PAULL J.

Introduction

[1] Before the court is the trial of a motion to change brought by L.M.L. seeking to vary his child support obligation and adjust arrears. The trial took place over two days on April 15 & 16, 2019.

[2] The parties testified as did L.M.L.'s partner P.M.

Background and Positions of the Parties

[3] The parties began cohabiting in July 1995, were married in July 1998, and separated on December 24, 2002. They are the parents of two children, T.L. born in 1999 (male) and A.L. born in 2001 (female).

[4] The order under review is the final order of Justice Pockele dated January 27, 2016, made pursuant to minutes of settlement, which provided for, among other things, the following:

a. Joint custody of the children with primary residence with S.L.G.

b. Child support commencing February 1, 2016 in the amount of $892 per month based on L.M.L.'s income of $60,000.

c. Arrears in child support and section 7 expenses fixed in the amount of $14,000 as of January 31, 2016, and repayable at a rate of $150 per month commencing February 1, 2016.

d. Commencing February 1, 2016 L.M.L. to pay an additional $150 per month towards A.L.'s dance.

e. Any additional section 7 expenses must be agreed upon between the parties.

[5] L.M.L. brought his motion to change, which was issued November 28, 2017, seeking a termination of child support for T.L., a suspension of child support for A.L. effective February 1, 2016, and a rescission of any arrears owing. At trial he sought to adjust the child support back to the date of the order based on his actual income.

[6] He supports his claim on the basis that as a result of serious health issues he was no longer able to continue with his employment as a guard at EMDC. The current order was made on the basis of his income from that employment.

[7] S.L.G. takes the position that L.M.L. is intentionally underemployed and the income he earned in 2015 from EMDC, that was the basis of the current order, should be imputed to him.

The Law

[8] The Family Law Act imposes an obligation on every parent to provide support for his or her minor children to the extent that the parent is capable of doing so. The purposes of an order for support of a child is to recognize that each parent has an obligation to provide support for the child, and to apportion the obligation according to the Child Support Guidelines.

[9] In a change motion the burden of proof rests with the moving party, in this case L.M.L. In seeking to vary a child support order a payor must first satisfy the court that there has been a change in circumstances.

[10] In ascertaining whether a change in circumstances has occurred for the purposes of a motion to change child support, the court must consider whether the alleged change was "significant and long lasting; whether it was real and not one of choice." (Brown v. Brown, 2010 NBCA 5; Haisman v. Haisman, 1994 ABCA 249). Where the payor has been unable for relatively short periods of time in the past to make child support payments as they come due, this does not constitute a change in circumstances that meets the threshold for initiating a variation proceeding (Haisman v. Haisman, ibid.).

[11] The Family Law Act requires that a court making an order for the support of the child to do so in accordance with the Child Support Guidelines. Section 19 of the Child Support Guidelines provides that the court may impute to a spouse "such amount of income … as it considers appropriate" and provides a non-exhaustive list of such circumstances. The relevant portions of s. 19 read as follows:

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

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

[12] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the Guidelines is perceived as being a test of reasonableness. Drygala v. Pauli.

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

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

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

3. If not, what income is appropriately imputed?

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

[15] Under the first question in Drygala the onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. Homsi v. Zaya, 2009 ONCA 322.

[16] Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. Filippetto v. Timpano.

[17] The court should draw an adverse inference against the respondent for his failure to comply with his disclosure obligations as provided for in s. 21 of the Guidelines and impute income. Gray v. Rizzi, 2016 ONCA 494; Smith v. Pellegrini; Maimone v. Maimone. In Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure to disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

[18] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way. Riel v. Holland, at paragraph 23. It must be reasoned, thoughtful and highly practical. Hagner v. Hawkins, at paragraph 19.

[19] As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi.

[20] Parents can take jobs with less money as long as the decision is reasonable. A payor cannot be excused from his or her support obligations in furtherance of unrealistic career aspirations. Hanson v. Hanson; Gobin v. Gobin, 2009 ONCJ 245; Charron v. Carriere, 2016 ONSC 4719. Where a party chooses to pursue self-employment, the court will examine whether this is a reasonable choice in the circumstances. Smith v. Smith, 2012 ONSC 1116.

[21] The onus is on the payor parent to justify the decision to reduce their income. The payor cannot just present the income they are earning. The payor's previous income is a rational basis on which to impute income, as it is the amount that the payor would have continued to earn but for their decision to leave their job: Olah v. Olah; Weir v. Therrien; Vitagliano v. Di Stavolo; Zagar v. Zagar, 2006 ONCJ 296; Laing v. Mahmoud, 2011 ONSC 4047.

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

[23] Where the under-employment or unemployment is the result of one's own actions (an event over which the payor had some control) or misconduct, the support obligations will not be reduced or cancelled. Luckey v. Luckey; Maurucci v. Maurucci, 2001 CarswellOnt 4349 (SCJ); Sherwood v. Sherwood.

Evidence and Analysis

[24] The following represents the uncontested facts in this matter:

1. A refraining order was made on November 7, 2017 by Justice Edward which required, among other things, L.M.L. to commence a motion to change within 20 days and to pay $200 in child support on the existing order until such time as the motion to change was heard. L.M.L. has continued to pay this amount since. S.L.G. was not involved in that matter.

