordered the mother to provide confirmation of how she paid for a home that the parties previously lived in and her 2016 income tax return and notice of assessment, if available.

Finally, Pawagi J. ordered that the mother was to place the father on the pick-up list for Daineil's school, that the father could pick Daineil up early from school, and that the father would advise the mother by email about this if he planned to do so. She ordered the parents to exchange email addresses;

(f) On July 6, 2017, the father did not attend court, and by that date, he had not provided the disclosure ordered on April 12, 2017. Pawagi J. ordered him to pay costs of $100 for the wasted appearance;

(g) On September 26, 2017, Pawagi J. made a further disclosure order directing the mother to provide an itemized list of all the disclosure she sought, proof of Dante's full time attendance at school, the exact wording of the order she sought regarding child support, s. 7 expenses and access, and the exact dates and times of all sports practices that Dante and Daineil are required to attend on access weekends.

Pawagi J. ordered the father to provide his response to the disclosure list, a medical report previously ordered and the exact wording of the order he sought.

And Pawagi J. ordered the father to pay $1,800 to the FRO by November 1, 2017 to bring himself up to date, and she ordered him to take Dante and Daineil to practices and games on his access weekends if addresses and times had been provided to him in writing;

(h) On November 8, 2017, Pawagi J. ordered both parents to provide a number of disclosure items to each other. She made a temporary default order that the father would pay ongoing support of $360 per month commencing December 1, 2017 and arrears of $1,800 by January 15, 2018, failing which there would be certain committal terms for missed payments;

(i) On November 30, 2017, Pawagi J. again ordered the parents to exchange amended pleadings by specified dates, which was not done;

(j) On February 26, 2018, Pawagi J. conducted a Trial Management Conference. Unfortunately the father was unrepresented at the time of this conference. He was later able to retain counsel again.

In any case, Pawagi J. made an order containing various trial directions, including about the order of presentation at the trial as I stated above;

(k) On March 19, 2018, O'Connell J. scheduled a two day trial to proceed in the May 2018 trial sittings. She also scheduled a further trial management conference before Pawagi J. on April 16, 2018;

(l) On April 12, 2018, Pawagi J. vacated the April 16, 2018 date and scheduled a trial management conference before me as the trial judge instead on April 18, 2018;

(m) On April 18, 2018, I presided over a trial management conference. Based on my discussions with the parties, I imposed deadlines for the parties to deliver trial briefs, I listed the documents to be included in the briefs and I specified who the witnesses would be. I also memorialized the time estimates that the parties had provided for the various witnesses to testify. At that point, the time estimates were such that there would be 9 ½ hours of testimony. As a result, I endorsed that a 3rd trial date may be required;

(n) On May 4, 2018, I granted the father's 14B Motion and set fixed trial dates for May 9, 11 and 16, 2018 to accommodate scheduling issues that the father's lawyer was facing. I also made certain adjustments to timetable for the delivery of trial documents;

(o) The parties and their counsel were unable to complete the trial in the allocated time. The Court had to book additional trial dates. And twice during the trial I made production orders as a result of the evidence that unfolded;

(p) On May 16, 2018, I ordered the mother to obtain and produce certain documentation at the father's request; and

(q) On July 10, 2018, I ordered the father to produce his complete tax returns for 2009 to 2012, his notices of assessment or reassessment for 2009 to 2012 and his notices of reassessment for 2013 to 2016 and 2017 if applicable and available. I ordered him to produce proof that an audit is underway by the CRA and proof that he had actually filed his T1 adjustment requests with the CRA. I also adjourned the trial to permit the mother more time to prepare to cross-examine the father's accountant. I will explain this particular endorsement in more detail below, the reasons for it and how it impacted the trial and the issues before the Court.

PART V: IMPORTANT FACTS CONCERNING THE CHILDREN'S CIRCUMSTANCES

A. Dainique, Age 25

[57] As set out above, Dainique is now 25 years old. She is an independent adult. There is no claim for ongoing child support for Dainique, but the period of time that the mother was entitled to child support for Dainique in the past was disputed for most of the trial. The mother claimed to be entitled to support for Dainique for about an extra two years beyond what she was entitled to. The admission that Pawagi J. noted in her December 21, 2016 endorsement was within two months of the actual date of Dainique's departure. But then the mother challenged the admission, saying she felt pressure to agree. It was only after the Court heard evidence about this, including from Dainique, that the mother abandoned the position that she took at trial about Dainique in this regard.

[58] I begin with the mother's evidence about Dainique's educational history. It was unclear. According to the mother, Dainique graduated high school in 2011 or 2012. After high school, she attended Sheridan College. She changed programs twice and eventually graduated from a marketing program with honours. According to the mother, Dainique took a 5 year program.

[59] The mother also testified that she helped Dainique secure employment at Shoppers Drug Mart. The mother worked there too. At one point Dainique held part-time employment at Cineplex as well.

[60] I did not find the mother's evidence about Dainique's departure from her house to be credible. It is common ground that Dainique started spending time at her paternal aunt, Rosemary Gordon's house, after she graduated from high school as Ms. Gordon lived closer to Sheridan College. But to support her position that the father should pay support for Dainique right up until 2015, the mother claimed that Dainique lived with her paternal aunt, Rosemary Gordon (she didn't say as of when), only temporarily and because it was more "beneficial" for her to get to school from the aunt's house. The mother claimed that Dainique only stayed there at times, for example when she had early morning classes.

[61] The mother testified that Dainique's move to the aunt's house only became permanent in 2015. She insisted that until 2015, Dainique hadn't really moved out. She claimed that Dainique went back and forth between households, and that she kept her belongings in her mother's house. She also testified that Dainique's mail continued to come to the house after 2013 thus maintaining that the house remained Dainique's primary residence.

[62] To respond to this evidence, the father called both Dainique and his sister, Ms. Gordon, to testify. I found both Dainique's and Ms. Gordon's evidence about Dainique's departure from the mother's home to be more credible than the mother's and I prefer their evidence on this point.

[63] During Dainique's evidence, it became quickly apparent that Dainique has not lived with the mother at least since the summer of 2014. Dainique could not remember the specific date of her move, but she recalled that she had spent at least "four Christmas-es" in her aunt's house. Dainique's aunt, Ms. Gordon, later confirmed that Dainique's move actually became permanent as of August of 2013. Ms. Gordon was able to place the move temporally with another event that occurred in her life that summer when explaining why the move became permanent in August 2013, as opposed to in 2014.

[64] What happened that summer is that the mother told Dainique she could no longer live in her home as a result of a dispute about money. The mother wanted Dainique to pay between $100 and $150 per pay cheque (every two weeks) towards rent. Dainique did not agree. In August of 2013, Dainique was in fact at her aunt's temporarily for convenience while taking a summer course at Sheridan. While there, the mother had a friend of Dainique's telephone Dainique to tell her not to come home, unless she was prepared to agree to pay money to the mother for rent.

[65] Ms. Gordon testified that she was present at home when Dainique received the telephone call from the friend about the rent request. She observed Dainique to be upset in tears.

[66] It also became readily apparent to the Court during the trial that Dainique and her mother do not enjoy much of a relationship together anymore. Dainique testified that they do not really talk. When they do, heavy topics are off limits. They are more or less estranged. They have not enjoyed much of a relationship since Dainique left in 2013.

[67] The mother described the nature of her relationship with Dainique differently. She called it "strange". She referred to Dainique as a "daddy's girl". The mother also said she believes that Dainique was resentful towards her for not have any "dealings" with the father.

[68] I prefer Dainique's evidence about the nature of their relationship over the mother's description. I find the mother avoided acknowledging the true state of affairs.

[69] While the mother claimed that Dainique's termination date shouldn't be until 2015, the mother also called evidence that was inconsistent with her position on this point. Both of the mother's friends confirmed that the mother had told them about the dispute over the rent. The mother's friend, Arlene Bailey, has been the mother's friend for 24 years. While she and the mother do not see each other in person as often as before, they speak daily on the telephone to one another. Ms. Bailey was aware of the rent dispute, and in fact she testified about what she had been told by the mother. She said Dainique "decided" to go live with her aunt as a result of this dispute about money. The mother's other friend of many years, Sheryl Stewart, also testified on this point. Although to some extent she repeated the mother's version of events that Dainique went back and forth between households, she was aware of the dispute.

[70] During the trial, the Court expressed concerns about the parents having put Dainique in the middle of this dispute between them. There had already been some form of an agreement by then about Dainique that Pawagi J. reflected in the December 21, 2016 endorsement. It was more or less accurate about Dainique's departure date within a couple of months. But then the mother litigated this issue anyway.

[71] Although she is 25, Dainique was clearly nervous and visibly upset during her evidence. And to make matters worse, early on during Dainique's evidence in chief, I observed the mother to be staring at her from the left side of the court room, while the father cried from the right side. The Court intervened and asked the parents if they would agree to leave the court room during Dainique's evidence, with only their lawyers remaining. They agreed. The Court ordered a transcript of Dainique's evidence to provide to the parents.

[72] It ought not have been necessary to have Dainique testify at the trial.

B. DJ, Age 24

[73] DJ lived with his mother until January of 2015. The parties agree that he went to live with his father as of February 1, 2015. This happened right around the time he was diagnosed with schizophrenia. He still lives with his father today. The mother wants child support for DJ up until his move with his father, but then she asks that it abruptly terminate. The parents do not agree whether the father is entitled to support for DJ as of February 1, 2015 when he moved in with his father.

[74] At the time of the 2012 Order, DJ was in high school. He did not live with his mother entirely during high school though. Rather, when DJ was in grade 10 or 11 (he was taking courses in both grades in one year), he was 'scouted' to play basketball. The mother testified that DJ obtained three different scholarships to attend different high schools in the US to play basketball.

[75] The mother did not consult with the father about this aspect of DJ's education. Rather, she and her friend, Ms. Bailey, went on a trip with DJ to visit one of the schools that had offered him a scholarship, which was in Syracuse, New York. Upon seeing it, the mother said, "it wasn't quite what [they] expected". But she continued to explore the other schools that had offered DJ money. Again without consulting the father, the mother settled on DJ finishing high school in Houston, Texas. She testified that she and Ms. Bailey moved DJ to Texas in the summer of 2012. This pre-dates the 2012 final joint custody order, which nevertheless provides that the father would be paying child support for all four children. But neither parent seriously contested that the father ought to have paid for DJ even though he was away for high school in the US.

[76] Unfortunately, DJ did not finish high school in Texas. According to the mother, the school was "red-flagged by the NCAA", there was a "huge law suit" and the mother also said she couldn't "financially afford it". I do not fully understand what this all means, but the evidence was that as a result, DJ was back in Canada by the end of 2012, or early 2013. According to the mother, DJ did not even complete a full year in Texas. The evidence was unclear as to where DJ completed high school. The father testified that he did complete high school in Georgetown.

[77] According to the mother, at some point after coming back from Texas, DJ obtained another offer, this time for a full scholarship from Niagara College to play basketball at the college level. The mother ended up moving DJ to Welland, Ontario. She said he moved there in about April of 2013.

[78] The mother says that she borrowed money for DJ's first and last months' rent, but that DJ otherwise applied for and received OSAP to fund the cost of his education.

[79] The mother testified that DJ's mental health started to deteriorate after that. The mother was unclear about what exactly happened to DJ while in Welland, but there was an incident one night that led to his return to his mother's home. Although the mother was not present, she told the Court that DJ's landlord had evicted him following an incident involving garbage, holes in the wall, and other boys playing a trick on DJ. Whatever it was that happened that night, in the result, the mother went to get DJ from Niagara and he dropped out of Niagara College. She said this happened in or around January of 2015.

[80] The father was not fully aware of what happened to DJ in Welland either. He testified that he asked DJ about it, but DJ said he was "ok" and "handling it". The father never asked the mother to explain what had happened. Instead, he told the Court "there's no one else for me to ask".

[81] After DJ returned to the mother's house at the beginning of 2015, the mother started to notice behaviours in DJ that were concerning to her. She said DJ was wearing multiple layers of clothing, he wasn't showering and she noticed that he had become aggressive towards Dante. She was concerned that he was doing drugs.

[82] Her friend, Ms. Stewart, testified that she noticed similar concerning behaviours. On Ms. Stewart's advice, the mother called the father and had DJ go and to live there with his father. The father described DJ's departure from the mother's home as the mother having "kicked DJ out of her house".

[83] In his evidence in chief, the father partially blamed the mother for DJ's condition. The father testified that DJ had told him that he didn't want to play sports anymore, but his mother forced him to do so, so that he would get a scholarship. He said the mother had "shipped [DJ] off" without financial or emotional support. There is no evidence that the father made any effort to speak to the mother about his concerns when this was happening, nor that the mother tried to involve the father in discussions about DJ's education.

[84] At some point in March of 2015, the mother testified that she received a telephone call from a friend of Dainique's, who told her that DJ was not well. As a result, the mother went to pick up DJ and took him to the emergency department at the hospital. The mother made no effort to speak to the father as this first health crises unfolded.

[85] The mother and her friend Ms. Stewart were present at the hospital. The mother testified that she was told by an unnamed doctor in the emergency room, that DJ was exhibiting signs of schizophrenia. The mother did not telephone the father to tell him of this news; rather she had Ms. Stewart do it.

[86] When DJ was discharged, the father came to pick him up from the hospital.

[87] In or around later in March of April of 2015, DJ was hospitalized again. Both parents agreed that this was done pursuant to a "Form 2". The mother testified that the father became DJ's "substitute decision maker" because he had filled out the "Form 2". But she later took steps to change that.

[88] The father said that he had to obtain multiple "Form 2's" during the time DJ was residing with him. I am not clear about the number of hospitalizations that DJ was subjected to as a result of a "Form 2". The evidence appeared to be that only one was acted upon. Regardless, DJ was hospitalized for a number of months. The mother testified that he remained in the hospital for about 4 months.

[89] Upon his release from the hospital, DJ went back to his father's home. The mother testified that DJ was placed on a "Community Treatment Order" after that. She explained that the police would compel DJ to follow his prescribed medical treatment if DJ did not do so voluntarily. I did not hear any evidence that the "Community Treatment Order" had to be acted on. The mother acknowledged that the father took DJ to get injections every 28 days, and DJ also took his oral medication as prescribed. However, this then became a problem about 2 years later, in 2017.

[90] The mother testified that at some point in the first part of 2017, she telephoned a social worker involved with DJ's care to get an update (as opposed to the parents speaking to each other) and she discovered that the "Community Treatment Order" had been "cancelled". She said that the father had cancelled the order and had taken DJ off his medication. For his part, the father claimed he did this in consultation with DJ's treating health care providers on a trial basis to see if he could come off his medication, but this was not the evidence that I heard at the trial.

[91] The mother testified that she was "livid" and "disgusted" that the father had done this. She also testified that she believes the father took him off the medication "wilfullly", "to provide that he would have to look after DJ", so he could "collect child support".

[92] At the trial, she criticized the father for not consulting with her first before taking DJ off his medication. Yet she didn't speak to him at the time.

[93] Instead, and despite her criticism that he had acted unilaterally in cancelling the medication, she then responded in kind. She went to the hospital and tried to see DJ's treating physician, Dr. Ohine Darko, but she was unable to see him in the moment, so she booked an appointment. She also asked DJ's social worker to help get DJ back on the "Community Treatment Order". While there, and also without any communication with the father, the mother completed some more forms to now make herself DJ's "substitute decision maker", even though DJ remained living with his father.

