ONTARIO COURT OF JUSTICE

CITATION: Walkes v. Walkes, 2021 ONCJ 587

DATE: 2021 11 03

COURT FILE No.: Brampton 18/780

BETWEEN:

ASHLEY ANN WALKES

Applicant

— AND —

JAMIE LEROY WALKES

Respondent

Before Justice Philip J. Clay

Heard on October 18 and 19, 2021

Reasons for Judgment released on November 3, 2021

Mr. A. Wilford................................................................................. counsel for the Applicant

Mr. D. McClean......................................................................... counsel for the Respondent

CLAY J.:

OVERVIEW

[1] This parties in this matter separated in October 2016. They have four children. They had no court order or agreement and their communication was very poor. The Applicant mother brought an Application in August 2018 for what was then known as custody, and for child support, both table support and s.7 expenses, prospectively and retroactively.

[2] The Respondent father's failure to make disclosure, and the questions that arose out of the disclosure when provided, delayed the resolution of this matter. By the time of trial, the matter was almost exclusively about child support.

[3] The parties signed final Minutes of Settlement ("M of S") on the parenting issues after the completion of evidence in this matter. Counsel advised at the opening of trial that there was an agreement that decision making responsibility for the minor children Janoy and Niyah shall be with the Applicant mother and they shall continue to primarily reside with her. The eldest child Reshaun is attending a U.S. university on a soccer scholarship. The child Daunte left high school in December 2020.

[4] At the opening of trial counsel advised that the parties had completed, but not signed the M of S on the parenting issues. The only parenting issue remaining was whether the Respondent father's girlfriend Bonny could be alone with the children. The father says he has been in a 6-year relationship with Bonny and their respective children are together during his parenting time. As noted, after the trial the parties filed M of S for a final parenting order, but as it did not specifically address the outstanding issue and I will address it based upon the evidence at trial.

THE EVIDENCE

[5] There was an order at the trial management conference that the parties would each file one trial affidavit and be able to update that evidence by some oral evidence. They would then be cross-examined. The mother filed her affidavit on September 15, 2021 and the father filed his affidavit on October 12, 2021.

[6] The parties filed a joint document brief.

PARENTING ISSUE

[7] The mother stated that she has never met the father's girlfriend Bonny, but the father told her in 2016 that Bonny had her children taken away from her due to a child protection proceeding. The mother said that the father implied that this was because Bonny had a drug addiction. The mother's understanding from what the children have stated is that the father's relationship with Bonny has been on again and off again. She thought that Bonny might be living with the father in the basement apartment that he has at his parent's home.

[8] The mother had no specific evidence on any issue concerning Bonny during the parenting time that the father has had since 2016.

[9] The father stated that he had been in a relationship with Bonny since 2016. He denied that he had any knowledge of Bonny having a child protection history with her children. He said that she had three children who were 22, 21 and 15 respectively. The elder two children lived independently and the 15-year old lived with his father and had parenting time with his mother. The father stated that he and Bonny tried to line up their weekend parenting time so that he would have Janoy and Niyah on the same weekends that Bonny would have her child. He said that some weekends they would stay at Bonny's home in Orillia and some weekends they would stay at the father's basement apartment in his parent's home.

[10] The father said that the children enjoyed each other's company. There were times that Bonny would take Niyah shopping, or to get her hair done. He did not accompany them on this "girl time.' He said that most of the time he and Bonny and their kids were together. The father said that there was no evidence that would support an order that Bonny not be alone with his children.

Decision on parenting issue

[11] After the evidence was heard on this issue the parties filed Minutes of Settlement dated October 19, 2021. The parties then filed written submissions on October 22. The mother's submission made no reference to the parenting issue. The father's submission did refer to the Minutes of Settlement and the evidence on the outstanding parenting issue.

[12] As the mother raised the issue of Bonny being with her children, I can only assume that she felt that the Minutes of Settlement filed sufficiently addressed the issue. I note that prior to the trial the draft Minutes provided in paragraph 3 that;

3. Jamie Leroy Walkes shall be the only person to care for the children…

[13] The word "only" was struck out in the draft and the word "primary" was written in on the final Minutes submitted to the court.

[14] Furthermore, the draft version of paragraph 4 had stated:

4. Jamie Leroy Walkes shall be solely responsible for access pick up…

[15] The word "solely" was struck out in the draft and the word "primary" was written in on the final Minutes submitted to the court.