2. The children have remained in the primary care of S.L.G. since the final order of January 27, 2016.

3. A.L. attends high school full-time and has accepted an offer to attend University in September 2019.

4. T.L. finished high school in January 2018 and started full-time at College in September 2018. The parties agree that he was not a dependent for the purposes of child support from February 1, 2018 to August 31, 2018.

5. As of April 3, 2019 arrears in child support under the current order stand at $28,205.78 according to the FRO statement.

[25] L.M.L. testified as follows:

1. He graduated in 2008 with a diploma in Police Foundations from Fanshawe College.

2. In or about 2013 while living in Tillsonburg he applied to the Canada Border Services Agency (CBSA) to be a border service agent and spent several months in 2013 in Québec after he was accepted into the training program.

3. After he successfully completed the training he signed a written offer dated December 16, 2013 from CBSA accepting a job in Coulter Manitoba with the salary range between $55,133 and $61,570. The offer included a specific acknowledgement that he could be posted anywhere in Canada.

4. Pursuant to the offer, he moved to Coulter Manitoba and started working there in January 2014.

5. He only stayed there for approximately 3 months and then applied for a leave of absence to pursue a transfer back to Ontario. He is currently on a five year unpaid administrative leave which will expire on April 30, 2019. After that he intends to go on personal leave to continue to pursue, with the assistance of the Union, a transfer to Ontario where he can be closer to his family, his children, and his fiancée and her children.

6. While it remains a possibility that his transfer to Ontario may be approved, he was not hopeful at this point that it would. He would like to return to work for the CBSA but only if it is in Ontario where he can be near his family. He was unwilling to return to his job in Coulter Manitoba although it remained open to him to do so.

7. When he returned to Ontario while on leave he got a job at EMDC as a correctional officer which offered full-time hours. He started at EMDC in December 2014.

8. He worked there throughout 2015 and earned $58,499.46. This was the income information used for the final order on consent of Justice Pockele dated January 27, 2016, which is the order under review.

9. He was put on medical leave from EMDC in February/March 2016 in part because the difficult working environment had a detrimental impact on his mental health.

10. He testified to witnessing and experiencing violence on the job at EMDC, of being spat at and having feces thrown at him. He was cut during one altercation which required that he be tested for hepatitis. He was also impacted as a result of his fellow guards being injured in an altercation in the yard which resulted in 5 guards being hospitalized. He characterized EMDC is an atmosphere of violence and found it intensely stressful to work there.

11. He felt his mental health was impacted and sought assistance. He went to a counsellor who suggested a psychiatrist.

12. He was involuntarily hospitalized at Woodstock General Hospital under a Form 1 in February 2016 for suicidal ideation as a result of an accumulation of personal stressors including his employment at EMDC.

13. After his release from hospital he followed up with counselling and his family physician, Dr. Andrew who put him on medical leave until August 2016. At that time L.M.L. returned to EMDC on a modified schedule. During the time he was off work he believed he was on disability benefits.

14. Upon his return to EMDC in or about August 2016 he put in his notice as he felt his mental health could not cope. He believed his choice was medically supported by his doctor.

15. He is currently going through bankruptcy proceedings having made his assignment on March 5, 2018, and he has not filed his 2018 tax return. With respect to his 2018 income on the first day of trial he provided several T4 statements which totaled $22,197.24, which he stated represented his total income for the year. A majority of his work was through staffing agencies for a waste management company (GFL) out of St. Thomas.

16. He currently resides with his fiancé, P.M. and her 2 children aged 10 and 6. They have lived together for 5 or 6 years.

17. P.M. works as a personal trainer and owns a gym in Tillsonburg. He started working full-time at the gym in or about February/March 2019 and is on a salary of $30,000 per year. He acknowledged providing no pay stubs or other documentary support for this employment.

18. He believed the gym is owned by P.M. through a numbered company and he was not aware of any of the financial particulars of the business. He has no ownership or control over the company or the gym.

19. He confirmed that, other than taking Cialis for blood flow, he presently has no other health issues. He works out of the gym, has no physical disabilities, and his mental state was "better".

20. He acknowledged in cross-examination that he owned a Fabutan franchise (tanning salon) in London through his own numbered company which he was the sole shareholder of. He operated it for 3 years from 2014 to 2017.

21. He acknowledged that his 2017 personal income tax return includes $5200 in employment income from this business.

22. The business closed in January 2018 and he sold it for $1 and "walked away" leaving the equipment there, as the business was not making any money.

23. He testified to taking 2 vacations in 2018. He spent 10 days in Europe and 7 days in Mexico. He testified that his spouse paid for both apart from some money he got from his niece for the Europe trip.

24. He testified in cross-examination that he applied for lots of jobs but not since he started working at the gym. He testified he had interviewed several times with the OPP but felt it was unlikely he would get a job there because of his age.