[94] As a result of these steps, a meeting with the parents, the social worker, Dr. Darko and another person involved in DJ's care, Lloyd Connell, was convened. The mother's friend Ms. Bailey was also present. The meeting happened on April 28, 2017.

[95] The mother testified that on May 26, 2017, DJ began taking his injections again.

[96] I was told that the mother intended to call Dr. Darko at the trial. Then she did not call him. She did call Mr. Connell to testify.

[97] Mr. Connell has worked for the John Howard Society for about 3 years. For the past 1 ½ years, he has worked as a case management officer with "Peel's Alternative to Choosing Hospitalization" Program (the "PATCH program). He explained that his job entails helping with client care. He said he attends hospital visits and provides counselling services for clients. He explained that the purpose of the PATCH program is to help stabilize people, who have had multiple hospital visits, in the community. He said he assists with housing first, and then does long term case management thereafter.

[98] DJ became Mr. Connell's client in about January of 2017. Mr. Connell testified that his work with DJ has involved counselling and accompanying him to appointments. He also said they also work on DJ's future goals together. He testified that DJ says he wants to get a job, so Mr. Connell has made referrals to programs for DJ and has supported him to get into the work force.

[99] Mr. Connell confirmed some of the mother's evidence about the father's conduct surrounding having DJ taken off his medication. Mr. Connell testified that at the aforementioned meeting, the father said that DJ didn't need either injections or oral medication.

[100] Mr. Connell testified about DJ's progress since becoming involved in his care starting in January of 2017. He said he speaks to DJ on a regular basis and sees him at least once per month. He testified that DJ has recently completed a 16 week work program offered through the YMCA, which included a job placement. While he testified that DJ did "excellent" (this was hearsay evidence, the source being a worker at the YMCA program) and actually obtained a job after the program, the job didn't last.

[101] Mr. Connell testified that he thinks DJ's work goals are attainable. But by the same token, the job that DJ obtained involved factory work, it didn't last and Mr. Connell testified that the job wasn't "the right fit". Mr. Connell did not know how many hours per week DJ actually worked, whether he could handle more or less hours (as he did not know the amount of work), what DJ actually earned nor the reason for the job not working out.

[102] Mr. Connell has referred DJ to employment counsellors. He also referred him to a course so DJ can learn about how to create a resume, how to undertake a job search and to obtain interview skills. But as of the time of this trial, DJ hadn't found a job. Mr. Connell was concerned that DJ hasn't been proactive with the employment counsellor.

[103] To some degree there is an acknowledgement by the mother that DJ is not yet self-supporting. She testified that she told DJ to be more aggressive in his efforts to find a job. On her own admission in her evidence in chief, the mother testified that DJ has a "little way to go".

[104] Finally, there was no evidence about DJ having applied (or not applied) for ODSP. In closing submissions, I was told that DJ did not want to apply.

C. Dante, Age 19

[105] Dante now lives on his own. The mother initially testified that Dante's primary residence is currently with her, but she also testified that he actually lives in housing near Yorkdale Mall.

[106] Dante graduated high school in June of 2016. He is trying to be a professional athlete. He plays soccer for the Toronto Football Club. He is on the Canadian National Team. He has also been selected to compete in the Olympics for Canada.

[107] The mother testified that after high school, Dante signed a two year contract with the Toronto Football Club.

[108] The mother explained that Dante is paid $700 per month to play soccer. The Toronto Football Club also pays for Dante's residence, but Dante pays for his own meals.

[109] The mother's testimony about Dante happened on the May 11, 2018 trial date, which was the second day of trial. As of that date, she said that she had previously made an agreement with Dante for him to start post-secondary education in January of 2018, but it had not happened. She claimed she would be revising this discussion with him in September of 2018. By the end of the trial (in September 2018) I heard no updating evidence about Dante having enrolled in a post-secondary program. To the contrary, the evidence throughout the trial is that Dante is 100% focused on soccer. There is also an agreement that child support ends for him as of the end of high school. The evidence is that Dante is pursuing a career as a professional athlete.

D. Daineil, Age 13

[110] Daineil is now 13 years old. He lives with his mother primarily, which has been the case since the separation and after the 2012 order. He is in grade 8 at […]. He is the only remaining child who is the subject of the current parenting dispute between the parents. There is no question in this trial either that Daineil remains entitled to child support.

PART VI: LAW AND ANALYSIS REGARDING CUSTODY AND ACCESS

A. Applicable Statutory Provisions

[111] A number of legal principles govern the custody and access claims before the Court. Of course, various sections of the CLRA govern this proceeding. They are:

Merits of application for custody or access

24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best interests of child

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

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

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

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

and

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

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

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

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

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

(h) any familial relationship between the child and each person who is a party to the application.

Past conduct

(3) A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.

Violence and abuse

(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child.

Powers of court

28 (1) The court to which an application is made under section 21,

(a) by order may grant the custody of or access to the child to one or more persons;

(b) by order may determine any aspect of the incidents of the right to custody or access; and

(c) may make such additional order as the court considers necessary and proper in the circumstances, including an order,

(i) limiting the duration, frequency, manner or location of contact or communication between any of the parties, or between a party and the child,

(ii) prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child,

(iii) prohibiting a party from changing the child's residence, school or day care facility without the consent of another party or an order of the court,

(iv) prohibiting a party from removing the child from Ontario without the consent of another party or an order of the court,

(v) requiring the delivery, to the court or to a person or body specified by the court, of the child's passport, the child's health card within the meaning of the Health Insurance Act or any other document relating to the child that the court may specify,

(vi) requiring a party to give information or to consent to the release of information respecting the health, education and welfare of the child to another party or other person specified by the court, or

(vii) requiring a party to facilitate communication by the child with another party or other person specified by the court in a manner that is appropriate for the child.

Order varying an order

29 A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

Child entitled to be heard

64 (1) In considering an application under this Part, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them.

B. Applicable Legal Principles Concerning the Custody and Access Claims

(1) Material Change In Circumstances

[112] As there is already a final custody and access order in place, this is a variation proceeding that is governed by section 29 of the CLRA. This Court may not make an Order that varies Kerrigan-Brownridge J.'s Order unless "there has been a material change in circumstances that affects or is likely to affect the best interests of the child." Therefore, the Court must first determine whether there has been a material change in circumstances that affects or is likely to affect the best interests of the child. The party seeking to change the order bears the initial burden of establishing that there has been a material change in circumstances.

[113] The leading case, both as to the requisite material change threshold that the Court must apply, and then the analysis that follows if a material change is found, is Gordon v. Goertz. Although Gordon v. Goertz was decided as a variation pursuant to section 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), its principles apply to cases decided under the CLRA.

[114] At ¶ 10-16 of Gordon v. Goertz, McLaughlin J. defined what will amount to a material change. She wrote, "[c]hange alone is not enough; the change must have altered the child's needs of the ability of the parents to meet those needs in a fundamental way"… and "[t]he question is whether the previous order might have been different had the circumstances now existing prevailed earlier". And, "…the change should represent a distinct departure from what the court could reasonably have anticipated in making the previous order."

[115] In a case like this, where the 2012 Order was based on the parents' consent, the new circumstances must not have been forseen or reasonably contemplated by the by the parties. See L.M.P. v. L.S., 2011 SCC 64.

(2) Custody

[116] Concerning the scope of the inquiry, at ¶ 17 of Gordon v. Goertz, McLaughlin J. wrote, "once a material change is found, the Court should consider the matter afresh without defaulting to the existing arrangement". If the Court finds there is a material change, then it must consider all factors relevant to the children's best interests in light of the new circumstances. As McLaughlin J. held at ¶ 47, "There is neither need nor place to begin this inquiry with a general rule that one of the parties will be unsuccessful if he or she fails to satisfy a specified burden of proof".

[117] In considering the children's best interests if a material change is found, the Court must be guided by the statutory criteria set out in section 24(2) of the Act. In accordance with Van de Perre v. Edwards, 2001 SCC 60 at ¶ 10, the Court should consider the applicable statutory factors in light of the evidence before it.

[118] One of the main questions in this case is whether the joint custody order respecting Daineil should continue, or whether the Court should award sole custody to either of the parents.

[119] In Kaplanis v. Kaplanis, the Ontario Court of Appeal set out a number of principles relevant to determining whether joint custody is appropriate. In a nutshell, the parents must have the ability to make effective decisions about their children. Joint custody should not be used as a tool to force parents to communicate better. No matter how detailed the custody order, there will be gaps that arise.

[120] One the one hand, courts do not expect communication between parents to be free of conflict. The standard of perfection is not required. But there must be a reasonable measure of cooperation in place. See Griffiths v. Griffiths, 2005 ONCJ 235; see also Warcop v. Warcop.

[121] Nevertheless, courts sometimes order joint custody even in the absence of reasonably effective communication. For example, a joint custody order might be appropriate where it is necessary to preserve the balance of power between the parties, such as in a case where both parties are caring and competent parents, but one party has been primarily responsible for the conflict between the parties: see Roloson v. Clyde, 2017 ONSC 3642; or where one parent is not promoting the relationship with the other parent: see Andrade v. Kennelly, 2007 ONCA 898.

(3) Access

[122] The test for determining access is also to be decided based on the best interests of Daineil. Like respecting its determination about custody, the Court must decide access based on the best interest factors set out in subsection 24(2) of the CLRA, in light of the evidence before it.

[123] I am also mindful that the Court should strive to order a result that maximizes the time that each parent may have with Daineil, insofar as that is consistent with his best interests.

C. Has There Been A Material Change in Circumstances?

[124] As I said already, the only real area that the mother identifies that the parties may need to agree about in the future for Daineil in the future is basketball. Even decisions about his education are tied to basketball in the mother's view. Other issues, like health, may of course arise, but no such issues are currently envisioned. Daineil is healthy.

[125] I begin by acknowledging that the mother has done more of the heavy lifting respecting parenting historically (and after the 2012 Order). Regarding their communication, the mother said that her inability to communicate with the father stemmed back to 1998. She said she was "ok" with a joint custody order in 2012 because even though she said they had never gotten along, she agreed to it on the basis that they would be "amicable" with one another.

[126] I will come back to this later, but I note that in spite of the historical division of labour about parenting and their already existing very poor communication in 2012, they agreed to joint custody. Yet now both parents want the Court to vary the joint custody order for Daineil based largely on an inability to communicate.

[127] The Court initially questioned whether there had been any material change in circumstances at all. Simply, there was conflict when the parties agreed to joint custody in 2012, and there is conflict now.

[128] However, as the evidence unfolded it became clear that the existing joint custody order and the access terms have not been followed. In my view continued joint custody risks that Daineil will continue to be placed in the middle of parental conflict. I find that the conflict between the parents has worsened. I agree that their "heightened inability to communicate" and their inability to make decisions in Daineil's best interests is a material change in this case.

[129] I say this for the following reasons.

[130] I heard almost no evidence of any joint decision ever having been made since the 2012 order. The mother testified that she has no communication with the father at all about Daineil. She said there is "zero communication" and they have never made decisions together. Since having counsel, the mother sends messages through her lawyer.

[131] The mother is not even willing to try to communicate with the father. She does not want to share school information with the father. She says the father should make his own parent-teacher interviews. When asked whether she would communicate with the father about Daineil's school lunch program, she responded that the information was on the internet and there was no need to communicate.

[132] As I alluded to earlier in these reasons, the father, by contrast, said he is willing to try to communicate with the mother. He said he does not have any "personal issue" with the mother and "as far as my kid goes, I can work with anyone".

[133] He did however acknowledge that the parties' current level of communication is insufficient for them to resolve issues concerning Daineil together.

[134] But he did not acknowledge the role he played in creating the current situation.

[135] The parents' communication is so poor that they did not even know where each other lives. It was astounding to hear counsel for the father submit this in closing arguments. I had to order the parties to exchange addresses, which they then did on the spot. I do not understand why they had to wait for the Court to order them to tell each other their current addresses. I note that Pawagi J. previously ordered the parents to exchange email addresses as part of an interim order in an apparent attempt to regulate communication between them.

[136] While the mother claimed to have been "ok" with the joint custody arrangement to which she agreed back in 2012, very soon after the Order was made, her feelings about it clearly changed. It is clear that the mother views herself as the primary decision maker for the children and she views the father as involved with the children only when it suits him. She has acted as if she had sole custody.

[137] As I have already explained to some degree when summarizing the evidence about the children's circumstances, the mother made decisions about the children's health, education and activities almost always without input from the father. There are more examples of this beyond those to which I have referred above.

[138] Moreover, there is at least one example of the mother failing to even acknowledge the father's existence. In 2013, the mother completed school forms for Dante when he was starting high school. She indicated that she was his sole custodial parent. In fact, there is no mention of the father on the forms at all. Rather, the mother listed Dainique as the second parental guardian, and her friend, Ms. Bailey as the emergency contact.

[139] In cross-examination, she said she was "well aware" that the order provided for joint custody, but she justified the manner that completed the form by saying that she was the "primary decision maker" and the father was "MIA" (missing in action).

[140] The parents did not follow the schedule in the 2012 Order, and this led to conflict between them. The parents were not only having the older children arrange their access with the father directly, but they were sometimes using the older children as conduits to arrange Daineil's access too. Or sometimes the father and Daineil spoke directly to one another about the access arrangements, albeit this was not without problems. I heard considerable evidence about conflicts over scheduling, even though the schedules in the governing order and a subsequent interim order that Pawagi J. made prior to trial were clear. In some instances, Daineil was clearly placed in the middle of the conflict, or at least made aware of it.

[141] The mother accused the father of not having followed the schedule, and the father accused the mother of acting unilaterally to change it, and of not communicating. I will highlight some of the examples of conflict around scheduling that I heard about.

[142] The mother testified about an incident that she said occurred two or three years ago. According to her, when Daineil was in grade 5, the father tried to pick the child up from school, but he had never done so before. According to the mother, the school principal had to become involved.

[143] I accept that the mother found it inappropriate for the father to just show up at the school unannounced. I agree it was inappropriate to do so and there should have been advance discussion.

[144] But then the mother escalated the situation unnecessarily. She responded by telling the father that she would go to court to get "an enforcement order". She also candidly admitted in her evidence in chief that she then went into the school and gave a direction that the school should inform her if anyone was trying to pick Daineil up. She said she sent an email to the father's lawyer. Most concerning, she involved Daineil, telling him that "at no point was anyone allowed to pick him up without [her] consent". She made this comment because his father tried to pick him up.

[145] On another occasion, the mother planned a trip for two of the children to the United States without telling the father. This would have impacted the schedule. But that was not the father's complaint. He felt there ought to have been advance discussion before the children left the country (which there should have been). The father said he only learned about the trip from DJ, when he and Daineil were already en route to the airport. Although DJ was an adult at the time, Daineil was travelling too. The father did not know where the children would be. The parents do not speak to one another, so he tried to ask questions and eventually sent a message to DJ that he would meet the boys at the airport. Then, DJ's cell phone got turned off.