[16] I conclude from these changes that the mother no longer opposes Bonny being around her children provided that the father is the primary care giver during his parenting time, and he is the primary one to pick up the children. The mother had no objection to the father's family picking up for parenting time, but the father said he would always do it unless he was caught late at work. While the wording might not specifically exclude Bonny picking up it would be wise for the father to only ask her to do so if there was no other option available.

[17] I find that the final wording of the Minutes of Settlement is consistent with the evidence and the children's best interest. The father has to be primarily responsible for the children on his parenting time. He should not pick the children up for weekend time if he is not going to be present for that time. That said, the children have known Bonny for some time and there is no specific evidence of any concerns if she was to be left alone with the children. Given that the father should be present for his parenting time I would expect that the time that Bonny is with the children in the future should be similar to the father's evidences as to what it has been in the past-Bonny spending "girl time" with Niyah (8 years old) when the father is spending "guy time" with his son Janoy (14) and Bonny's 15 year old son.

[18] In these circumstances I do not think I need to make any additional order and the Minutes of Settlement wording will be incorporated into a final order.

CHILD SUPPORT

ISSUES

[19] The child support issues to be resolved in this matter are the following;

(1) What is the income of the father?

(2) Should additional income be imputed to the father for undisclosed income or unverified deposits to his bank account?

(3) Does the father owe retroactive support for the period prior to the temporary order of November 22, 2018?

(4) Was table support child support underpaid since the date of the temporary order and if so by how much?

(5) Should there be an order for s.7 expenses for each child?

(6) What are each child's reasonable s.7 expenses?

(7) Does the father owe retroactive s.7 expenses?

THE LAW

[20] This matter concerns child support under the Child Support Guidelines. There are a number of sections of the Guidelines that address issues raised in this matter. There are four children who are entitled to be supported by their parents. The children primarily lived with the mother, so the issue is with respect to the support to be paid by the father. The court must begin with the presumptive rule to determine eligibility for child support and the criteria that determine the amount to be paid.

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. O. Reg. 391/97, s. 3 (1).

Child the age of majority or over

(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.

[21] As noted above, there is to be support paid pursuant to the applicable table in section 3 (a), and there is support under s.7.

[22] This case involved an extensive claim for s.7 expenses, so I have set out below the sub-sections of s.7 that are relevant to this matter.

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. O. Reg. 391/97, s. 7 (1); O. Reg. 446/01, s. 2; O. Reg. 32/21, s. 2.

[23] There were post-secondary expenses for the eldest child Reshaun, but most of the claims in this matter fall under the definition of "extraordinary expenses." That term is defined in the Guidelines.

(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. O. Reg. 102/06, s. 1.

Sharing of expense

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

[24] I have set out the sections as they appear in the Guidelines, but the first step in determining the amount of child support both under s. 3 and s.7 is to determine the income of the non-residential or payor parent.

[25] The father finally produced all of his Notices of Assessment, but the mother took the position that the father became intentionally underemployed just prior to the separation and that he had a large amount of unreported income. The mother asked the court to impute an income to the father. I will set out the sub-sections of s.19 of the Guidelines that are relevant to this issue.

Imputing income

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

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

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

[26] The issue of under-employment was considered by the Ontario Court of Appeal in Drygala v. Pauli 200261 O.R. (3d) 711. The court stated:

Application of Section 19(1)(a) of the Guidelines

[23] In my view, in applying this provision, the trial judge was required to consider the following three questions.

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

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

3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

Intentional Under-Employment or Unemployment

[24] The meaning of the word "intentionally" in s. 19(1)(a) has received inconsistent application in the courts. On the one hand, there are the so-called bad faith cases in which the word "intentionally" has been interpreted as meaning a deliberate course of conduct for the purpose of undermining or avoiding the parent's support obligation …

[25] On the other hand, there are a number of conflicting cases in which the courts have held that there is no need to find a specific intent to evade child support obligations before income can be imputed….

[26] In my view, the latter approach is correct.

[28] Read in context and given its ordinary meaning, "intentionally" means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. The word "intentionally" makes it clear that the section does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work.

Approach

[27] I will begin my review of the child support issues with the determination of the father's income, then move on to the determination of the table child support and retroactive table child support issues. Finally, I will review the s.7 expense issue.

[28] I will refer to the relevant evidence in sub-categories and at the end of each area of evidence I will provide my comments on the credibility of the evidence.