[26] P.M. testified on behalf of L.M.L. as follows:

1. She and L.M.L. have been in a relationship since May 2013 and began living together in May 2014.

2. There was no clear division in the sharing of living expenses apart from him paying $425 a month for half the rent. She stated that L.M.L. pays what he can when he can, with her paying for everything else.

3. She acknowledged paying for the trip's in 2018 to Europe and Mexico.

4. She is a personal trainer and opened the gym in Tillsonburg in November 2016 and she is the sole owner through a numbered company. A majority of her income comes from her personal training, and her business is doing well presently. At this time the business has 8 part-time employees including L.M.L.

5. L.M.L. started working for the business in February/March 2019 at a salary of $30,000. She draws a salary of $40,000 plus receives additional income from her personal training clients.

6. She was living with L.M.L. when he worked at EMDC and she observed a lot of negative effects including on their relationship and that L.M.L. was becoming increasingly negative, withdrawn, severely depressed, and angry.

7. She brought him to the hospital because of his suicidal thoughts in the spring of 2016. She noted an improvement in his disposition since he stopped working at EMDC.

[27] S.L.G. testified as follows:

1. She has maintained stable employment in the accounts department of a trucking company making approximately $30,000 annually for several years.

2. She was remarried in 2010 but separated in July 2018.

3. She acknowledged not communicating well or at all with L.M.L. presently and that they have not discussed issues related to the children for several years.

4. She testified that she had reached out by email with some receipts regarding section 7 expenses a few times in the past but never got a response.

5. T.L. is just finishing his first year at College in media foundations, and has been accepted there starting in September 2019 into a two-year program in broadcasting.

6. During the school year T.L. lives with her sister in Kitchener and pays her $50 per week. While in school T.L. works part-time at a restaurant for minimum wage, and spends some of his weekends back home.

7. T.L. received OSAP and various grants to assist in paying for school and applied half of the income he had earned, or $5882.83, to pay for tuition and other school related expenses.

8. T.L. will be finished the school year in a couple of weeks and will be returning home to work for the summer to save for next year.

9. A.L. is an honour student in grade 12. She wants to be a teacher and has been accepted at University starting in September 2019.

10. When A.L. finishes high school in June 2019, she intends to work as much is possible at Sobey's over the summer to save money for school, and has applied for several grants and scholarships. She will also be applying for OSAP assistance.

11. She confirmed that A.L. stopped dance on June 1, 2018.

12. She is assisting the children as much a she can which was made more difficult after her separation, and L.M.L. has not assisted with any extra expenses.

13. She itemized various section 7 expenses she was claiming with receipts at Exhibit 3 tab 11 (d), totaling $19,034.83 from 2016 to the present.

[28] The parties consented to the filing of various medical records and reports related to L.M.L.'s hospitalization and treatment in 2016. The records outlined that he was hospitalized involuntarily under a Form 1 in Woodstock General Hospital on February 23, 2016 as a result of numerous personal stressors, including his employment at EMDC, and because of "significant thoughts of suicide" he disclosed during the crisis assessment.

[29] The Discharge Documents outlined a diagnosis of depression and suicidal ideation and noted that he left the hospital on February 28, 2016 against medical advice.

[30] Upon discharge the records noted that his active suicidal ideation had subsided and that he had no active plan for suicide at that time. He was referred back to his family physician, Dr. Andrew, "as soon as possible to reassess his status".

[31] L.M.L. saw Dr. Andrew following his discharge and he was put on sick leave which was extended until August 2016. In a report dated October 14, 2018 Dr. Andrew outlined the following:

1. He first saw L.M.L. after his discharge on March 1, 2016 and put him on a leave from work, noting multiple life stressors including L.M.L.'s employment.

2. He saw L.M.L. again on May 31, 2016 and noted he was "still very anxious about returning to work". As a result Dr. Andrew put him on indefinite leave. On August 29, 2016 L.M.L. returned to work at EMDC and was not coping well in spite of changes to his work schedule.

3. Dr. Andrew concluded that L.M.L.'s "decision to quit his job as a corrections officer, would be medically supported due to his mental health issues".

[32] I accept the evidence of L.M.L. with respect to the circumstances of his employment at EMDC and its impact on his mental health. His evidence on this point was clear, convincing, and cogent.

[33] It was consistent with the information in the medical records from Woodstock General Hospital and the reports from Dr. Andrew, and his evidence on this point remained consistent during cross-examination.

[34] It was also consistent with the evidence of P.M. in terms of her observations of the negative changes she observed in L.M.L. which led her to take him to the hospital in the spring of 2016 where he was involuntarily admitted under a Form 1. I accept her evidence on the issue of the negative impact the job at EMDC had on his mental health. Her evidence and description of L.M.L. during this period was presented in a straightforward and forthright manner and was consistent with the hospital and medical records.

[35] I also accept the evidence of S.L.G. with respect to her current circumstances and the expenses she has incurred on behalf of the children, particularly as it relates to school expenses. She provided confirmation by way of receipts, and the expenses themselves were not disputed by L.M.L., other than that he was not consulted in advance about them.

Arrears and Ongoing Child Support

[36] L.M.L. acknowledges that there will be arrears in child support but takes the position that they should be calculated based on his actual earnings.