[146] So the father drove out to the Toronto airport but the boys were not there. The father later learned that the mother had the boys fly out of Buffalo. The boys came back at the end of the summer. I was not told who was taking the boys to the airport when the father was trying to get information about the trip on the day of. But in any case, the mother did not tell the father about the trip.

[147] The father testified that he later learned where the boys were, not from the mother, but only because the maternal grandmother telephoned him. He said the grandmother felt he should know where the children were.

[148] More generally, the father questioned the propriety of the mother having sent the boys to Florida to spend time with her mother at all, saying that the mother's relationship with her mother (the grandmother) was not "pleasant".

[149] Although it was the subject matter of a dispute between them several years earlier, the father's ability to pick Daineil up at school continued to be a problem well into this litigation. On April 5, 2017, on consent, Pawagi J. made an order that the father would have access to Daineil on alternate weekends. Then seven days later, on April 12, 2017, again on consent, Pawagi J. ordered that the mother was to place the father on the pick-up list for Daineil's school, that the father was allowed to pick Daineil up early from school, and that the father would advise the mother by email if he planned to do so. She ordered the parents to exchange email addresses.

[150] While I acknowledge these were consent orders, their subject matter then remained contentious issues between the parties such that these further orders were made. Indeed, in cross-examination at the trial, the mother admitted that prior to Pawagi J. having made these orders, the father was still not authorized to pick up Daineil at school.

[151] There has been police involvement with this family. The mother has telephoned the police to complain about the father at least twice while these proceedings were ongoing.

[152] The first such telephone call happened at some point in 2017. According to the mother, Daineil had been in his father's care the weekend before the incident involving the police. The next weekend, the father was dropping off Dante at her house. Meanwhile, Daineil was apparently getting ready to go to Canada's Wonderland with the mother's new boyfriend. According to the mother, the father ordered Daineil to get in the car. So the mother telephoned the police.

[153] The mother involved the police again at Christmas time in 2017, this time alleging that the father had threatened her. According to the mother, Daineil had been with his father from Friday, December 22, 2017 to Christmas day. Regarding the following weekend, the father apparently sent Daineil a text message saying that he would be picking him up. According to the mother this wasn't part of the arrangement.

[154] I am not clear why Daineil was with the father on Christmas day as the Order of Kerrigan-Brownridge J. dated October 25, 2012 provides that the father was to have the second half of the holiday. In any case, the father then telephoned Daineil on December 30, 2017 to tell him that he would be picking him up by 7 pm. I note that the father was entitled to have Daineil in his care for the second half of the school break.

[155] When the father telephoned Daineil, Daineil proceeded to put the father on the speaker phone, with the mother listening in the background, and told his father that he couldn't come. According to the mother, the father then told Daineil that if he wasn't ready to go "all hell will break loose". The mother then revealed to the father that she was listening to the call by saying "don't you dare send any threats".

[156] This interaction between the parents over the telephone in Daineil's presence quickly escalated and became unnecessarily dramatic.

[157] Then the mother telephoned the police.

[158] The police came to the mother's home as a result of the mother's report and spoke to Daineil. A referral was then made to the Children's Aid Society.

[159] Since then, the mother has arranged for counselling for Daineil. She took Daineil to three counselling sessions and then stopped. She says that she intends to take him back after the trial is over. As a general comment, I did not hear any evidence at the trial that the mother sought the father's consent before taking Daineil to counselling.

[160] The mother admitted in cross-examination that when the police came to her home, she was asked to clarify whether the father was in fact supposed to have Daineil in his care that weekend. The mother proceeded to show the police only the order of Pawagi J. dated April 5, 2017. That Order only dealt with the regular schedule on an interim basis pending trial. It did not modify the holiday schedule in the 2012 Final Order of Kerrigan-Brownridge J., which still applied respecting Christmas. Daineil was indeed supposed to be in his father's care.

[161] When confronted with this in cross-examination, the mother justified her decision not to show the right order, saying that the father hadn't abided by this Order since 2013 anyway. I find that she deliberately showed the police the wrong order. I also note that even though she claims the father hadn't abided by the 2012 order, at this trial, she says those holiday terms in the 2012 Order should continue.

[162] The mother has complained that the father refused to take Daineil to sports games or practices. The mother told the Court of a time that she had to switch the regular access weekends to ensure that Daineil would get there. This was imposed, not agreed to. Meanwhile, the father testified about a time that he tried to take one of the children to a game or practice, but according to him the mother had given him a false address.

[163] I am not fully clear whether these incidents relate in some way to the interim order that Pawagi J. made on September 27, 2017 or not, but on that September date, Pawagi J. ordered the father to take Daineil to his sports, provided that he had been given the address in writing. In my view, this is another example of the case management judge clearly trying to regulate these parents prior to the trial.

[164] It was clear that Daineil was well aware of this conflict between the parents, and getting to sports games and practices became an area of concern for him that he did raise in the counselling sessions.

[165] As I said earlier, the mother took Daineil to a few counselling sessions. She and Daineil attended counselling sessions at "Tangerine Walk-In-Counselling" on January 4, 2018, January 11, 2018 and February 8, 2018. Neither parent called either of the counsellors to testify, but the mother filed the notes from those sessions at this trial and they were entered into evidence on consent.

[166] Daineil was seen at Tangerine on January 4 and 11, 2018 by a counsellor named Rosemary Di Simine. The mother was also present for at least part of these two sessions. On February 8, 2018, Daineil did not want to meet with the counsellor, Meena Radhakrishnan, alone, and so he only participated part of the time. The mother met with this counsellor alone for part of the session.

[167] The notes revealed that on January 4, 2018, Daineil reported that he did not want to go to an upcoming access visit because he was worried that his father would not take him to a basketball tournament, and because of the recent conflict on this subject between the parents. The mother testified that the father could not be relied upon to do the sports transportation.

[168] However, by January 11, 2018, Daineil reported that his dad was "funny", a "good cook" and he said he was looking forward to seeing his dad. He said that his father sent him a text message that made him feel comfortable with an upcoming visit.

[169] At the conclusion of the January 11, 2018 note, the counsellor recommended that Daineil's mother should provide opportunities for Daineil to share positive experiences about his relationship with his father. She stated that if those recommendations are not followed through with, Daineil may not develop a healthy relationship with his father.

[170] I heard no evidence about how this recommendation was implemented, if at all.

[171] Again, Daineil was not expressive at the February 8, 2018 session. Daineil did identify that his older sister Dainqiue is the family member with whom he feels closest. Ms. Radhakrishnan was of the view that Daineil was caught in a loyalty bind between his parents though.

[172] Although he is not the subject of the current custody dispute, I also find the way the parents handled DJ's health and education to shed considerable light on their inability to act appropriately together when it comes to their children.

[173] As I have explained earlier in these reasons, the mother did not discuss DJ's high school and post-secondary education with the father. She did not involve him in the decision of DJ moving to the US or selecting the school. She did not call the father when DJ came home from Niagara. She did not involve the father when DJ was first taken to the hospital. She then had her friend telephone the father. Then, the father did not communicate with the mother before taking DJ off his medication. The mother then responded unilaterally and took steps to become DJ's "substitute decision maker".

[174] If the past is predictive of the future, then this is worrying for Daineil, particularly should serious health issues arise for him. It is also concerning for DJ frankly, whose health needs are an ongoing issue.

D. Daineil's Best Interests Respecting Custody

[175] Based on the evidence that I have summarized above, it is not in Daineil's best interests that his two parents continue to have joint custody of him.

[176] In short, the parents cannot communicate and make decisions effectively.

[177] I find that the Court must decide between the competing custody claims. I will therefore apply the criteria in section 24(2) to the evidence before the Court.

[178] With regards to section 24(2)(a) of the CLRA, I find this to be an equal factor. There is no question that both parents love Daineil and that he loves both of his parents. In any case, the Court will be making an access order and it is the Court's expectation that the parents follow it.

[179] Regarding sections 24(2)(b) and 64(1), I heard very little evidence about Daineil's views and preferences. The Office of the Children's Lawyer was not involved in this case. I was not asked to interview the child. There was no evidence as to Daineil's views and preferences about custody or about the schedule. The only objective evidence that I heard was through the counselling notes. What the notes reveal is that the conflict between the parents over Christmas 2017 impacted Daineil. He was also worried about getting to basketball, which is a topic that the parents have argued about.

[180] Nevertheless, very soon after the first counselling session, Daineil once again spoke positively about his father. By early January 2018, he was looking forward to seeing him. If their relationship was disrupted as a result of the Christmas incident, it did not last long. While I was not shown the text message that the father apparently sent to Daineil, the counselling notes make it clear that it had reassured Daineil.

[181] My analysis regarding sections 24(2)(c), (d), (e), (f) and (g) of the CLRA favour the mother. There is very little dispute that the mother was all of the children's primary parent after the separation. Incidentally, this has continued to be the case since the 2012 Order, at least until Dainique moved out, and then until DJ went to live with the father, and then when Dante moved out.

[182] Insofar as Daineil is concerned, he has only lived with the mother.

[183] The mother testified that the father showed very little interest in making health care decisions for any of the children historically. She also admitted that she didn't try to involve him, adding that he would only be involved "if he was around" but that he was around "at his own discretion".

[184] I do not accept that the father showed little interest in the children and find this statement is more reflective of the mother's anger towards the father and her perception of the past than reality. In any event, I accept that the mother not only made medical decisions for the children, but historically, she was more responsible for taking the children to day care, schools and programs, until they could do so on their own.

[185] I also accept that the mother has taken the lead in managing the children's extra-curricular activities. She was very clearly the parent who took responsibility for organizing DJ's education, and this continued right up until his health crises. Although she acted unilaterally, I find that she ultimately made the right call in intervening into the management of DJ's health by getting him back on his medication.

[186] In my view, given their inability to communicate, she is better suited at managing any of the issues concerning Daineil that might arise.

[187] Both parents' plans for Daineil's upbringing are lacking in certain respects, particularly as it pertains to how they each intend to ensure that Daineil has contact and a healthy relationship with the other parent.

[188] The mother's proposal about what should happen regarding communication between the parents going forward is very problematic. Again, she very clearly stated to the court that she will not communicate with him. In cross-examination, she testified that if there needs to be ad hoc changes to the access schedule in the future for example, then Daineil will have to inform the father himself. She said this, despite that in the recent past such an approach spiralled into an incident resulting in the mother telephoning the police and Daineil experiencing anxiety such that the mother took him to a few counselling sessions.

[189] When asked why this is her position, her response was that "it takes two" to have a joint custody order, and again the father has been "MIA".

[190] Her position demonstrates a lack of insight on her part.

[191] On the other hand, the father's statement that he is willing to try to work with the mother is a mere statement at this point and there is little concrete evidence of him having tried to work with the mother either. Frankly, the Court did not hear evidence of a sufficient effort by either parent.

[192] I considered whether the Court should continue the existing joint custody order, or make no order as to custody in accordance with M. v. F., 2015 ONCA 277. Not only did I consider that joint custody would continue by default if the completing custody claims were dismissed for lack of a material change in circumstances, but I also considered whether to continue joint custody or order no custody on the merits, after having found a material change in circumstances did occur.

[193] The Court is uncomfortable with the concept that a parent can refuse to comply with the governing parenting order and then use that as a basis to argue that it should be changed.

[194] The mother's attitude towards the father is very negative. She has a much more negative view of the father than he does of her. But while I find that she is inappropriately refusing to deal with the father even about minor issues, I would stop short of saying that she is actively undermining the relationship. Rather, I find she lacks insight into the harm her actions may cause to Daineil eventually. In my view, the mother could do more to promote Daineil's relationship with the father.

[195] Nevertheless, I would not continue the joint custody for the simple reason that the conflict has to stop. If joint custody is preserved, then it is more likely than not that Daineil will be exposed to more conflict because both parents lack the skills to deal with each other responsibly. And to be clear, the father is not blameless in the conflict.

[196] In the result, I find that it is in Daineil's best interests that the mother be awarded sole custody of him. Continued joint custody is a recipe for conflict, and so having had to choose one parent over the other, my analysis of the section 24(2) factors favours the mother. Custody in favour of the mother also makes sense given the access schedule that I find to be in Daineil's best interests has Daineil living with his mother primarily.

[197] The mother should not consider the custody order that I am making to be a victory. Nor does this order somehow relegate the father to a lesser status as a parent. Even though I have granted custody to the mother, I am not giving the mother carte blanche to make decisions about Daineil. She must consult with the father before making a decision and I intend to order terms regarding that.

[198] The father asked the Court to order the parents to go to counselling. The Court believes that he did so in tandem with his alternative request that the Court continue joint custody and the Court is not ordering joint custody. In the event that I am wrong and he wanted a counselling order irrespective of the outcome about custody, then I would not make this order anyway.

[199] I agree that counselling is a good idea in theory for this family. Even though there will no longer be joint custody, the mother needs to deal with her anger, the father needs to learn insight into his role in the conflict, and the parents need to learn some basic communication skills for their dealings with one another. There will have to be dealings with each other. They must start communicating about their child. It doesn't have to be abundant, but there should be some level of communication when it is necessary.

[200] I would encourage the parents to go to a counselling or program for parents post-separation, such as a program offered through Families in Transition. That said, I am not ordering the parents to attend counselling. Even if I had ordered joint custody, I would not have ordered the parents into counselling to improve their communication.

[201] There is a divide in the current state of the case law about courts' jurisdiction to order counselling. The father did not tender any of the law, or make proper submissions about this Court's jurisdiction to order counselling. In the absence of proper submissions about what is currently a controversial area of the law and how the law should be applied to this family, if there is in fact jurisdiction, the Court will not make such an order.

E. Application and Findings Regarding Access

[202] I will begin with the father's proposals regarding a schedule. I reject both of them. Neither of his proposed schedules are either realistic or reasonable.

[203] Again, Daineil has always lived with his mother. He goes to school in Brampton. Meanwhile, the father now lives in Aliston, Ontario.

[204] Whether under the father's primary or alternative positions, Daineil would have to commute for a long period of time between his father's house and school, three to four times per week and during the school week. This does not make sense.

[205] If the Court were to impose the alternative schedule sought by the father where Daineil is with his father every Saturday after basketball to Tuesday morning, this would essentially mean that the mother would never get to enjoy any weekend time with Daineil. It would require the mother to manage the logistics of basketball on Saturdays and then Daineil would go to his father's.

[206] Again, the alternating weekend schedule that the mother has proposed for Daineil makes more sense. Under the mother's plan, Daineil will commute to his father's only once after school on Fridays and once on Monday mornings, every other weekend. This is what is now happening under Pawagi J.'s interim order, and I did not hear any evidence of a problem with this schedule. While it still has Daineil commuting to get to school sometimes, I agree that exchanges at the school makes sense for this family as opposed to exchanges at other times at the parents homes. An infrequent number of commutes to school in a month must be balanced against the need to reduce the opportunities for the parents to engage in conflict in Daineil's presence.

[207] The parties agreed that the holiday schedule in the Order of Kerrigan-Brownridge J. dated October 25, 2012 would continue, so I will order that too unmodified.

F. The Allegations of Domestic Violence

[208] Each parent has alleged domestic violence by the other in this case. The Court is required to consider domestic violence pursuant to section 24(4) of the CLRA when assessing a person's ability to act as a parent. Therefore, I will deal with these allegations.