Father's income

[29] The mother said that prior to the separation the father worked as a unionized construction worker and did metal rebar work. She said that he also collected E.I. in the winter months and helped his brother in his cleaning business and was paid for that work. She did not know what he earned during their relationship. Neither party disclosed their actual income to the other until this court proceeding which began in August 2018.

[30] The mother noted the father's income in the years 2013-2015 was significantly higher than it was in the years 2016-2018. The mother took the position that the father was deliberately underemployed. She said that there was no reason why the father's construction income should be so much less in the year of separation than it was in the year before separation. She noted that the father finally returned to pre-separation income levels in 2020.

[31] She noted from the disclosure received that the father's Notices of Assessment showed the following;

• 2013 $69,249

• 2014 $86,934

• 2015 $78,095

• 2016 $39,176

• 2017 $39,866

• 2018 $58,541

• 2019 $56,300

• 2020 $79,605

[32] The mother said that as the father had earned money working for his brother's cleaning company before the separation that he likely did the same in 2016 and 2017 when his income from his construction job was much lower. The father said that the only year that he received money working for his brother was 2018 and he declared the $3,000 that he earned on his income tax return. As the Notice of Assessment ordered from the CRA did not break down employment earnings, other earnings and E.I. there is no written corroboration of this before the court.

[33] The father said that he worked for the Local 721 of the Ironworkers union and they did commercial real estate only. He said that the significant drop in his income in the year of separation and the year immediately after was not related to the separation or any attempt to decrease his employment income. He said that the availability of commercial construction work was not necessarily tied to the boom in residential real estate. He said that work was dependent upon many factors including the weather.

[34] The father admitted that he usually worked from about March to November and received E.I. in the late fall and winter. He said it made no sense for him to look for other work when he was laid off. He could not work residential construction with his union. He earned between $41 and $44 an hour during the relevant periods doing rebar work, but he was not qualified for any other work that would pay much more than minimum wage. He said he would have to declare such work to E.I. and lose benefits that were based on a higher hourly wage.

Comment

[35] The father said that when he worked for his brother's cleaning company pre-separation and when he did so again in 2018, he did that work after he had been called back to construction work and not during the time he was eligible for E.I. This evidence conflicted with the mother's evidence on the pre-separation work.

[36] The father could not really explain why he helped his brother with his business in 2016 and 2017 without receiving any compensation for doing so when he had been paid for working pre-separation and in 2018. He said that in 2016 and 2017 he did not really work for his brother, he just helped him as will be set out below.

Father's financial statements

[37] The father filed a number of financial statements in this proceeding. In all of them there was at least a $20,000 per year difference in the amount of the father's income and the amount of his expenses. The father said he borrowed money to make up the difference. He mostly borrowed from his mother Madeline Walkes, but he said that he also borrowed money from others. The father had some credit card debt on his financial statement filed in April 2019, and on his last financial statement dated September 21, 2021.

[38] The father said that he did not make payments on his credit card debt. There appeared to be two reasons for this. One was that he resented paying debt that had accumulated during the marriage or that had accumulated when he borrowed money to pay for child support/mortgage payments post-separation.

[39] The second reason was that he felt that credit card companies did not have a problem with card holders not paying. He said if you did not pay your credit card debt interest will be added and the credit card company will see the debt increase. He then said that the companies would sell this higher debt and even if they received a discounted price they were not out of pocket. In the father's eyes the only negative consequence to not paying debt to companies was that your credit rating would be lowered. He said that was not really a problem as a person with a job could always borrow money even if the interest rates were a little higher.

[40] The father's debt did change between his financial statements of May 20, 2019 and September 21, 2021. In 2019 he had $18,000 in debt (when the monies allegedly owed to his mother are subtracted). In 2021 his consumer debt had increased to $25,678. In both financial statements he said he was making no monthly payments toward his debt. The debt owed to Capital One Mastercard in 2019 was not there in 2021. The father claimed that Capital One must have sold it off and he was effectively released from it. This seems unlikely given that the father had new debt in 2021 including to CitiFinancial ($6,778) that was not listed on his 2019 statement.

[41] The father seemed quite proud of himself when he described how he was able to access money to meet his living expenses without having to repay that money. This pride in being able to, in effect, beat the system is a theme in the father's evidence.