[37] S.L.G.'s position is that the motion should be dismissed as there has not been a change in circumstances, or alternatively, if there has been a change in circumstances then income should be imputed in the amount of $60,000, which is what he could earn if he returned to his job at CBSA.

[38] S.L.G.'s income has remained relatively stable at approximately $30,000 per year.

[39] The evidence of L.M.L.'s income was as follows:

2015: $58,499.46 (from his Notice of Assessment)

2016: $27,893.10 (total of employment income and benefits outlined in his Notice of Assessment)

2017: $17,548 (derived from employment income from his numbered company, RSP income, and an OPSUE pension adjustment as outlined in his Notice of Assessment)

2018: $22,197.24 (total income derived from several T4's filed as Exhibit 5)

2019: $30,000 (based on oral evidence)

[40] L.M.L. filed 2 financial statements in this matter. The first sworn November 22, 2017 claimed self-employment income through his numbered company operating as a Fabutan. He claimed employment income of $341 per month and other income of $575 per month for total income of $916 a month or $10,992 per year.

[41] The second financial statement was sworn October 31, 2018 and stated employment income of $2,827.20 per month or $33,926 per year.

[42] With respect to the first issue to be determined I accept that L.M.L. has established that there has been a change in circumstances following the order of January 27, 2016 for the following reasons.

[43] His employment at EMDC had a significant and negative impact on his mental health which ultimately led him to being involuntarily hospitalized in early 2016, and his family physician, Dr. Andrew putting him on medical leave from work upon his discharge from the hospital.

[44] The deterioration of his mental health led to difficulties in his personal relationship with his partner, and she observed an ongoing deterioration in this mental state which led her to ultimately take him to the hospital where he was admitted.

[45] L.M.L. attempted to return to work at EMDC in August 2016 on a modified schedule but was unable to do so. The uncontested medical opinion of Dr. Andrew was that L.M.L.'s "decision to quit his job as a corrections officer, would be medically supported due to his mental health issues."

[46] It was suggested that his choice to leave his job at EMDC on the basis of his deteriorating mental health was not legitimate. I do not accept that the circumstances of his employment at EMDC, the symptoms of his mental health deterioration which impacted his functioning and relationship, and ultimately resulted in his involuntary hospitalization, were feigned and the product of a prolonged and elaborate ruse to avoid his child support obligation.

[47] On the basis of the evidence before the court he has established that there has been a change in circumstances soon after the order was made which justifies a review of child support.

[48] The issue then becomes whether it is appropriate when calculating child support to use the annual incomes as stated by L.M.L., or whether another income should be imputed to him for some or all of the years under review since the change in circumstances.

[49] The first question under Drygala relates to whether L.M.L. has been intentionally underemployed or unemployed for any or all of the time since the change in circumstances.

[50] For 2016 based on the reasons outlined above in terms of the medical evidence and L.M.L.'s mental health issues a finding that L.M.L. was intentionally underemployed for that year is not appropriate. It was clear he could no longer cope with the working conditions at EMDC and his doctor authorized his leave and was of the view that quitting that employment was medically necessary.

[51] S.L.G. has not satisfied the onus of establishing that for 2016 L.M.L. was intentionally underemployed. As such, for the purposes of calculating child support his actual income for 2016 of $27,893.10 as outlined in his Notice of Assessment is appropriate.

[52] Therefore commencing February 1, 2016 to December 31, 2016 child support shall be payable by the applicant to the respondent the amount of $426 per month for two children based on income of $27,893.10.

[53] However, from January 1, 2017 onward I am satisfied that the applicant remains intentionally underemployed for the following reasons.

[54] The medical evidence supported that he was not employable for much of 2016 and that he should not return to EMDC, but did not suggest that he was not otherwise capable of other employment beginning in 2017. L.M.L. provided no other or updated medical evidence to support that he could not return to full-time employment outside of EMDC.

[55] Further, there was a complete absence of evidence of any reasonable job search by L.M.L.. He provided no list of jobs applied for, a copy of his resume or CV, evidence of correspondence with potential employers, or of any other efforts being made to obtain employment. He provided no direct evidence of his job search and only offered in cross-examination that he had applied for lots of jobs including the OPP but provided no other particulars. On this basis alone a finding of intentional underemployment is appropriate.

[56] In addition, the financial disclosure provided by the applicant was woefully inadequate with respect to his business. He acknowledged in cross-examination owning and operating a Fabutan franchise from 2014 to the beginning of 2018 through a solely owned numbered company but provided no particulars. His tax return discloses employment income from his numbered company of $5,200 in 2017, which represents the total income he received from employment for that year.

[57] A self-employed person has the onus of demonstrating clearly the basis of their gross and net income. This includes demonstrating that the deductions from gross income should reasonably be taken into account in the deduction of income for support purposes. Whelan v. O'Connor.

[58] A self-employed person has the inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the other party and the court can draw conclusions and the amount of support can be established. Meade v. Meade.

[59] A party must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. Charron v. Carriere, 2016 ONSC 4719. The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the Guidelines. Smith v. Pellegrini; Maimone v. Maimone.