[209] The mother has accused the father of being violent towards her on at least two occasions. One of her allegations pre-dates the 2012 order. She says the second incident occurred in 2013 at which time the father was aggressive and put her in a headlock.

[210] The father denied that he was ever violent towards the mother. He said that he had "never hit her", "never once" and "not once". Furthermore, Dainique (who the mother said was present in the house (albeit upstairs) when the second incident occurred) was asked if she had ever seen her father hit her mother. She answered no. In submissions, the father argued that the mother never raised allegations of domestic violence until this trial.

[211] By contrast, the father says that it was the mother who assaulted him. He says she did this on at least three different occasions.

[212] The father's counsel cross-examined the mother about the second incident, including about why she did not telephone the police. The father did not say whether he telephoned the police when he says the mother assaulted him.

[213] The Court takes allegations of domestic violence very seriously. I draw no conclusions from either parent failing to telephone the police.

[214] I am troubled by the competing allegations of violence in this case. But I am unable to make a finding on a balance of probabilities either way that either parent was either the perpetrator or the victim of violence based on what I heard.

[215] In any case, again, what I have decided to do is make an order that minimizes the opportunity for these two parents to engage in confrontations with each other.

PART VII: LAW AND ANALYSIS REGARDING THE CHILD SUPPORT CLAIMS

A. Applicable Statutory Provisions

[216] Regarding child support, this is a variation proceeding governed by the Family Law Act, R.S.O. 1990, c. F.3 (the "FLA") and the Child Support Guidelines, O.Reg 391/97 (the "Guidelines").

[217] The relevant provisions of the FLA read:

Definitions

29 In this Part,

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

[218] The current version of section 31 of the FLA that sets out a parent's obligation to support his or her child has only been in force since December 14, 2017. The predecessor to section 31 was amended following a constitutional challenge to it in Coates v. Watson, 2017 ONCJ 454, in which Justice A.W.J. Sullivan ruled that the former version of section 31 violated the applicant's and the child's section 15 Charter rights.

[219] The current version of section 31 reads:

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.

Idem

31 (2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

[220] For children over 16, the previous version of section 31 based entitlement to child support on a child's enrollment in a full time program of education where that child had not withdrawn from parental control.

[221] Other applicable provisions of the FLA are:

Order for Support

33(1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.

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);

Powers of court: child support

37(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

37(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines.

[222] The Child Support Guidelines, O.Reg. 391/97, as amended also govern this case. The relevant sections are:

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.

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.

Child the age of majority or over

3(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,

(a) the amount determined by applying these guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

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:

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

Definition, "extraordinary expenses"

7(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

7(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.

7(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.

Split custody

8. Where each parent or spouse has custody of one or more children, the amount of an order for the support of a child is the difference between the amount that each parent or spouse would otherwise pay if such an order were sought against each of the parents or spouses.

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.

Agreement

(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;

(b) the parent or spouse is exempt from paying federal or provincial income tax;

(c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

(e) the parent's or spouse's property is not reasonably utilized to generate income;

(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;

(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

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).

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).

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.

E. Applicable Legal Principles Regarding the Threshold Required to Vary a Child Support Order and Regarding the Children's Entitlement to support

(1) Change in Circumstances

[223] In a variation proceeding such as this, section 37(2.1) of the FLA requires that there be a "change in circumstances within the meaning of the child support guidelines" before the Court may vary child support. As I have found that the 2012 Order was made in accordance with the applicable child support table at the time, section 14 (1.) of the Guidelines applies. The change in circumstances must be such that it would result in a different order for the support of a child or any provision thereof.

(2) Entitlement to Child Support

[224] Both parties seek to adjust child support retroactively, based on changes to Dainique's, DJ's and Dante's circumstances since the 2012 Order. It is common ground that there have been such changes to either their entitlement to child support, or to their residential arrangements, or both. But the parents disagree about the dates that the changes occurred, and in DJ's case, whether he remains a dependant at all. They also disagree about what the Court should order retroactively, depending on what changes the Court ultimately finds occurred.

[225] The party claiming continued child support for an adult child bears the onus to demonstrate the child's continued entitlement to support. See Whitton v. Whitton, (1989); see also Meyer v. Content, 2014 ONSC 6001 at ¶ 29.

[226] Regarding when child support terminated for Dainique and Dante, at ¶ 29-33 of Meyer v. Content, Chappel J. sets out the law respecting what is required for continued entitlement to child support based on an adult child's enrollment in a "full time program of education". As part its analysis, the case considers the extent of a child's actual attendance, and his or her qualitative performance as relevant factors to consider.

[227] I need not repeat that analysis here in full. In this case, there is no argument that either of the children enrolled in a post-secondary program but then did not devote sufficient effort to it. There are no questions about quantitative attendance or qualitative performance.

[228] Rather, in Dante's case, he did not attend school after high school at all. Regarding Dainique, the question that the Court must decide is whether she had withdrawn from parental control, despite her school enrollment.

[229] On that point, at ¶ 31 of Meyer v. Content, Chappel J. said:

A child will be found to be unable to withdraw from parental control if their overall circumstances are such that they remain financially and emotionally dependent on one or both of their parents (Martin v. Taylor, 2007 CarswellOnt 8863 (S.C.J.); Oates v. Oates, 2004 CarswellOnt 2878 (S.C.J)). The analysis of this issue must be undertaken from a broad and objective standpoint. The judge must scratch beneath the surface of outward appearances to determine whether the child is truly dependent on a parent, or whether their overall circumstances are such that they are independent or reasonably capable of being so.

[230] Regarding DJ, the question is somewhat more complicated. This is due in part to the recent amendments to section 31 of the FLA.

[231] As this Court said in M.P.A.N. v. J.N., 2018 ONCJ 769 at ¶ 51-64, section 31 of the FLA was amended in 2017 following a constitutional challenge to its predecessor. The amendments had the effect of broadening the entitlement to child support under provincial legislation by more or less incorporating the definition of "child of the marriage" from the Divorce Act, R.S.C 1985, c. 3 (2nd Supp.) (the "Divorce Act") into section 31 of the FLA.

[232] As a result of the constitutional challenge and the subsequent legislative amendments to section 31 of the FLA, section 31 now extends entitlement to support to adult children who are "unable by reason of illness, disability or other cause to withdraw from the charge" of his or her parents, regardless of enrollment in "a full time program of education".

[233] In this case, the Court is being asked to look back in time and determine whether child support for DJ terminated, and if so, when. It is not disputed that he has been out of school since about 2014. But the past periods of time in issue are times when the predecessor section 31 was in force. DJ's entitlement to support now is based on illness. Had the decision about child support for DJ been made at a point in time prior to December 14, 2017, the outcome might be different.

[234] But the claim is before the Court now. It is my view that the Court must apply the current version of section 31 that is in force to answer the question. I rely on the analysis in S.(R.) v. H.(R.), 2000 CarswellOnt 1994 (S.C.J.) and this Court's reasoning in M.P.A.N. v. J.N at ¶ 51-64 in so doing.

[235] Thus, the question before the Court is whether DJ was unable to withdraw from the charge of his parents on account of his illness or disability.

[236] At ¶ 7 of Carpenter v. March, [2012] N.J. No. 194 (Nfld. S.C.), there is a helpful summary of the case law, concerning when a disabled "child of the marriage" remains entitled to child support. Although this case was decided under the Divorce Act, I find that the comments to be applicable under the current version of section 31 of the FLA also given the legislative similarity between the relevant provisions of the two statutes.

[237] I reproduce ¶ 7 of Carpenter v. March verbatim:

7 Most of the cases that consider whether an adult child is a "child of the marriage" focus on participation in post-secondary education as the "other cause" which impairs a child's ability to withdraw from parental charge or to acquire "the necessaries of life". Cases dealing with the other "causes" of "illness and disability" are not plenteous but they demonstrate principles that will assist in analyzing this case. These are some of the relevant principles:

• A child over the provincial age of majority who is unable to work due to illness or disability may be a "child of the marriage" within the meaning of section 2(1) of the Divorce Act.

• The onus of proving that an adult child remains a "child of the marriage" is on the parent making the claim.

• State-subsidized financial assistance does not relieve parents of their child support obligations.

• Child support set under section 3(2)(b) of the Guidelines for an adult child who is still a "child of the marriage" because of illness or disability may take into account subsidies and other disability benefits the adult child or custodial parent receives from the province, such as subsidized housing and respite care.

• A disabled adult child may be entitled to child support if the child receives a monthly disability payment, even if the child stays in a foster home five nights a week.

• Proof of an adult child's disability alone does not justify a child support order if there is no indication that the disability prevents the child from being gainfully employed -- evidence of financial dependence is required.

• It may be premature to limit the duration of support for a disabled adult child at the time when the child support order is made.

• Parental responsibility to support a permanently disabled child may last for the rest of the child's life.

F. Analysis and Findings Respecting the Children's Entitlement to Child Support

(1) Dainique

[238] Based on the evidence that I summarized earlier in these reasons regarding the children's circumstances, I agree with the father that the mother was no longer entitled to child support for Dainique as of September 1, 2013. For the reasons that I explained above, I find that Dainique ceased living with her mother permanently at some point in August of 2013. Dainique stayed away because her mother would not let her return home unless she was prepared to contribute towards the costs of running the household. There is no evidence that the mother continued to support Dainique in any real way after she left, either financially or emotionally. As such, I find that Dainique withdrew from her mother's charge as of September 1, 2013.

[239] Although I have found that the mother was no longer entitled to support for Dainique as of September 1, 2013, Dainique continued to be enrolled in a program of post-secondary education after that date. There was no claim for, nor did I hear arguments that support should be paid to someone else for Dainique, or to Dainique herself after September 1, 2013.

[240] So while I have terminated child support to the mother for Dainique, the Court makes no other comments about her status as a person who might have been entitled to child support after September 1, 2013.

(2) DJ

[241] I find that the position the mother now takes about child support for DJ is inconsistent with the position that she took in the past.

[242] DJ was out of school by some point in 2014, after which his health started to seriously deteriorate. I note that the mother claims child support for DJ right up until January of 2015, which includes time that he wasn't in a full time program of education.

[243] But then, when he went to live with his father as of February 2015, the mother wants child support for DJ to terminate. While she acknowledges she is not entitled to collect child support for him as of that date, she does not acknowledge any obligation to support DJ after February 1, 2015 when he was in the father's home.

[244] The Court is not prepared to terminate support for DJ as of February 1, 2015. I find that DJ remains entitled to support after February 1, 2015.

[245] I will first deal with the lack of medical evidence about DJ.

[246] Neither parent tendered any evidence concerning DJ's diagnosis or prognosis. I acknowledge that on April 12 and September 26, 2017 Pawagi J. ordered that the father obtain a medical report and that was not done. In my view either parent ought to have obtained medical evidence as both were claiming support at different points in time.

[247] I acknowledge that court orders to be followed. But that said, it was not disputed at the trial that DJ was diagnosed with schizophrenia in 2015. It is common ground that his condition deteriorated quite significantly in 2015 to the point that he was hospitalized for four months. And the management of his health continued to be a serious problem into 2017. It is also common ground that he has not worked and that he is still not working.

[248] It is the mother's evidence that as of 2017, DJ was sufficiently unstable and she was so concerned about the father having taken DJ off his medication around that time that she acted to rectify the situation. As part of the team providing care for DJ, Mr. Connell also disapproved of the father's course of action in this respect.

[249] I accept that the mother was upset about the state of DJ's health and she was furious when she discovered what the father had done in 2017. But I am not prepared to find that the father deliberately took his son off medication to create a child support claim as the mother maintained at this trial.

[250] Although DJ has been put back on his medication since the late spring of 2017, I heard very little concrete evidence that DJ is able to support himself right now. Mr. Connell said that he could, but the only actual evidence I heard is that he went to a job placement and things didn't work out. I heard no evidence of a successful stint at working, nor did I hear any evidence about how much DJ can realistically earn.

[251] Having considered the evidence before the Court, I have decided that the Court does not need medical evidence as to DJ's dependency, at least at this point.

[252] I find that DJ remains a dependant entitled to support and this has been the case continuously since February 1, 2015.

[253] The Court has concerns about DJ's ability to prepare for the work force, to prepare a resume, to interview and to get a job. He needs time to acquire these skills. The most obvious fact before the Court about his inability to be self-supporting at this time is the simple fact that DJ is not currently working. Again, the mother herself admitted that he has more work to do.

[254] In my view, DJ's pathway to self-sufficiency is not complete. Since close to the beginning of his health crises, he has lived with his father.

[255] I find that the father's obligation to pay child support to the mother ended as of January 31, 2015. As of February 1, 2015, the father became entitled to child support from the mother for DJ. I make this comment subject to my further comments about the fact that this is a retroactive claim. That will be addressed later in these reasons.

[256] At this point, the Court does not know for how long child support for DJ should continue. During the trial I learned that DJ is not in receipt of ODSP nor has he applied for it. I heard very little about why that is, apart from a comment from counsel in closing submissions that he does not want to apply for it.

[257] If entering the work force ends up problematic for DJ, he may need to reconsider ODSP. And if DJ ends up being entitled to ODSP, it may (or it may not) make the table inappropriate. See Senos v. Karcz, 2014 ONCA 459. If he fails to apply and he should have, then this too may become an issue. But none of this was explored by either counsel at the trial. Instead the parties focused on whether he was still a dependant or not.

[258] This may have to be explored in due course if either party seeks to return to court about DJ's entitlement in a future Motion to Change.

[259] Finally, also based on the record before me at this time, I would order prospective table support for DJ. There is nothing before me to suggest that the table amount of support is inappropriate pursuant to section 3(2)(b) of the Guidelines. And I did not hear any such arguments. Incidentally, I did not hear any arguments that the table became inappropriate for DJ at any time after the 2012 order either.

(3) Dante

[260] I find that Dante's entitlement to child support ceased as of July 1, 2016. The parties agreed to this date but I find this termination date is also supported by the evidence.

[261] As I said earlier in these reasons, Dante graduated high school in June 2016 and soon thereafter began a contract with the Toronto Football Club. Despite the mother's testimony that post-secondary education may be on the horizon for Dante in the future, I did not hear any evidence of a realistic plan for this at the trial. To the contrary, the mother said he was fully committed to pursuing a career in soccer.

[262] Despite his mother's statement that he still lives at home, Dante does not in fact live at home. He is housed by the Toronto Football Club, earns an income and receives other benefits. I find that he has withdrawn from the charge of his parents.

(4) Daineil

[263] I find that the mother remains entitled to child support for Daineil. Daineil remains a dependant.

G. The Determination of the Mother's Income and Her Financial Circumstances

[264] I have found that there have been changes in the children's circumstances. As there are claims by each parent for child support from the other, retroactive claims and claims for section 7 expenses, the Court must determine both parents' incomes. Their financial circumstances are relevant too.

[265] 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.

[266] I begin with the mother's income, which is more straight-forward. I will also make findings of fact concerning her financial circumstances.

[267] As I set out above, the mother is currently employed by the Ontario Lottery and Gaming Corporation. According to her year-end pay stub for 2017, the mother earned gross pay of $39,597.49 in 2017. She did not file her full tax return. Her year-end pay stub for 2017 is the most current income information for the mother for a full year. While she filed a pay stub from early 2018, it did not show income for an entire calendar year yet as 2018 was not yet complete.