[42] The father said that while increased consumer debt helped, the main reason that he was able to meet his expenses due to what he said was a significant drop in income was the "loans" that he received from his mother (the paternal grandmother -"PGM") over the years. The father's finances were very intermingled with those of the PGM and his brother. It is alleged by the mother that his brother provided him with undisclosed income and that will be addressed below. It was also alleged by the mother that the PGM received the father's one-half share of the proceeds of sale of the matrimonial home. She said that this money was put into a joint account that the PGM had with the father so it could be accessed by him at any time.

[43] The father had three bank accounts. An RBC account that he used for some modest purchases. An account in his name alone at the CIBC which was his main operating account and a joint account with his mother. The joint account was opened on March 1, 2018. On March 9 it received a deposit of $98,294.75.

The money from the home

[44] The evidence was that prior to the separation in 2016 the parties resided in a house at 34 Naperton Drive in Brampton. When they purchased the house the father's credit rating was such that he was not permitted to go on title or on the mortgage. The PGM agreed to co-sign and the house was registered in the joint names of the mother and the PGM. The court received as an exhibit an Acknowledgement signed by the mother and the PGM on August 13, 2014 that read;

We, the undersigned acknowledge that I Madeline Walker have no interest in the property located at 34 Naperton Drive Brampton Ontario L6B 075. I am strictly on the mortgage for financing purposes. I will not be held responsible for any and all fees associated with the matrimonial property.

[45] This Acknowledgement could not be located prior to the sale of the home on March 9, 2018. The real estate lawyer divided the net funds equally between the mother and the PGM with each of them receiving $98,294.75. The acknowledgement was located after the document briefs were filed.

[46] There are no property issues before this court as there is no jurisdiction in the Ontario Court of Justice to make decisions regarding property. The house sale information is only relevant to the father's credibility and whether the father had access to money to pay for table child support or s.7 expenses.

[47] The father alleged that the money in the joint account was his mother's money and he could not spend it without her express permission. He said it was put in a joint account as opposed to an account in the PGM's name alone because his mother was elderly and it was arranged between them that he would access the money from the bank when she wanted to spend it. He said that if he received money from the PGM it was a loan that needed to be repaid.

[48] On March 19, 2018 there was a withdrawal of money from the joint account of $15,000. The father said that the PGM authorized him to withdraw this amount and he gave $5,000 to the mother (presumably for child support) and spent the other $10,000 on "helping" the PGM with repairs maintenance etc. on the home where he lived with his parents. When he was unable to provide any proof of expenditures on repairs or maintenance the father pointed to the monies expended at grocery stores and said that he spent money for the entire family in order that they could host family barbeques and other events.

[49] The father said that there are no documents in his possession that set out the monies that he owed his mother. He said that she will keep track of it. While there were some withdrawals from his main CIBC account that the father said were payments to his mother there was no written proof of any loans and no written proof that the PGM was paid money or expected to receive payment.

[50] The father said that he paid his parents rent of $800 a month for the basement apartment in their home. There was no proof of any payment.

Comment

[51] The father's explanation of the loans from his mother is simply not credible. The PGM signed an Acknowledgement that she was a co-signer only and had no interest in the home. There is no evidence that the PGM put money into the home. The money was paid out to the joint owners because there was no proof provided to the real estate solicitor that the PGM was not a beneficial owner. The money went into a joint account that I find was completely controlled by the father not the PGM.

[52] There is no evidence that the monies that came out of this joint account or the monies that might have come to the father from the PGM were loans. There is no documentation of a loan. There is no evidence of a payment.

[53] The evidence is clear that the father tried to hide the fact that he had easy access to over $98,000 of his own capital to provide for the needs of his children. Worse yet he asserted in his pleadings that his mother received her one half of the matrimonial home and he had a claim against the mother to equally divide her one-half share. Such a claim cannot proceed in this court so I cannot dismiss it, but I have no doubt that a judge with jurisdiction would easily find that the father has already received his share of the house proceeds.

The brother's business

[54] The father said that his brother Bryant had a cleaning services business. This business did both commercial and residential cleaning. The father said in the pre-separation years he helped his brother with the business by occasionally doing some work. He said that sometimes he was paid for that work and sometimes he was not.

[55] In the course of this litigation the father was ordered to provide his bank statements and he attended for Questioning on July 4, 2019. The mother's counsel noted that there were numerous unexplained deposits to the father's main CIBC account. He was asked about those deposits and gave undertakings to provide information. The mother's counsel was very clear with the father that if he could not satisfactorily explain all deposits that the mother's position is that the money should be considered as income available for child support.