[60] The onus is on L.M.L. to support his motion to change child support by providing a full and complete financial picture. He has not done so. He chose to provide no evidence by way of financial records or statements, corporate tax returns, and there was no information on the number of clients, revenues, deductions etc. for his business that appears to be the only employment he pursued in 2017. He testified that because the business did not earn any money he believed he did not need to disclose any particulars of it.

[61] Further, L.M.L.'s current income is derived entirely from a salary he receives from his partner's business where he works as a receptionist. He offered no pay stubs or other documentary evidence to establish the income he receives or his prospects from this non-arm's length business. He has chosen to work for his spouse's company and acknowledged he is not looking for other employment.

[62] Finally, the respondent acknowledges that he could return to his employment at CBSA, which remains open to him, where he would earn in excess of $60,000. He testified that he was not prepared to because it would require him to work out of province. He pursued this employment, undertook the training, and accepted a specific position in Manitoba. He also acknowledged that when he accepted the offer of employment with CBSA that he was required to accept postings anywhere in Canada. He pursued this employment being fully aware that as a border services agent he would likely be required to move for work. His choice to not return to this employment which remains available to him is strongly indicative of intentional underemployment on his part.

[63] On the basis of these considerations the respondent has established on a balance of probabilities that since January 1, 2017 the applicant has been intentionally underemployed. To be clear, this finding of intentional underemployment starting in 2017 is not made on the basis of him not returning to EMDC, but rather on the factors outlined above.

[64] Once underemployment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness.

[65] On the evidence before me L.M.L. has not established any justification for his underemployment starting January 2017. While I accept that his circumstances in 2016 were beyond his control and justified him leaving his employment at EMDC and not returning, there was no medical evidence to support that he could not pursue other employment. The respondent testified to no current health issues which would preclude him from either returning to the CBSA or finding other comparable employment.

[66] L.M.L. provided no evidence on the viability of his own tanning business which he pursued, or the basis upon which he believed this was a reasonable course of employment.

[67] He provided limited evidence of any efforts to find employment and admits he has not applied for work outside his partner's business since beginning work there in February/March 2019 for half the salary he could earn with the CBSA.

[68] L.M.L. has failed to establish that his limited job search, his choice to pursue self-employment by owning a tanning salon, and to work for his partner as a receptionist at her gym are reasonable in the circumstances. He has simply presented the income he earned and takes the position that this should be the basis for the support. To justify his underemployment, which has resulted in a significant reduction in his income, L.M.L. is required to justify his choices in a reasoned, practical and compelling way. He has failed to do so.

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

[70] While a payor may take a job for less money, that decision must be reasonable, and the payor will not be excused from supporting their children by accepting employment for less money than they are capable of earning.

[71] A parent is required to act reasonably when making financial decisions that may affect the level of child support available from that parent, and will not be permitted to knowingly avoid or diminish the obligation to support their children. A parent will not be excused from their child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. L.M.L.'s current state of under employment since January 1, 2017 is the result of a series of voluntary choices on his part and he has failed to establish the reasonableness of those choices.

[72] On the basis of these considerations there is no reasonable excuse for L.M.L.'s underemployment starting January 1, 2017.

[73] The issue then becomes what is the appropriate income to impute in the circumstances. In my view L.M.L.'s previous income from CBSA is the appropriate amount of income to impute for support purposes. This is the amount he is capable of earning if he was working to his capacity based on his training and experience, the current state of his health, and the job opportunity with CBSA that remains open to him.

[74] L.M.L. could be earning this amount but for his choice to not return to the CBSA. As such, starting January 1, 2017 L.M.L.'s income for child support purposes shall be imputed at a rate of $60,000 per year.

[75] Commencing January 1, 2017 to November 30, 2017 child support shall be payable by the applicant to the respondent for two children at a rate of $892 per month.

[76] In 2018 the parties acknowledge that T.L. was not a dependent for support purposes from February 1, 2018 to August 31, 2018. A.L. remained in full-time attendance in high school during this period.

[77] Therefore from December 1, 2017 to January 31, 2018 child support shall be payable by the applicant to the respondent in the amount of $915 per month for two children. Commencing February 1, 2018 until August 30, 2018 child support shall be payable by the applicant to the respondent at a rate of $556 per month for one child.

[78] Commencing September 1, 2018 both children were in full-time attendance at school, with A.L. continuing to reside at S.L.G.'s, and T.L. residing in Kitchener during the school week.

[79] In determining the appropriate amount of child support I must consider s. 3(2) of the Guidelines which provide as follows:

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.

[80] The issue then becomes what, if any, change to guideline support is appropriate when T.L. is residing away while attending school. A.L. is also expected to reside in residence at University starting in September 2019.

[81] Although it must be done on a case by case basis, most cases are reducing significantly the guideline amount while the child is away at school. Albert v. Albert. Generally, the full amount will be ordered while at home, with a drop-down in support while away at school. Park v. Thompson, Lewi v. Lewi, Merritt v. Merritt, [1999] O.J. No. 1732 (SCJ).