[268] The mother's Line 150 Income between 2013 and 2016 was:

Year	Line 150 Income
2013	$31,701
2014	$35,698
2015	$40,512
2016	$34,386

[269] The mother does not own any significant assets apart from a 2013 Hyundai Santa Fe that she says is worth $13,000. According to her financial statement sworn April 26, 2018, the mother has a car loan of $14,000. Thus, the car has a negative value.

[270] Both the mother and her two friends testified about the financial hardship that she has experienced while caring for the children primarily. I accept the mother's evidence that she has struggled financially and that it has been difficult to support the children. This has been exacerbated by the fact that the father didn't pay child support on time.

[271] I head some evidence about the mother having been fired from a previous job she had at an auto dealership. She authored at least one false letter on her employer's letter head saying that the father earned fictitious income there. The father did not work there. She said she did this to help him get some bank financing. She got caught and was fired.

[272] Both parents blamed the other for the mother's firing. There was a dispute about whether the mother authored only one letter, or if she also wrote a second one. The mother denied writing the second letter.

[273] Frankly this reflects very poorly on both of them. It shows they were both prepared to, and did in fact act in a dishonest manner. They were both complicit and I would not find one more responsible than the other. The mother bore the brunt of the financial consequences of the letter writing by losing her job but again she bears some responsibility for this.

[274] However and importantly, this letter writing and job loss happened before the 2012 order. It was not relevant to the issues before the Court, except that both parents' willingness to be dishonest in the past sheds light on their credibility.

H. Applicable Legal Principles Concerning the Determination of the Father's Income and the Mother's Arguments About His Disclosure and About Whether He Is Under-Employed

[275] The determination of the father's income is more complicated for two reasons.

[276] First, income was imputed to him in the 2012 Order that each parent now seeks to vary. The father wants the Court to reduce his child support obligation retroactively and prospectively based on lower Line 150 Income. Alternatively, he says the level of income imputed to him in 2012 should continue. The mother wants more income imputed to him.

[277] As I said earlier, the applicable legal test, whether the Court finds that father's income should be lowered, increased or stay the same, is more nuanced as income was imputed to the father in the first place in 2012.

[278] Second, regarding the mother's position that more income should be imputed to the father, the mother has advanced a number of legal bases upon which she says the Court should rely to do this. The Court will deal with each of her various arguments.

[279] I begin with the father's request that the Court determine his income at a lower amount than the amount imputed to him in 2012, his alternative argument that the Court should continue the level of income imputed to him in 2012, and two of the mother's arguments, namely that he is under-employed and that he failed to provide sufficient disclosure. I will address these several arguments together.

[280] As this case concerns a request to vary a child support order that imputed income to a payor, the test in Trang v. Trang, 2013 ONSC 1980 applies. At ¶ 42-60 of Trang v. Trang, Justice Pazaratz held that 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.

[281] If the support order was based on declared income, then changes in declared income in subsequent years are more persuasive.

[282] 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?; and

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

[283] Regarding the mother's allegation that the father is under-employed (and hence the amount of imputed income in the 2012 order was not enough), section 19(1)(a) does authorize the Court to impute more income in appropriate circumstances. The leading case on this point is Drygala v. Pauli. 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.

[284] 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 8 general principles, which are applicable in this case:

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

(b) 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;

(c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent;

(d) 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;

(e) The determination to impute income is discretionary, as the court considers appropriate in the circumstances;

(f) 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;

(g) 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; and

(h) 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.

[285] Several of these principles were re-stated in Frank v. Linn, 2014 SKCA 87 at ¶ 96.

[286] And 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), 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; and

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

[287] And finally, regarding the mother's additional argument that the father failed to provide full disclosure and that income ought to be imputed to him pursuant to section 19(1)(f) of the Guidelines, it is a basic principle in family law that full disclosure is important. And a self-employed payor has a positive onus to provide information about his or her income in a 'user-friendly' and understandable way.

[288] 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 for a self-employed payor to discharge his or her onus to prove income.

[289] 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.

I. Analysis Respecting the Father's Income and the Disclosure He Provided

[290] As I found above, the 2012 Order was based on imputed income of $24,000 to the father. This was a compromise between the parties.

[291] The Court does not find it to be appropriate to reduce the father's income below this level in any year after 2012 and vary the child support order retroactively based on decreased income accordingly.

[292] There are no new facts that would warrant this approach.

[293] Nor does the Court find it appropriate to impute more income to the father based on the mother's arguments.

[294] There have not been any changes in circumstances respecting the father's income since the 2012 Order.

[295] I will explain.

(1) The Father's Education

[296] The father does not have the education that might be required for him to earn more money. The father does not even have a high school education. At some point in the past (before Kerrigan-Brownridge J.'s 2012 Order), he enrolled in a music program at the Trebas Institute, but he did not complete the program.

[297] I do not wish to be taken to say that persons without a high school or post-secondary education cannot earn more than the father is currently earning. But in this case, there are no changes to the level of the father's education since the last Order that would make a finding of increased income more appropriate now.

(2) The Father's Employment History

[298] My view is similar when I look at the father's work history. The father's work history has involved low paying or part-time jobs. It is my view that he currently lacks the employment skills and experience to earn more than the level imputed to him.

[299] The father testified that his first job was at McDonald's Restaurant, when he was still in school. He then worked at Harvey's, and then at a restaurant called "Licks".

[300] At some point in the past (before Kerrigan-Brownridge J.'s 2012 Order), the father tried running a DJ service called "King Clepto", playing music at night clubs, barbeques and birthday parties. He leased a small store front space out of which he operated this DJ business. He testified that he might have earned about $150 per night at a night club as a DJ, and if he was lucky, he would get work both nights on a weekend, but this was not always the case. He stopped running the DJ service in around 2009, three years before the 2012. Finally, the father testified that he also did some freelance studio engineer work of a technical nature in the music production field, but this too was years ago.

[301] The father is no longer working in restaurants, running a DJ service or working in music at all. I heard no evidence from either side that since the 2012 Order of Kerrigan-Brownridge J. he is once again working in these areas or earning any income as a result. The DJ business still exists, but the father testified in cross-examination that his brother is now running it. I accept his say-so in this regard.

[302] The father testified that since the 2012 Order, to make ends meet, he started delivering newspapers. He did this in 2014 and 2015. He testified that a cousin told him about how she was earning money doing this and connected him with her employer. He then got a route.

[303] He testified that he worked between 2:00 am and 6:00 am delivering newspapers, 7 days per week. The most he said he remembered earning in a 2 week period was $1,007.

[304] In about February or March 2015, the father learned that his driver's license had been suspended as a result of the non-payment of support. He had to stop delivering newspapers on account of the loss of his license. While this would have disabled the father from earning income from delivering papers, the Court is not prepared to accept that the inability to drive in itself as a result of the failure to pay support should justify the reduction of income and consequently the reduction of support. But in any case, he did not earn more than $24,000 delivering newspapers. And the father testified that he got his driver's license back at some point in late 2016 after one of the court appearances.

[305] In cross-examination when questioned about whether he earned income from any other sources in 2014 or 2015, the father said, "I pawned, I sold, I borrowed, I begged. Any money I had during that time is where it came from". He said he sold studio equipment, a watch, and his car. He said, "anything that I had which was of any value" he would pawn. None of this was quantified but I did not have the impression that this was more than $24,000. Anyway selling possessions at a pawn shop is not income.

(3) The Father's Current Employment

[306] The father is now working as a truck driver for a company called "TrinCan Global Logistic Inc". He started to do this in mid-2017. A statement of his earnings reveals income from TrinCan as of August 2017.

[307] The father explained that TrinCan is a tire distribution company. He said he delivers tires to different mechanic shops, car dealers and to Canadian Tire. He explained that he picks up tires from the warehouse in Mississauga and delivers them across Southern Ontario.

[308] The father said he is paid between $190 and $230 per day for each day that he drives, but he is responsible for transportation expenses like gas, insurance and maintenance. TrinCan does not supply him with a truck. So he uses a truck (specifically a Ford E250 Cargo Van) that he has been able to borrow from his cousin, free of charge. Although he does not pay his cousin for his use of the vehicle, he has agreed to pay for the expenses associated with use of the car, specifically gas, insurance and van maintenance. This included replacing tires on the vehicle recently.

[309] He is not reimbursed for these expenses from TrinCan. Any such costs related to the tire delivery work he does are therefore self-employment expenses.

[310] He is not reimbursed for these expenses from TrinCan. Any such costs related to the tire delivery work he does are therefore self-employment expenses.

[311] The father does not deliver tires each day. The number of days he drives for TrinCan each week is dependent on the company's needs.

[312] The father said in cross-examination that he has tried to find a better job. He said that he has submitted applications (none were tendered at this trial), but has not had any success at finding a job.

(4) The Father's Rental Income

[313] From prior to 2012, until 2016 when it was sold, the father owned a condominium in Toronto. As I will explain, he purchased it in 1999 with an early inheritance from his aunt. The father used to earn rental income from this property.

[314] Initially at this trial, the father only tendered portions of his tax returns for 2013 to 2016. He did not tender a tax return for 2017 at all. I did not initially know what income he reported to CRA from rentals or otherwise at the time the parties agreed to the 2012 Order.

[315] For reasons that I will also explain later, I directed the father to obtain his tax returns commencing in 2009, and I adjourned the trial from July 10, 2018 to September 14, 2018 to permit him to obtain these documents.

[316] On September 14, 2018 the father came to Court with his Income Tax Return Information – Regulars for 2009 to 2016, but pages were missing (I will explain what happened here too). Nevertheless, what he filed was sufficient for the Court to determine his income for the years after the 2012 order.

[317] The father reported no income at all between 2009 and 2011 and he did not file a tax return for 2012.

[318] He did tender returns between 2013 and 2016.

[319] The tax returns do not contain all relevant information about the father's income.

[320] The father submitted a number of requests to the CRA on his accountant's advice asking the CRA to adjust his tax returns going back to 2009, in order to account for certain property transactions in which he engaged. However, like regarding his tax returns, initially he only tendered the T1 adjustments for 2014 to 2016, even though the adjustments going back to 2009 were needed in order to consider the other imputation arguments in this case.

[321] In part as a result of the mid-trial disclosure order that I made, by the end of the trial, the father tendered all of the T1 adjustment requests he filed between 2009 and 2016. However, the CRA had not processed the T1 adjustments by the conclusion of the trial. I was told that these are still in progress.

[322] The documents that the father tendered did not break down for the Court what rental expenses he deducted from income. The Court was shown only his gross and net rental income.

[323] Nevertheless, in the end, I was able to determine the father's income by piecing together information from several different documents.

(5) The Father's Disclosure

[324] The portions of father's tax returns and Income Tax Information Regulars from 2013 to 2016 that he produced, as currently processed by the CRA, reveal the following about the father's income after 2012:

Year	Description of Income	Line 150 Income
2013	No Income Reported. $1.00 of income was assessed by the CRA. The father did not report any rental income.	$1.00
2014	The portion of the tax return that I do have (he supplied the 4 page jacket only) reveals income of $11,000 for newspaper delivery. It does not mention any rental income. The Income Tax Return Information – Regular, reveals gross rental income of $12,900, which he then reduced to a net rental loss of ($9,246) by deducting rental expenses. But the rental expenses are not detailed in his productions. This has the effect of reducing the father's income from newspaper delivery. The father did not supply the statement of the rental income, less expenses, that he earns.	$1,754
2015	The portion of the tax return that I do have (he supplied the 4 page jacket only) reveals income of $6,853.85 for newspaper delivery. It does not mention any rental income. The Income Tax Return Information – Regular, reveals gross rental income of $18,900, which he then reduced to a net rental loss of ($7,877) by deducting rental expenses. But the rental expenses are not detailed in his productions. This has the effect of reducing the father's income from newspaper delivery. In this year, the father reported negative income to the CRA. The father did not supply the statement of the rental income, less expenses, that he earns.	($1,024)
2016	For this year, the father supplied the four page jacket, his statement of business activities and various schedules. The tax return reveals gross business income of $23,130. After expenses the father had net income of $8,131.04. There was very little cross-examination, with reference to this statement of business activities, about the income source or the expenses he deducted. The Income Tax Return Information – Regular, reveals gross rental income of $6,300, which he then reduced to a net rental loss of ($116) by deducting rental expenses. But the rental expenses are not detailed in his productions. He did not supply the statement of the rental income, less expenses, that he earns.	$8,015

[325] The father's statement of income from TrinCan for 2017 reveals that he earned gross income of $14,201.25 between August 2017 and the end of the year. As I was not given a tax return for 2017, I had very little evidence of what the precise amount of each of the expenses he deducted from his truck driving income were (other than the father's oral explanation about categories of expenses), nor was I given any documentary evidence about the father's rental income and expenses in 2017 at all.

[326] The father did tender several invoices that he submitted to TrinCan for pay for his truck driving, but these covered only up to the month before the commencement of the trial in 2018 (ie. up to April 2018). The receipts were neither added up, nor netted out to account for the expenses the father incurred.

[327] I was not given any information about the father's rental income or expenses in 2018 either.

(6) Analysis Respecting the Missing Disclosure

[328] I am mindful that the Court may draw adverse inferences against the father from the failure to disclose. But I do not know the extent to which back up documentation and receipts, or more evidence about the rental income was sought prior to trial. Each counsel made statements that various documents had not been produced.

[329] In the end, while the parties could have spent more time at the trial focusing on the father's earned income from truck driving and rent, less expenses so that the Court could undertake a more detailed income analysis, it does not appear that this would have been a fruitful exercise.

[330] Even if I were to add back all of the expenses that he deducted from either his business income or his rental income in the years that I had this breakdown, his adjusted income would still have fallen short of the $24,000 that was imputed to him on consent in the 2012 Order at least in the calendar years 2013 and 2014. For 2015, the adjusted income would have exceed the $24,000 imputed amount by only $1,753.85 and in 2016 by only $5,430.

[331] And I am not prepared to simply say that all expenses should be disallowed and added back just because better detail was not tendered by the father at this trial (or perhaps even if it wasn't produced to the mother at all). First, the mother did not cross-examine much on the specifics. And as a matter of common sense, the father had to have incurred expenses in relation to earning self-employment and rental income. To be clear, I accept the father's evidence that he is responsible for the transportation expenses regarding his truck driving. While I didn't have the breakdown put before me, this still means that his gross business income is not his income for child support. This applies for the rental income too.

[332] While there may very well have been some add backs had either party examined or cross-examined more on these points and then provided the Court with some analysis, and perhaps even a tax gross up on any expenses added back, I heard no submissions from counsel on these points, nor did I receive any calculations.

[333] I have highlighted above where the father's disclosure was deficient but it is my view that there is still a sufficient evidentiary basis before the Court to arrive at a fair and just income determination for the father.

[334] The only other document that the mother pointed to in closing submissions that the father had not produced was a single mortgage application that he had been ordered to provide previously by Pawagi J. on December 21, 2016. This Order ought to have been complied with. But insofar as it impacts the analysis, given the findings I have made, even if the father had reported higher income to a lender on a mortgage application, the evidence at trial did not expose either higher income or the ability to earn more income.