[82] The Court of Appeal accepted the reasoning of Heeney J. who explained the rationale for this approach in Merritt v. Merritt, [1999] O.J. No. 1732, 98 O.T.C. 321 (S.C.J.) at para. 73 as follows:

[73] Where, however, a child is residing in another residence for the bulk of the year, it seems inappropriate to apply tables that are not designed with that living arrangement in mind. Furthermore, the table approach assumes that the recipient parent discharges her obligation by being physically in the same household and providing the family home and other amenities for the child. Where a child is at college, this assumption does not hold true. It therefore seems more appropriate to calculate the actual costs of providing for the needs of the child in his other residence, factoring in a contribution toward the cost of maintaining the family home to return to on weekends and school breaks where appropriate, and apportion that between the spouses on a Paras approach after considering the child's own ability to contribute.

[83] In Albert v. Albert, in the absence of specific evidence of the costs to maintain a room for the child at home for the full year, the court ordered the payor to pay $250 per month during these periods, on the basis that there is an obvious cost for doing this. This approach was followed in Padua v. Gordon, 2008 ONCJ 421 (Ont. C.J.) where the court ordered monthly support of $200 per month while the child was away at university, in Douglas v. Douglas, [2013] O.J. No. 2089 (Ont. C.J.), where the amount was fixed at $150 per month and in Clancy v. Hansman, 2013 ONCJ 622, it was fixed at $300 per month.

[84] However, in Jordan v. Stewart, 2013 ONSC 902 the court noted that, "the Superior Court of Justice has maintained robust support obligations even during periods when the child is residing away from the recipient parent's home: see Birch v. Birch, 2010 ONSC 2915; Armaz v. Van Erp. This continued support obligation is based on the reality that while the recipient parent will realize modest reductions in expenses when the child is away at school, maintaining a permanent home for the child results in incidental expenses that subsist even in the child's temporary absence."

[85] In Coghill v. Coghill, Justice Wright calculated the child's expenses during the eight months the child was at university, deducted the contribution the child was able to make from summer earnings, apportioned the net expenses between the parents in proportion to their respective incomes and required them to pay their respective shares directly to the child. He then calculated the table amount of the non-residential parent's obligation to pay child support for the four summer months, when the child was living with the residential parent, as if the child were a minor, based on the income imputed to the non-residential parent and required him to pay that amount to the residential parent. He then required the non-residential parent to pay one third of the table amount to the residential parent for the eight months when the child was at university to help defray that parent's costs of maintaining a home for the child to return to on holidays and during the summer. This approach was followed in Liscio v. Avram.

[86] S.L.G. did not testify to any specific costs of maintaining a residence for T.L. while he is away at school but stated that he does return home some weekends and is planning to be home during the summer in order to work to save for the next school year. It is reasonable that there would be some cost in maintaining the residence in his absence in those circumstances. As will be outlined below in the discussion of s. 7 expenses T.L. has worked hard to save money to contribute to his school, and his academic achievement has also earned him various grants. Even on the basis of the imputed income for L.M.L. of $60,000, both parties are of relatively modest means with S.L.G. continuing to earn approximately $30,000 per year and now being a single parent.

[87] In all the circumstances it would be inappropriate to apply the Guidelines as if T.L. were a minor when he attends school out of town. It is appropriate that the guideline amount of support be reduced to reflect the time that T.L. is away at school. On an income of $60,000, guideline support for 1 child is $556 per month and for 2 children is $915 per month. In the circumstances while T.L. is away at school and A.L. remains at home child-support of $706 is appropriate, which represents full guideline support for A.L. plus $150 per month for T.L.

[88] Therefore, from September 1, 2018 to April 30, 2019 child support shall be payable in the amount of $706 per month, and commencing May 1, 2019 to August 31, 2019 while both children are at home, child support shall be payable at the rate of $915 per month.

[89] Starting in September 2019 both children are planning to be away for school, with T.L. returning to College and A.L. attending University and living in residence.

[90] At that time for the same reasons as noted above child support shall be reduced to a total of $400 per month, or $200 for each child, until the school year is over and the children return home, at which point regular guideline support will resume until the children return to school. These amounts of reduced guideline support shall be payable in addition to L.M.L.'s proportional share of any section 7 expenses he is found liable for.

Section 7 Expenses

[91] S.L.G.'s claims contribution for various section 7 expenses. L.M.L. acknowledges the appropriateness of the costs of the post-secondary education for the children, but testified that S.L.G. did not consult him in advance regarding any expenses. S.L.G. acknowledged in her testimony that she had not communicated at all with L.M.L. for several years regarding issues related to the children.

[92] An order for contribution to special and extraordinary expenses under s. 7 of the Guidelines is discretionary as to both entitlement and amount: Julien Payne and Marilyn Payne, Child Support Guidelines in Canada, 2009, Irwin Law (Toronto), p. 227, 231.

[93] The framework is as follows:

1. Does the expense fall within the listed special or extraordinary expenses?

2. Is the expense necessary in relation to the child's best interests?

3. Is the expense reasonable in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation?

4. Are there any subsidies, benefits or income tax deductions or credits relating to the expense to be taken into account?

[94] The Court of Appeal in Titova v. Titov, 2012 ONCA 864 stated the following:

[23] In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party's income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary "in relation to the child's best interests" and are reasonable "in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation." If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are "extraordinary". Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.

[24] The relevant provision of the provincial Guidelines reads:

7. (1) In child support order the court may, on either spouse's request, 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 spouses and those of the child and to the family's spending pattern prior to the separation:

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

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

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

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

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

[25] The Guidelines define "extraordinary" as follows:

1.1) For the purposes of paragraphs (1)(d) and (f), the term "extraordinary expenses" means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the 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 paragraph (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 spouse requesting the amount, including the amount that the 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 or children,

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

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

[95] Unlike section 3 of the Guidelines, which presumptively provides for the table amount of child support, an order for section 7 expenses involves the exercise of judicial discretion. When exercising its discretion, the court should also consider the objectives of the Guidelines, including section 1(a), which reads as follows:

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

[96] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. Park v. Thompson.

[97] Section 7 also requires that the expense be reasonable in relation to the means of the parents and those of the child and to the family's spending pattern prior to the separation. Correia v. Correia, 2002 MBQB 172. In that case, Justice Allen set out a number of factors to be taken into account in determining the reasonableness of a s. 7 expense:

1. the combined income of the parties;

2. the fact that two households must be maintained;

3. the extent of the expense in relation to the parties' combined level of income;

4. the debt position of the parties;

5. any prospects for a decline or increase in the parties' means in the near future; and

6. whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred.

[98] Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount. Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039 (SCJ); L.H.M.K. v. B.P.K., 2012 BCSC 435.

[99] In Olaveson v. Olaveson, 2007 CarswellOnt 3975 (Sup. Ct.), the court found that the basic costs for registration and equipment commonly associated with a community hockey program should not be considered extraordinary and that Guidelines Tables are intended to cover the usual common costs of raising children, which would include the ordinary expenses for extracurricular activities. Followed in Watt v. Watt, 2011 ONSC 1279.

[100] In the case of Mistry v. Mistry, 2019 ONSC 193, the court found that if an order states that prior consent is required prior to a s. 7 expense being incurred and no such consent was sought, then the paying party loses their right to seek reimbursement, citing Dover v. Timbers, 2012 ONSC 3230, at para. 98, and Luftspring v. Luftspring, [2004] O.J. No. 1538 (Ont. C.A.), at para. 2. The court has also stated that if the requirement of consent is included in a court order, the parties are entitled to expect that their consent will be obtained citing Smith v. Angel, 2014 ONSC 6787, at para. 34. The expectation that consent be obtained in advance will avoid the accumulation of expenses that the paying spouse did not have an opportunity to plan for or consider. Lalande v. Pitre, 2017 ONSC 208, at paras. 108, 113.

[101] S.L.G. seeks contribution for various expenses which she outlined in exhibit 3, tab 11(d).

[102] Several of the claims relate to the cost of "dance extras" for A.L., including costumes, entry fees and shoes.

[103] I am not prepared to order recovery of a portion of these costs for the following reasons. After January 27, 2016, para. 13 of the Final Order governs all future s. 7 expenses. That term required that any additional section 7 expenses must be agreed upon by the parties.

[104] There is no evidence that S.L.G. sought agreement on these expenses as required by the order. S.L.G. acknowledged in her evidence that she had not communicated with L.M.L. for several years. She stated she had sent emails a few times related to certain expenses but it was left unclear in her evidence when and for which expenses. Further, the order under review which was made on consent deals specifically with the cost of dance at para. 11 in that L.M.L. was to pay, in addition to guideline support and other agreed-upon expenses, $150 per month toward A.L.'s dance lessons. It would be inappropriate to permit recovery of expenses for which she did not seek L.M.L.'s agreement on, and that she permitted to accumulate since 2016.

[105] In the circumstances no additional recovery for dance costs will be ordered, however L.M.L. will remain responsible for the $150 per month from February 1, 2016 (commencement date in the current order) to June 1 2018, when S.L.G. confirmed that A.L. stopped participating in dance.

[106] Apart from their being no evidence that S.L.G. sought L.M.L.'s agreement for any specific expense, there are a number of other expenses claimed by S.L.G. that she has not established fall within one of the categories under section 7, including the costs for high school activities, G1 driver tests, driver training, passport renewal, and clothing for the children. In my view these expenses are not properly recoverable under section 7.

[107] The costs of a child's clothing is generally covered by the basic guideline support. Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount of support. Smith v. Smith, [1997] O.J. No. 4833 (Ont. Gen. Div.), paragraphs 14 and 16; Park v. Thompson; Kase v. Bazinet, 2011 ONCJ 718.

[108] The cost of driver training has been found to be properly covered by the basic table support amount (see: D'Urzo v. D'Urzo; Zimmerman v. Doe). In my view this reasoning is equally applicable to the cost of taking the G1 drivers test.

[109] The expenses which are recoverable relate to the education and associated costs, particularly with respect to post-secondary education. L.M.L. acknowledged the appropriateness of these costs as a section 7 expense.