(7) The Mother's Non-Compliance With the Court's Orders

[335] For completeness, it was not just the father who had not complied with the Court's prior disclosure orders. During her cross-examination of the mother, the father's counsel exposed some non-disclosure on the part of the mother too. In particular, the mother failed to produce certain school transcripts and the names and dates of attendances at educational institutions that were relevant to determining entitlement to child support.

[336] And finally, the parties did not exchange disclosure annually between the 2012 Order and the commencement of this Motion to Change. They were both ordered to do so in the 2012 Order.

(8) Summary Respecting the Father's Income Since 2012

[337] In the result, I am dismissing the father's request to set his income at a lower level than what was imputed to him in the 2012 Order. I would not impute any additional income to the father either based on under-employment or non-disclosure as the mother argued.

[338] The father has not satisfied the Court as to the test in Trang v. Trang that there should be a reduction to the income imputed to him.

[339] I further note again that the before she agreed to the 2012 Order, the mother wanted to impute an income of $150,000 to the father. Then she abandoned that and the parties settled on the terms of the 2012 Order. Based on the evidence I heard, $150,000 in 2012 was not then a realistic position, nor is it now. Yet in this trial, the mother once again wants significantly more income imputed to the father.

[340] I reject the mother's alternative argument (alternative to the argument that income should be imputed to him based on property which I turn to next) that the father could earn between $50,000 to $60,000 if he worked more. As I will explain in the next section of these reasons, I accept that the father has devoted considerable time and effort to trying to build a home that he would then sell. He spent 7 years doing this. The father has not met his onus to satisfy the Court that the property venture he engaged in was reasonable. And he provided insufficient evidence of his attempts to find more permanent or better paying work in the mean time. I agree with the mother, particularly with the benefit of hindsight given the lack of results from his years' long efforts, that he could have devoted more time to working more.

[341] But even if the father had worked more, I do not accept that he would have earned between $50,000 to $60,000 per year, or anywhere near that level. There is no evidentiary basis to support a finding of this nature. As I have already explained, the father lacks both the education and employment skills and experience to earn this level of income. He has never earned this income from employment.

[342] And regarding the arguments about the lack of disclosure, in the result, and notwithstanding my criticism of the deficiencies in the father's documentary evidence at this trial, the areas of the father's non-disclosure did not impair the Court's ability to decide the trial. (Nor did the mother's). The Court declines to draw any adverse inferences on account of non-disclosure.

J. Applicable Legal Principles Regarding the Other Arguments that Income Ought to Be Imputed to the father

[343] I turn next to the mother's arguments that income should be imputed to the father from the sale of the property that he tried to develop. Section 19(1)(h) of the Guidelines does permit the Court to impute an income to the father if he derives a "significant portion of income" from capital gains "or other sources". Likewise, section 19(1)(e) would permit the Court to impute investment income to the payor that could be earned from capital.

[344] However, as the father did not earn any capital gains from the sale of property, I need not deal with the law regarding whether it would be appropriate to impute an income to him on this basis any further. And whether investment income should be imputed to the father was not argued. Rather the mother argued that the Court should average some alleged profit and various loans the father received over a number of years. I deal with this next.

K. Analysis and Findings Regarding the Mother's Other Imputation Arguments

[345] Although it was the mother who asked the Court to impute an income to the father and she had the onus to establish an evidentiary basis for this, at trial she testified that she knew very little about the father's financial circumstances. She said she knew that he owned four properties, but she didn't know how he maintained the mortgages. The mother wasn't able to testify much about the father's lifestyle. She would not admit to knowing that he does not own a car. She would not say whether he finished high school or not (she said she didn't know), nor would she agree that he only went to music college for two weeks. At one point she said she didn't even believe that he is a truck driver. She later admitted in her testimony to knowing that he drives a truck.

[346] Although some of the father's disclosure was deficient as I have explained, it cannot be said that the father did not provide disclosure to the mother for her to know about his circumstances. While I have highlighted the deficiencies in the disclosure earlier, there was still a considerable amount of disclosure entered into evidence at the trial. The Court also heard the viva voce evidence of the father, his accountant, his real estate lawyer, his mortgage broker and several persons who had loaned him money, all of whom the mother had the opportunity to cross-examine.

[347] I accept that the mother may not have been fully aware of the minute details of the property transactions, and I accept that she may have even been unaware of all of the details after she obtained the disclosure, but I have difficulty accepting that the mother knew as little as she said about the father's affairs at the trial.

[348] The mother's statements that she lacked knowledge conflicted with the detail she set out her trial affidavit sworn March 30, 2018. But her trial affidavit highlighted select details though, often without the full context.

[349] In that trial affidavit, she referred to the father as a "self-employed" contractor. She said he earns income by purchasing "vacant real-estate property and building custom-built residential homes that are then sold for profit". This statement in particular is not accurate. The father built only one such home, and as I will explain, he was unable to finish it after trying to for 7 years.

[350] The mother's affidavit selectively refers to different numbers from the father's disclosure. I do not intend to set out each of her statements. However, one thing she did do is highlight the fact that he deposited "hundreds of thousands of dollars" into bank accounts, without referencing the corresponding construction loans that he obtained as possibly explaining the source of these deposits. At the trial, neither party walked the Court through any of the deposits in any detail nor provided any analysis based on deposits into a bank account at the end of the trial.

[351] The mother said in her affidavit that the father's Line 150 income in 2016 was over $1.8 million. This is inaccurate. He filed a T1 Adjustment Request to claim the proceeds of sale of two properties as gross income in 2016, but there are land purchase, development and construction expenses that he incurred over a number of years that have to be deducted from that income. The CRA has not processed the adjustment requests, but when it does and if it accepts it, the father will not have earned income in the year of sale from the property transactions.

[352] The mother's position is that the Court should treat certain loans that the father received after 2014 as gifts and therefore income. She says the loans from 2014 onward total $132,896. She also asks that the Court add to that "profit" she says the father received of $210,000 on the sale of the property he tried to develop.

[353] As this money was received in four years between 2014 and 2018, this averages at $85,000 per year. In her closing submissions, the mother submits that $75,000 is conservative and should be imputed to him. This number should also apply going forward.

[354] I would not follow this approach. I say this for the following reasons.

(1) The Queens Quay Condominium

[355] The father's first property was a condominium that he purchased at 550 Queens Quay, Unit 1019 in Toronto (the "Queens Quay Condominium"). He bought this property in about 1999 and he still owns it today. The father testified that years ago, he obtained what was essentially an early inheritance from one of his aunts. He explained that the amount he received was $350,000, and he decided to buy the Queens Quay Condominium as an investment property. He said he put $150,000 of the $350,000 he received from his aunt into the property.

[356] The Queens Quay Condominium was sold in 2016 for $466,000.00. The father testified that at times he lived in the Queens Quay condominium over the years, but he has also rented it off and on too. As I explained above, I was not given detailed evidence of all of its rental income or expenses, but I was told by the father that it carried itself. This is not true. In the years that I reviewed, it operated at a loss. But as set out above, the Court did not allow this to reduce the father's income in any particular year.

[357] This property was not the father's principal residence and therefore was subject to tax on its sale. The father did not initially report its sale in 2016. On his accountant's advice, on the T1 adjustment for 2016 he included the sale in a request to adjust his 2016 tax return. He did not report it as a capital gain; rather he reported the sale price as gross business income and then he deducted the cost base of $360,000.00 as an expense at that time.

[358] The property seemed to have increased in value by $106,000 by 2016. However as I will explain, the father's combined property transactions overall resulted in negative income in 2016. And there were three encumbrances on the Queens Quay property and other costs that had to be paid on the sale. There were no net proceeds left over on the sale of this property to pay out to the father.

(2) The Cobblestone Court House

[359] The father also used some of the money that he received from his aunt to purchase a property at 33 Cobblestone Court in Brampton. The father explained that his purchase of this house closed in 2000 or 2001. I heard confusing evidence about whether this property was supposed to be a family home or an investment, and about the extent to which the father lived in the home at different times. The evidence seemed to be that that the family more or less ended up living in it for a number of years prior to the 2012 Order, but precisely when is unclear to me. Regardless, this is absolutely of no moment to the financial issues now before the Court.

[360] The father later sold the Cobblestone Court Property to the mother, also prior to the 2012 Order. Although also irrelevant, the parties disagreed about whether the mother paid a down payment at the time of the transfer to her, or whether the father gave her the money for the down payment.

[361] It is not disputed that the mother did borrow money from a bank to buy out the father's interest. In his trial affidavit sworn May 7, 2018, the father testified that he essentially gave the mother the house for free, but then at trial he corrected this evidence and said he received about $180,000 from the mother as consideration for the transfer, after various debts were paid off.

[362] The mother was later unable to afford to keep the house. In part, she blamed the father for this, accusing him of having depleted the equity when he transferred it to her.

[363] Most of the evidence about the Cobblestone Property did not assist the Court to decide any of the issues before the Court. The only relevant piece of information is that he used funds from his early inheritance to buy it, he was repaid money from the mother when he transferred it to her, and he used some of those funds (not income) to invest into the next property.

(3) The Winston Churchill Property

[364] Next, also prior to the 2012 Order, the father purchased a property at 12189 Winston Churchill, Caledon Ontario (the "Winston Churchill Property"). The father testified that this property was nothing more than a vacant lot when he first bought it but his plan was to build a house on it. He said the purchase price for the land was $265,000.

[365] The father said he used the money he obtained from the mother on her buyout of the Cobblestone Court Property from him, and that he further mortgaged the Queens Quay Condominium to buy this property and start his project. He said started construction in 2010, but it took him a number of years to complete the project.

[366] The father testified that he did not have sufficient funds to complete the construction. He did not understand the workings of a construction mortgage. He could not get draws on the construction mortgage until a certain percentage of the project was first completed. But by the time he obtained architectural drawings, applied for permits, obtained various approvals and built a culvert, he had run out of money.

[367] The father testified about a number of construction delays. He explained that he tried to do some of the work himself to save money. He eventually gave up and sold the house in an unfinished state in 2016.

[368] I accept the father's evidence that he was cooking on a hot pot and that there were no appliances. He testified about how he had to drill three times before he found potable water for the house. Even then, he needed to buy a $7,000 water treatment system. For a period of time until he was able to buy that water system, the water was unsafe to drink. The father said he showered at a local gym.

[369] On a high level, the father explained the process he went through to finance the construction. He talked about the various construction loans he obtained, first from Scotiabank, then from Royal Bank, plus from private sources, from friends and family and even from his real estate lawyer and another lender that the real estate lawyer arranged.

[370] The father's real estate lawyer, Sheldon Skryzlo, testified at the trial. The father tendered Mr. Skryzlo's client ledger as an exhibit. It depicts the real estate activity/borrowing in which the father engaged for which Mr. Skryzlo represented the father. Neither party spent much time walking the court through this ledger.

[371] Mr. Skryzlo confirmed that his client ledger is accurate and that entries were inputted contemporaneously into his accounting software. He also confirmed that he had loaned the father money, and that he arranged a private mortgage for the father. Regarding the loan that he advanced to the father, he hasn't been repaid in full yet, but he expects to be. He testified that he is still owed between $14,000 and $16,000, plus accrued interest.

[372] The father tendered 7 affidavits from other individuals who loaned him money. The parties agreed that these affidavits would be admitted into evidence at the trial, with only some of the affiants required in court for cross-examination.

[373] The affidavits, plus the viva voce evidence of Phillip Sean Brown (who did not prepare an affidavit), on my count revealed that the father borrowed $178,600 (this includes the $132,896 stated above that the mother calculated but also money borrowed prior to 2014) from friends and family. The father has only paid back $12,500.00.

[374] Each of the witnesses testified that they still expect to be repaid. None said that they had gifted the father money.

[375] The father also called a mortgage broker named Rena Malkah to testify. Ms. Malkah has been a broker since 1974. She advised that she arranged financing at least twice to assist the father, the most recent time in order to help him acquire the property that he now owns (discussed below). She explained that when an applicant, like the father, does not have sufficient income to service the debt, she will sometimes arrange a loan from which the interest is deducted in advance off the top from the principal of the loan. She did that for one of the father's loans.

[376] In other words, the father essentially pre-paid the interest from the principal debt borrowed by taking less in reality but then owing more at the end of the day.

[377] In his testimony, the father did not provide complete particulars about how he serviced the institutional loans that he obtained. In most instances he did not make payments to, or repay the individuals who loaned him funds. However, having heard about the father's financial circumstances extensively, I am satisfied that he did not have other income sources, apart from those I have described above, which would have enabled him to service the debt.

[378] Mr. Skryzlo's client ledger confirms that in some cases the father used borrowed money to service other debts. And there is evidence in the various affidavits that I have referred to above from those who loaned the father funds that certain of them understood they were advancing funds to help the father pay his existing debts.

[379] In my view, the father largely serviced the debt he owed with other debt that he borrowed.

[380] At the end of the day, both the Queens Quay Condominium and the Winston Churchill Property were sold in 2016. The Queens Quay Condominium was sold pursuant to a power of sale. Again, the father did not receive any sale proceeds from the sale of Queens Quay. As I will explain, the overall impact on the sale of both properties was that the father had an overall capital loss.

(4) How This Was Accounted For

[381] This is one area where the trial exhibits that the father initially tendered were deficient. As I explained earlier, as part of his trial brief, the father initially tendered only portions of his tax returns commencing in 2013, plus the T1 adjustment requests for 2014 through 2016. He did not tender a corresponding Notice of Assessment showing that the adjustments had been processed (I later learned this is because they still aren't processed), so his actual tax returns filed revealed only the small incomes and net rental losses that I have described in the chart above.

[382] The T1 adjustment requests that he did file for 2014 and 2015, however, show business losses of $37,092.33 and $25,783.47, and then suddenly in 2016, the T1 Adjustment request shows net business income of $1,277,028.12. None of this made sense to the Court initially.

[383] During the father's testimony, I had difficulty understanding how the father would reconcile his explanation that he lost money attempting to build the Winston Churchill Property, with a T1 Adjustment request apparently reporting net income of $1,277,028.12 in 2016. The Court also wondered how the father would pay the tax on this income once the adjustment request was processed.

[384] I was told that this would be explained by the father's accountant, Akinwunmi Akintomide.

[385] Mr. Akintomide testified several days into the trial, on July 10, 2013.

[386] Mr. Akintomide has only recently become the father's accountant. The first tax return that Mr. Akintomide prepared for the father was for the calendar year 2016. He did help the father prepare the T1 adjustments though going back to 2009, but again, these were not initially provided to the Court.

[387] Mr. Akintomide testified that when he first started working for the father, the father had come into office with a shoe box, another box and a backpack, each filled with disorganized papers. It took Mr. Akintomide about three weeks to sort through the paper and organize them.

[388] Once Mr. Akintomide had a proper understanding of the father's plan and attempt to build the Winston Churchill Property, he telephoned the CRA to ask questions about how he should report income and expenses. Based on his discussion with CRA, Mr. Akintomide advised the father that he was in a construction business and so he needed to go back to the beginning of the project and deduct expenses associated with developing and building the property each year. The various T1 Adjustments that he prepared reveal that he deducted the cost of the land purchase, development expenses, the cost of materials and other expenses to build. Those expenses would then be carried forward and ultimately deducted against the sale proceeds in the year of sale, which ended up being 2016. As the Queens Quay Condominium was also sold 2016, he also deducted the cost base of the condominium.

[389] Upon hearing this evidence, the Court asked to see the T1 Adjustments going back to the year in which the father started this project, even if those predated the 2012 order. But the father had tendered the last three years only.

[390] The father then tendered the T1 Adjustments beginning in 2009. But he did not tender any corresponding revised tax returns showing that the adjustments had been processed (at this point the Court was still unaware that the T1 adjustment requests had not been processed).

[391] At the request of counsel, I adjourned the completion of the accountant's evidence to the next trial date, which ended up being September 14, 2018, to give the mother an opportunity to review the documents and prepare her cross-examination. I also ordered the father to obtain tax returns for 2009 through 2012 not previously produced, and any Notices of Assessment or Reassessment for the years 2009 through 2016 as these would have shown the processed cumulative effect of the adjustments.

[392] When the parties returned to Court on September 14, 2018, the documents that the father had supplied still contained omissions. As I explained above, the father ordered print outs from the CRA of his taxes for the years 2009 to 2016. What he obtained were Income Tax Return – Information Regulars for those years. On the face of the documents, the father obtained these on July 13, 2018, which was three days after the date of my order on July 10, 2018, but he did not produce them to the mother's counsel until just before the September 14, 2018 return date.

[393] Then both counsel discovered in Court that the certain pages of the documents were missing from several of the print outs. In response, I was told that the CRA had not yet processed the T1 adjustment requests in any event.

[394] Then the father sought another adjournment to allow the CRA to proceed with the adjustments. I denied the adjournment request. For oral reasons, I indicated I would decide the trial based on the record before me and mother's counsel commenced her closing submissions that day.

[395] On September 14, 2018, the accountant was back in the witness box. On two different days, he was available to be questioned about the work he did for the father and the basis for the adjustment requests. I accept the accountant's evidence regarding the accounting approach he followed notwithstanding that the CRA had not yet processed the adjustments.

[396] The accountant also explained that he viewed the expenses the father deducted in various years to be proper deductions from income. He went through a number of the deductions in his testimony. I accept his evidence.

[397] When the accountant re-attended on September 14, 2018, he was cross-examined. The mother's cross-examination of him ended up being very short, and did not uncover any additional helpful information.

[398] The T1 Adjustments reveal that from 2009 to 2016:

(a) The father incurred cumulative land cost, materials costs, development and construction expenses of $1,448,234.03. This includes the initial land cost of $265,609 in 2009 to purchase the Winston Churchill property;

(b) Again, both the Winston Churchill Property and the Queens Quay Condominium were sold in 2016. The combined sale price of the two properties was $1,806,000.00;

(c) Again, the cost base of the Queens Quay Condominium was $360,000.00; and

(d) Netted out, the father's attempt to develop a property over 7 years resulted in the loss of his equity in the Queens Quay Condominium and an overall loss of $2,234.04.

[399] While deductions for tax purposes are not always appropriate when determining income for family law, it would not make sense in this case to treat the father as having gross income equivalent to the sale proceeds or some other version that considers the sale proceeds without taking into account the expenses he incurred over the years to be able to earn the sale proceeds. In the child support analysis, the father did not get credit for any of the various business losses that he incurred in the various previous years that he paid child support. Under the circumstances, I do not view it as fair or reasonable to include the sale proceeds, or a portion of them, without regard to all of the money he spent to earn the sale proceeds.

[400] If I am mistaken about this and the Guidelines preclude the Court from deducting the historical expenses back to 2009, then I would exclude any income from the sale of the properties in 2016 as non-recurring pursuant to section 17 of the Guidelines. I would do so to arrive at a more fair determination of the father's income.

(5) The Caledon Property

[401] Even though the cumulative effect is that the father did not earn any income on sale of the two properties, the father did still receive some equity out of the Winston Churchill Property.

[402] The mother submitted that the father received "profit" of $210,000.00. Mr. Scryzlo's trust ledger reveals that on November 8, 2016, the father actually received net sale proceeds of $311,158.04. I disagree with the mother's characterization of this as "profit".

[403] The father used some of this money to purchase another property at 222 King Street, in Caledon, Ontario (the "Caledon Property"). This is a vacant lot. The father testified it is 1/3 of an acre on a hill. It is in a conservation area, which he says limits what he can build there, but he is still able to build.

[404] He wants to try his hand at property development again, but he is not able to afford to build another property at this time though.

[405] The mother relies on this as evidence that the father intends to continue to have a property development business.

[406] On December 1, 2016, the father gave Mr. Scryzlo funds of $205,300.00 to purchase the Caledon Property. This means that he had $105,858.04 left over from the sale of the Winston Churchill Property.

[407] To complete the purchase of the Caledon Property, on December 2, 2016, the father obtained mortgage funds of $201,866.13 from John Rizakos at OGI Capital. The real estate broker was Ms. Malkah.

[408] These two amounts that the father gave to Mr. Scryzlo (money from the sale of Winston Churchill and mortgage through Ms. Malkah) total $407,166.13, but the father didn't need that much money to complete the purchase. The purchase was completed on December 14, 2016. According to Mr. Scryzlo's client ledger, the father received back $13,349.78.

[409] Above, I said the money he received from the sale of the Winston Churchill Property is not profit nor income. In my view, it represents his equity that he had invested from his own funds or from the loans from friends and family. Again, the father invested some of his early inheritance into the Queens Quay Condominium. He then refinanced it to invest into the Winston Churchill Property. He also received money from the mother on the transfer of the Cobblestone Property her. And he borrowed money from friends and family who have yet to be repaid.

[410] I note that the father has not explained what he did with the left over $119,337.82 after he purchased the Caledon Property (ie. the $105,858.04 he had left over from the Winston Churchill Property sale + $13,479.78 he got back from Mr. Scryzlo). The father's financial statement sworn May 7, 2018 appears to contain this omission and the father did not explain this. Nor was the father cross-examined on this point. Neither party went through these financial details that were evident on Mr. Scryzlo's client ledger.

[411] I also do not understand what exactly he says he is paying for the mortgage on the Caledon Property, if anything. This aspect of the financial statement is incomprehensible. It states that he is paying "$14,7500.00" per month towards the $210,000 mortgage. But at least insofar as one of his mortgages was concerned, Ms. Malkah testified that the father prepaid the interest from the principle when the funds were advanced.

[412] I do not know whether the left over money has been spent or whether the father still has it and he didn't disclose it. This ought to have been disclosed and explained.

[413] But even if it had been, it too is not income.

[414] Had the father still owed child support arrears by the time of trial then this capital could have been used to pay the arrears. But the father does not owe child support arrears based on the findings that I have made. Rather, he has overpaid support.

[415] I would not add up the equity on the sale of the Winston Churchill Property and the loans and divided them by four as the mother has asked. This would result in an order for child support based on his capital, not income, which is not supported by the Guidelines. And the loans were not gifts.

[416] The father's friends and family advanced him money to help with the construction project. Each witness testified that he or she has an expectation that he or she will be repaid. This is not a case where the funds were advanced to support a lifestyle. See Bak v. Dobell, 2007 ONCA 304 ¶ 45-59. It is not appropriate to impute an income on the basis of the loans he received.

[417] Even if this approach was appropriate for the years between 2014 and 2018 (which I am not finding), it would also be illogical to continue to impute an income of $75,000 to the father going forward using this methodology as the mother argued the Court should.

[418] To do so, the father would continue to have to draw capital of $210,000 every four years (which he does not have), and his friends and family would have to continue to agree to advance him funds for ongoing construction projects when they haven't yet been repaid on the first project.

[419] This does not make sense.

[420] It was not particularly reasonable for the father to buy a replacement property in Caledon with the goal of building again given what happened the first time and given his inability to finance another construction project. But as I have declined to reduce the income that was already imputed to him, the choice is his and his decision to buy another property does not impact the analysis.

[421] He is expected to earn what was imputed to him in 2012 to contribute towards Daineil's support. If he chooses not to do that and devotes time to trying to build another property so be it, but the Court is not allowing him to pay child support for Daineil based on reduced income while/if he spends time working on a new house.

[422] I might have been inclined to attribute some investment income to the father from this capital of $311,158.04 that he received on the sale of the Winston Churchill Property, or some portion of it. In such a scenario, it might not be fair and reasonable to attribute investment income on the whole amount, since he owes considerable debts to friends and family. But as neither counsel either argued that there should be investment income attributed to him on the whole or part of the sale proceeds, nor provided the Court with any calculations, I decline to consider this further.

L. Applicable Legal Principles Regarding Retroactive Child Support for DJ

[423] Finally, I now turn to each party's retroactive claims.

[424] I need not address the mother's request for a retroactive increase for the children that were in her care after January 1, 2014 until she ceased being entitled to support for them, given my finding that the father did not earn increased income.

[425] However, regarding the father's child support payments after the 2012 Order, he has clearly overpaid as the dates at which the mother was no longer entitled to support for each of three different children passed.

[426] Specifically, the 2012 Order became too high as of September 1, 2013 when Dainique's support ended, and further so when DJ moved in with his father as of February 1, 2015. Then, as of June 30, 2016, when child support for Dante ended, the mother was left with Daineil in her care, and the father had DJ.

[427] It was at that point, a split custody situation started, and section 8 of the Guidelines became applicable.

[428] As the mother earns more than the father, the net effect is that she would have become the child support payor as of July 1, 2016, had the parties dealt with this in a timely fashion.

[429] The amount of his overpayment only grows if the Court orders retroactive child support for DJ as of February 1, 2015 when he moved in with his father.

[430] In this case, the father has a claim for a credit for the overpayment he says he made. He did not quantify it for the Court.

[431] I will deal both with the father's retroactive claim for DJ and the overpayment issue together. To craft a fair and just order in this case these issues cannot be viewed in isolation from one another. Nor should the Court decide these issues without regard to what will happen in the future for this family.

[432] I intend to consider and weigh the quantum of the retroactive support claimed for DJ, the amount of the overpayment that the father paid, the mother's retroactive claim for section 7 expenses, both parties' past and present financial circumstances, the fact that each parent will each now be paying child support for one child pursuant to section 8 of the Guidelines, the mother's claim for future section 7 expenses, and the other factors in S. (D.B.) v. G. (S.R.), 2006 SCC 37 ("D.B.S.") as well as Meyer v. Content, to strike what I view to be the right balance.

[433] The leading case regarding retroactive support is of course D.B.S. Two overarching principles from this case emerge.

[434] First, each parent has an obligation to ensure that his or her children receives proper support in a timely manner. And second, the Court must balance the payor's interest in the certainty of the status quo with the need for fairness and flexibility.

[435] And when deciding whether to order retroactive support, a Court will consider:

(a) the reason for the delay in bringing the claim;

(b) the conduct of the payor parent;

(c) the child's circumstances; and

(d) any hardship that may be occasioned by the award.

[436] The test regarding whether a payor can recover an overpayment is set out extensively in Meyer v. Content. There is limited statutory authority to make such an order in sections 8.4(4) and (5) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 (the "FRSAEA"). The decision about whether to make a repayment order pursuant to those sections is discretionary.

[437] At ¶ 94-96 of Meyer v. Content, 2014 ONSC 6001, Chappel J. held that there is no automatic entitlement to be reimbursed for an overpayment of child support. Rather, the determination about whether the Court should order the repayment of support involves a three step analysis, namely:

(a) First, the Court must make a finding respecting when child support terminated;

(b) Second, the Court must ask whether a reasonable litigant who has made reasonable efforts to become informed about their support entitlement would have advised the FRO that support had terminated; and

(c) Third, even if the Court determines that the recipient should have taken steps to stop enforcement, the Court maintains a discretion as to whether or not to order the recipient to reimburse the payor for all or part of the overpayment. This step requires the Court to consider "the circumstances of each of the parties to the support order".

[438] Regarding the exercise of discretion at the third step of the test, Chappell J. turned to two older Court of Appeal decisions regarding the rescission of child support arrears and adapted the principles in those cases to take "into consideration the unique dynamics of cases in which overpayments arise". The list of considerations is lengthy and I will not repeat them here. See ¶ 100 of Meyer v. Content. I note that while modified, the factors listed at ¶ 100 of Meyer v. Content do overlap with some of the factors that a Court considers when deciding whether to order retroactive support.

M. Application and Findings Regarding Retroactive Child Support For DJ as Well As Prospective Child Support

[439] I begin by calculating what the support payments would have been, based on the findings that I have made, specifically based on the father having imputed income of $24,000, and based on child support for Dainique ending as of September 1, 2013, based on the mother being entitled to child support for DJ only until January 1, 2015, based on child support for Dante ending as of June 30, 2016, and based on Daineil continuing to reside with his mother.

[440] The calculations in the table below include a separate calculation of what the mother would have paid the father for DJ based on the applicable tables, had there been a child support order in place as of February 1, 2015, or were the Court to order retroactive support to that date.

[441] The amount of the overpayment is either $10,217.08 or $26,291.08 if retroactive child support is ordered for DJ as of February 1, 2015. If some other commencement date for DJ were to be ordered, then the overpayment would fall in between.

[442] This is calculated as follows:

Time Period	Number of Children With Mother	Father's Monthly Table Child Support Based on $24,000	Total Amount During Period
November 1, 2012 to August 31, 2013 (10 months) (per Order of Kerrigan-Brownridge J. dated October 25, 2012)	4 (Dainique, DJ, Dante and Daineil)	$600	$6,000
September 1, 2013 to January 31, 2015 (17 months)	3 (DJ, Dante and Daineil)	$493	$8,381
February 1, 2015 to June 30, 2016 (17 months)	2 (Dante and Daineil)	$359	$6,103
July 1, 2016 to December 31, 2018 (30 months)	1 (Daineil only)	$192	$5,760
Subtotal			$26,244.00
LESS:
Time Period	Number of Children With Father	Mother's Monthly Table Child Support	Total Amount During Period
February 1, 2015 to December 31, 2015 (11 months)	1 (DJ only)	$365 (Based on 2015 Income of $40,512)	$4,015
January 1, 2016 to December 31, 2016 (12 months)	1 (DJ only)	$296 (Based on 2016 Income of $34,386)	$3,552
January 1, 2017 to November 1, 2017 (11 months)	1 (DJ only)	$355 (Based on 2017 Income of $39,597.49)	$3,905
December 1, 2017 to December 31, 2018 (13 months – new table)	1 (DJ only)	$354 (Based on 2017 Income of $39,597.49)	$4,602
Subtotal			$16,074.00
LESS:
Father's payments through FRO up to September 13, 2018. See Exhibit 17.			$36,461.08

[443] At the trial, the father also tendered a chart that includes money he says he paid directly to the mother, and money he says he paid directly to Dante and Dainqiue in the past. The mother disputes that direct payments she received from the father were for child support, and she had little knowledge of the direct payments the father says he paid to the children.

[444] Some of the direct payments to the mother on his chart pre-date the 2012 Order. The mother testified that amounts she received after 2012 were for the reimbursement for certain expenses she says she had incurred on the father's behalf. The amounts that come after 2012 on the father's chart amount to $1,900.00. Given the passage of time and the conflicting evidence, I cannot determine whether the amounts he paid directly were for child support or other amounts. In any case, the support order was to be paid through the FRO so I would not give the father credit for this in the overpayment calculation in this case.