[110] The expenses that are recoverable and proven by S.L.G. by way of receipts include university and college application fees for the children, a computer for A.L. to use for school, the cost of a "virtual high school university course" for A.L., and T.L.'s college and living expenses during the school year.

[111] I accept the evidence of S.L.G. that the total in costs for the university and college application fees, the computer for A.L., and the virtual high school course total $3,276.50.

[112] I also accept her evidence regarding university expenses for T.L., except for the clothing expense claimed, as outlined in Exhibit 3, page 572 which detailed his tuition and other school expenses, including a camera he required as part of the media foundations program, and living expenses while attending school in Kitchener.

[113] This amount totals $13,288.45. T.L. received a grant for $6,011 and T.L. applied half of the income he earned, or $5,882.83, to these expenses. It is reasonable that T.L. apply this amount of his personal income from part-time employment to his education and other costs while living out of the home and attending school.

[114] The total of T.L.'s income and grant monies to be applied is $11,893.83, which leaves $1,394.62 to be paid by his parents. Therefore the total amount of section 7 claims is $4,671.12. Given the children's academic abilities and plans these expenses are both necessary and reasonable, even modest, in relation to the incomes of the parties. On the basis of the incomes of the parties as I have found them they have the necessary means to contribute to the educational expenses of their children.

[115] As all these particular expenses were incurred after January 1, 2017 the proportional share between the parents shall be 67% to L.M.L. based on $60,000 of imputed income, and 33% to S.L.G. based on her annual income of approximately $30,000.

[116] As such, up to April 30, 2019 the arrears of section 7 expenses owed by L.M.L. is $3,129.65 (or 67% of $4,671.12).

[117] Going forward the section 7 expenses for the children's post-secondary education that are not covered by bursaries or grants and ½ the children's income from their employment shall be shared between the parties with 67% being paid by L.M.L. and 33% being paid by S.L.G.. Any other section 7 expenses must be agreed upon in advance by the parties.

[118] While A.L. is planning to attend University and has accepted an offer to start in September 2019, the total of the costs is unclear at this time. She is likely to also receive grants and bursaries given her strong academic performance, and she intends to work as much is possible over the summer to save money.

[119] It would be appropriate for the parties to share the remaining expenses for A.L.'s schooling once her contribution has been deducted in a similar manner as outlined herein for T.L. The parties with the assistance of counsel are encouraged to determine and agree on these amounts once the particulars have become clear without the need to incur further legal costs by returning this matter to court.

Final Order

[120] On the basis of all the considerations outlined herein, there shall be a final order as follows:

1. Child support as outlined in the final order of Justice Pockele dated January 27, 2016 shall be varied by deleting paragraph 2 therein and for an order as follows:

a. Commencing February 1, 2016 to December 31, 2016 child support shall be payable by the applicant to the respondent in the amount of $426 per month for 2 children based on an income of $27,893.10.

b. Commencing January 1, 2017 income shall be imputed on L.M.L. in the amount of $60,000 per annum.

c. Commencing January 1, 2017 to November 30, 2017 child support shall be payable by the applicant to the respondent for 2 children at a rate of $892 per month based on an annual income of $60,000.

d. Commencing December 1, 2017 to January 31, 2018 child support shall be payable by the applicant to the respondent for 2 children in the amount of $915 based on an annual income of $60,000.

e. Commencing February 1, 2018 to August 30, 2018 child support shall be payable by the applicant to the respondent at a rate of $556 per month for 1 child based on an annual income of $60,000.

f. Commencing September 1, 2018 to April 30, 2019 child support for 2 children shall be payable at the reduced rate of $706 per month, and commencing May 1, 2019 to August 31, 2019 while both children are at home, child support shall be payable at the rate of $915 per month based on an annual income of $60,000.

g. Commencing September 1, 2019 when both children are residing away at school a reduced amount of child support for both children shall be payable in the amount of $400 per month (or $200 per child), until such time as the children return home for the summer or otherwise finish their program.

h. Paragraph 10 of the order of January 27, 2016 fixing arrears and repayment is not varied by this order.

i. Going forward the section 7 expenses for the children's post-secondary education that are not covered by bursaries or grants and ½ the children's income from their employment, shall be shared between the parties with 67% being paid by L.M.L. and 33% being paid by S.L.G.. Any other section 7 expenses must be agreed upon in advance by the parties.

j. As of April 30, 2019 arrears in section 7 expenses shall be fixed in the amount of $3,129.65 and be repayable at a rate of $200 per month.

k. Paragraph 11 of the order of January 27, 2016 regarding L.M.L.'s contribution to A.L.'s dance shall terminate effective June 1, 2018, and he shall remain responsible for the $150 per month as outlined in that order until that date.

The parties are encouraged to agree upon costs in this matter. In the event that the parties do not agree, any party seeking costs will file written submissions of no more than 3 pages excluding attachments by no later than May 17, 2019, with the responding party filing a written response of no more than 3 pages excluding attachments by no later than May 31, 2019. If no written submissions are filed by the deadline, the parties will be deemed to have resolved the matter of costs.

Released: May 2, 2019

Signed: "Justice S. E. J. Paull"