[445] I would also decline to give the father credit for the $1,110 he says he gave to Dante and Dainique in 2013. If the father wanted to give the children money directly that was his prerogative, but the child support order provided that it was to be paid to the mother.

[446] Both parents have behaved unreasonably in this case regarding the child support issues. It is my view that the mother ought to have advised the FRO of the terminating events or changes in circumstances for Dainique, Dante and DJ but she didn't. The evidence at trial revealed that there was no real issue about Dainique and Dante, and in DJ's case, it was common ground that he moved in with his father. At a minimum, this would have potentially avoided any overpayment, although perhaps at the time of the changes she had unresolved questions about the father's income.

[447] I have also found the mother's position respecting her obligation to support DJ to be unreasonable. As I have said, her position was that DJ was entitled to child support during the entire time he was in her care, including while away at school in the US. But then inconsistently, once DJ went to live with his father, she says he is no longer entitled, even though he had a health crisis almost immediately thereafter, and he is still working towards attaining self-sufficiency.

[448] Neither parent acted promptly regarding the retroactive issues in this case. It is common ground that the parents refused to communicate with each other. They didn't exchange disclosure with each other annually.

[449] Meanwhile, the father did nothing to deal with terminating child support over the years since 2012 as circumstances changed even though he knew that Dainique left, that DJ moved in with him and then that Dante graduated high school. He didn't even seek support for DJ right up until this trial started. He didn't plead child support for DJ at all, even though he was given the chance to amend his pleading by Pawagi J.

[450] It was only at this trial that he said he wanted support for DJ. While I allowed his claim to proceed, I have considered it and I will be ordering prospective support for DJ, his failure to act diligently in the past or even in the litigation prior to trial must be taken into account when considering the retroactive claims.

[451] On the other hand, the Court must be mindful that child support is the right of the child. I am mindful that DJ is a dependant and has difficulties with his mental health. The Court must be vigilant to not deprive him of the support to which he is entitled on account of parental inaction. But this must also be balanced against the fact a retroactive award would cause financial strain on the mother's household. And she continues to care for Daineil.

[452] I have already made a finding that the mother has suffered hardship in the past. Quite apart from the overpayment issue, which I deal with next, in my view, I must take this into account in deciding whether to order retroactive support for DJ. It is clear from the FRO Statement of Arrears filed at this trial that the father did not pay child support on time, and allowed child support arrears to accumulate for a considerable period of time in the past. This has undoubtedly contributed towards the hardship.

[453] In fact, the FRO Statement of arrears reveals that he made very few payments after the Order of Kerrigan-Brownridge J. in 2012 right up until the Winston Churchill Property was sold. The father allowed considerable child support arrears to accumulate under the 2012 Order. Then in November 2016, the FRO was able to collect $21,082.25 of arrears around the time that the Winston Churchill property was sold. Granted the arrears as reflected on the FRO statement would have been too high as a result of the changes in the children's circumstances, but as of November 2016 he still would have owed her some money even had the changes been adjudicated at that point. So until then the mother and the children (when they were in her care) went without proper support. The FRO Statement reveals the father's general disregard towards meeting his child support obligations in a timely fashion over a number of years.

[454] On the other hand, the mother's position about the father's income and what she thought he should have been paying was unrealistic. The amount of the overpayment that the Court finds the father made, highlights the extent to which the mother's expectations were unreasonable.

[455] This dispute about child support has impacted the parenting issues. The mother's anger towards the father was palpable throughout the trial. The mother wanted to make her view known to the Court that the father did not properly support the children, ever. At one point she said, "the fact that I am here with an individual who doesn't want to pay child support is pathetic". The parents' conflict over money has contributed to the current situation of their not communicating at all.

[456] In the result, balancing all of these factors, the Court will exercise its discretion and it will not award retroactive child support for DJ.

[457] There will be a prospective order that the mother owes child support to the father for DJ commencing January 1, 2019 only, to be set off against the child support the father owes the mother for Daineil pursuant to section 8 of the Guidelines.

[458] This means that the mother will commence paying the net amount of the two numbers in child support to the father in the new year.

[459] Regarding the overpayment, neither party made proper submissions about how the Court should deal with it.

[460] The mother's position, which I have not accepted, is that she is owed money on account of child support arrears. Her arguments were premised on the Court accepting her analysis and increasing the father's income and child support retroactively, in which case, she said she is entitled to further arrears of $13,594.00. As I have not accepted her analysis, there are no arrears owing.

[461] The mother did not make alternative submissions regarding what should happen if the father's position prevailed and an overpayment was found to be owing.

[462] The father, on the other hand, did say he wanted the overpayment back. But again, he did not tell the Court properly how much the overpayment was, nor how it should be dealt with.

[463] The father tendered a draft Order at the end of the trial, saying that he wanted the arrears reduced to zero and that he should be given a credit (unquantified) for the excess funds he paid, subject to "a judicial determination of [his] income". He did not provide calculations or different scenarios.

[464] Furthermore and separately, his draft Order also seeks an additional credit for any money he is says he is owed on account of his retroactive claim for DJ. That aspect of the draft Order leaves two blanks for the Court to fill in. He did not tally up or fully quantify his claim, and the number of months that he said child support should be paid for DJ in 2015 also contains an error.

[465] Like the mother, the father also did not make submissions about the test for an overpayment, nor whether it has been met. Neither party either provided the Court with or referred to the test in Meyer v. Content, nor the applicable provisions in the FRSAEA. Neither made submissions about any other jurisdiction, such as whether the Court even has the ability to order a set-off, or a credit, for past child support overpayments, or retroactive child support, against future child support.

[466] And in this case, there is nothing to set off, as the father no longer owes the mother arrears or prospective child support. Again, as a result of the Court's order, he will be the net support recipient as of January 1, 2019.

[467] The failure to make proper submissions places the Court in a difficult position. The Court must decide the case based on what is before it. The Court would not order any repayment of the overpayment.

N. Section 7 Expenses

[468] In her trial affidavit sworn March 20, 2018, the mother has also claimed Niagara College expenses and basketball expenses for the last number of years.

[469] The D.B.S. factors apply to claims for retroactive section 7 expenses.

[470] There was no past discussion with the father about these expenses in advance of the mother incurring them. Given the amount of the overpayment that that the Court is not requiring to be repaid and the Court's analysis denying the father retroactive support for DJ, the Court exercises its discretion and finds that it would not be fair nor reasonable to expect the father to contribute to these expenses. I find that this would impose a hardship on him, and I specifically consider the fact he was caring for DJ without support from the mother since February of 2015. Therefore there will be no order requiring the father to pay retroactive 7 expenses.

[471] Going forward, the mother wants the father to share in future basketball expenses for Daineil. I was given no evidence as to what programs Daineil will take, what his needs and talents are, nor what these costs will be.

[472] I also note that both parents are of modest means. The cost of basketball in the future may very well be unaffordable for this family.

[473] There is a real communication problem between these parents. I do not accept the mother's counsel's say-so (on the mother's behalf) that the mother will actually communicate with the father about basketball in the future.

[474] Having regard to these factors, plus the fact that the Court did not order retroactive support to the father or the overpayment, there will be no order requiring the father to contribute towards Daineil's basketball expenses in the future at this time.

PART VIII: ORDER

[475] Based on the foregoing, I make the following orders. The Order of Kerrigan-Brownridge J. dated October 25, 2012 is varied in its entirety and is replaced with the following terms:

(a) The mother shall have final sole custody of Daineil Campbell, born July 25 […];

(b) Each parent may make day to day decisions concerning Daineil when he is in the care of that parent;

(c) In the event of an emergency concerning Daineil, the parent with whom Daineil is then residing may make the emergency decision but he or she shall attempt to contact the other parent first via telephone, failing which via text message, where feasible, to solicit his or her opinion;

(d) Within 7 days of the release of this decision, the parents shall each either create a new email address or designate an existing email address that each wishes to use for communication with the other about Daineil (or their other children where necessary). He and she shall advise the other of the email address that will be used through counsel;

(e) Each parent shall then continue to use that email address for communication about Daineil going forward. If either parent cancels the email and sets up a new one in the future, then he or she shall immediately inform the other parent of the new address and then he or she shall keep the other apprised of the email address going forward. The intent of this provision is to ensure that each parent has an email address at all times with which they shall communicate about Daineil (or their other children where necessary). The parents shall check his and her communication email account regularly;

(f) The parents shall keep each other fully informed of his and her address via email for so long as DJ or Daineil are entitled to child support. If either parent moves, then he or she must provide the other of his or her new address at least 90 days before the move. This information shall be exchanged via the communication email address;

(g) Daineil is currently enrolled in basketball. If this has not already been done, then within 7 days of the release of this decision, the mother shall provide to the father any current schedule of Daineil's basketball games, practices, events and tournaments. The schedule must include the location of these events and the contact information for any important persons involved with basketball. This information shall be provided via the communication email. Then the mother shall provide further schedules and this information to the father as soon as she gets it, but at least 30 days in advance of future basketball seasons, also via the communication email address;

(h) The mother shall provide to the father, in writing via the communication email address, the details of any appointments or special events of a health or educational nature, which shall include medical appointments, parent-teacher interviews, events at the child's school, events at the child's activities, and the like. Details means dates and times and locations;

(i) The mother shall provide the information in paragraph (h) above as soon as she knows of the details of the appointments or events, and in any case as far in advance of the appointment or event as possible. The father is at liberty to attend such appointments or events, or in his discretion he may arrange separate appointments;

(j) Prior to making any major decisions concerning Daineil's health, education, religion or extra-curricular activities, the mother shall consult with the father. She shall give him at least 60 days' notice of the decision she wishes to make and she shall provide him all documentation that she considered regarding the particular issue. In an unusual situation where 60 days' notice isn't possible, then she shall provide this information and documentation immediately upon her receipt of it. She shall do so in writing by the communication email address. The father is then entitled to then provide the mother with his views. He has 30 days to do so, or as soon as possible in cases where shorter notice is required. He shall do so via the communication email address. The mother must consider his views before making a decision. The mother is then entitled to make a decision. If she disagrees with the father's input, she must explain why to him in writing via the communication email address;

(k) The parents may also communicate via telephone about Daineil about the issues set out above if they both agree, otherwise they shall use the communication email address. They shall communicate via telephone in case of ad hoc changes to the schedule or in case of emergencies to ensure that the other has notice. The parents shall communicate directly with each other about ad hoc schedule changes or emergencies and they shall not communicate about these issues via Daineil or the other children;

(l) The parents shall not use any of their children as messengers to manage any of the issues about which the Court has ordered them to communicate;

(m) The parents shall keep their communication with each other civil and they shall only discuss issues relating to Daineil (or any of their other children where necessary);

(n) Daineil is enrolled in basketball. The mother is entitled to continue to enrol Daineil in basketball. Basketball may fall on the father's parenting time. If the mother intends to enrol Daineil in any other extra-curricular activities, she shall discuss it with the father using the protocol in paragraph (j) and attempt to secure his consent. If the mother enrols Daineil in additional activities in the absence of the father's consent after following the protocol, then unless the father agrees otherwise, he is not under any obligation to take Daineil to any other extra-curricular activities (other than basketball) during his parenting time;

(o) The father shall have access to Daineil on alternating weekends from Fridays after school until Monday morning return to school. If the father's weekend happens to fall on a holiday or a PA day, then the weekend shall start on Thursday after school and/or end on Tuesday morning as the case may be;

(p) The father shall pick the child up at school before his weekends and he shall drop the child off at school after his weekends;

(q) The father shall ensure that he takes Daineil to his basketball games, practices, tournaments and events when Daineil is in his care;

(r) The holiday schedule overrides the regular schedule. The holiday schedule set out in paragraphs 6-11 of the Order of Kerrigan-Brownridge J. dated October 25, 2012 shall be incorporated into this Order. When counsel prepares the draft Order, he or she shall reproduce the wording of those paragraphs to ensure that they are fully incorporated into this Order;

(s) This decision is being released two weeks before Christmas 2018. This is an even numbered year. For clarity, this means that Daineil shall be with the father from the last day of school until the mid-point of the break, and this includes Christmas Eve, Christmas Day and Boxing Day. The mother gets the second half of the break until Daineil's return to school, which shall include New Year's Eve and New Year's Day. If there is any dispute whatsoever as to the specific start and end dates, then counsel are directed to file a 14B motion with the school calendar attached on or before December 14, 2018 and I will set the dates;

(t) There are no child support arrears owing by the father to the mother. If the FRO has any arrears reflected on its statement of arrears currently owing, then they shall be immediately rescinded as of this date. If the FRO collects any payments from the father after this date, then those amounts shall be refunded to the father. Counsel are directed to notify the FRO immediately of this decision;

(u) The father's claim for retroactive support for DJ is dismissed;

(v) The father's claim for a credit for any overpayment of child support to the mother is dismissed;

(w) The child, Dane Jr. Campbell, born June 6, […], resides primarily with his father. He is a dependant within the meaning of section 29 of the Family Law Act and the Court finds that he is entitled to child support. Therefore, commencing January 1, 2019 and on the first day of each month thereafter, the mother shall pay child support to the father for the child, Dane Jr. Campbell, born June 6, […], in the amount of $354.00 per month. This is the table amount of child support for one child based on the mother's annual income of $39,597.49 that is reflected on her 2017 year end pay stub. This is the most current income information for the mother over a full year that was available to the Court at the time of this trial;

(x) The child, Daineil Campbell, born July 25, […] resides primarily with his mother. He is a dependant within the meaning of section 29 of the Family Law Act and the Court finds that he is entitled to child support. Commencing January 1, 2019 and on the first day of each month thereafter, the father shall pay child support to the mother for the child, Daineil Campbell, born July 25, […], in the amount of $192.00 per month. This is the table amount of child support for one child based on imputed income to the father of $24,000.00 per year;

(y) The net effect of paragraphs (w) and (x) is that the mother shall pay child support to the father in the amount of $162.00 per month commencing January 1, 2019 and on the first day of each month thereafter. This order is pursuant to section 8 of the Guidelines;

(z) There shall be no order for section 7 expenses at this time;

(aa) The parties shall exchange income disclosure annually in accordance with the Guidelines. The Order shall contain the standard clause pursuant to section 24.1 of the Guidelines;

(bb) Using the communication email, the father shall advise the mother of the details of any training programs in which DJ enrols, if he gets a job details of what that job is, his hours of work and his rate of pay, whether DJ applies for ODSP, and if so, the outcome of any application for ODSP plus any income he receives from ODSP. The father shall provide any documentary proof that is available to him regarding these matters;

(cc) Counsel shall ensure that the Order contains the standard FRO and interest clauses;

(dd) A support deduction order shall issue;

(ee) If either parent claims costs, costs submissions shall be in writing. Within 7 days, counsel shall advise each other whether his and her client is seeking costs, or defending against a costs claim, or both. The mother called her case first at the trial so she may serve and file her costs submissions first and then the father may respond and/or make any claim for costs that he sees fit. The mother's submissions shall be served and filed by January 15, 2019 and then the father may serve and file his by February 15, 2019. Submissions shall be limited to 5 pages, plus Bills of Costs, Offers and any case law.

[476] I thank counsel for their assistance.

Released: December 11, 2018

Signed: Justice Alex Finlayson