[56] There were a number of large deposits to the father's account that did not identify the source of the deposit. The father was cross-examined extensively on the source of the deposits. It is not necessary in these reasons to review his explanation for each one. The mother's counsel took the position that the larger unidentified deposits were monies paid to the father by his brother for work in the cleaning services business. The father denied this. He said he had not been paid for working for his brother after the separation except for 2018 when he alleged that he was paid $3,000 from the cleaning services business and he declared it on his tax return. The father was specifically asked about why he did not work for his brother in the low construction income years of 2016 and 2017. He said that he did not like doing cleaning work and it was not his trade. Furthermore, the father said that he did not want to accept work when he was eligible for E.I.

[57] The father's explanation for the monies that came from his brother's business detailed what can only be described as a scheme to prevent the FRO from collecting child support arrears from his brother. The father said that Bryant owed a lot of arrears to the FRO for children who were now adults. The FRO had taken his driver's license and garnished his bank account. The father said that his brother was not able to obtain a new bank account because of the outstanding arrears and enforcement steps. Bryant approached the father for help.

[58] The father said that he agreed to allow his brother to use his personal bank account at CIBC for the deposit of all monies paid to Bryant's cleaning business. The father said that Bryant, or his son Noah, would have the cleaning service clients pay by either cash or cheque. The cheques would be made out to the father and the father would deposit them to his bank account. The father said that his account was simply holding his brother's money for him. When his brother needed the money he would ask the father and he would take out cash withdrawals and provide the money to him (he could not send his brother e-transfers as he claimed that his brother did not have a bank account).

[59] When the mother's counsel asked the father to match up the deposits with the withdrawals he could not do so. He said this was because his brother did not want to carry around large amounts of cash so he would ask the father for cash as and when he needed it. When it was noted that the cash withdrawals did not match the deposits the father said that some times he purchased items on behalf of his brother and that expenditure of cash was in effect his brother using the money that was deposited to the father's account.

[60] At the time of the Questioning the father said that he created invoices to the brother's company so that when the money was transferred out to the brother there would be a paper record or accounting. The father produced some invoices. The invoices did not match all of the withdrawals. The father did not rely on the invoice system in his trial affidavit. Under cross-examination he stated that he and his brother kept track of how much was owed to the brother on "scraps of paper.” The paper notes were then discarded after his brother's deposit was paid out to him in cash or accounted for by items purchased by the father on behalf of his brother.

[61] It was noted that in the late summer and early fall of 2019 there were five weeks in a row that the father deposited money he said was his brother's money. Interestingly these deposits were made after the father had been laid off from his construction job and before his E.I. claim began. The father denied that he worked for his brother during this time.

[62] The father stated that he helped his brother avoid paying child support arrears by allowing him to hide all of his money in the father's bank account. The father did not think that there was anything wrong with doing that. He said his brother's children were adults and his brother needed time to pay the FRO, so the father helped him.

[63] It is possible that the father's story is true given his own disdain for paying debts when they come due. However, it is more likely that the father was making cash deposits of his own money to his own bank account. The money might have been earned by the father by working for his brother or it might have been obtained by some other means. It does not really matter as the father has the onus upon him to prove that the money deposited to his bank account on a regular basis is not income. He has not discharged that onus.

Monies from joint account to BreakTime Solutions

[64] A review of the joint account the father had with the PGM showed that on January 14, 2019 the sum of $10,007.50,and on January 24, 2019 the sum of $54,361, were withdrawn by cheques made payable to BreakTime Solutions Inc. The father said that his mother instructed him to draw the cheques and to provide the money to his brother Bryant for his new business venture.

[65] Notwithstanding the fact that this money came out a joint account that was fully funded from the deposit of one half of the equity that was in the matrimonial home the father steadfastly maintained that this was the PGM's money. The father also said that he did not know anything about the company or his brother's plans for the money.

[66] The mother's counsel asked the father if he or his brother were involved in a vending machine business and put it to him that BreakTime Solutions Inc. was listed as such a business on the internet. The father said he did not know the nature of the business into which the joint account withdrawal was invested. He said he assumed it was a business related to the brother's cleaning business. After the cross-examination I asked the father why his September 21, 2021 Financial Statement listed his e-mail address as info@primetimevending.ca. The father said that this was not his e-mail address and he did not know anything about it. At this point his counsel clarified that earlier in this proceeding the father's brother completed an affidavit (which was not before me) that listed the said e-mail as his brother's address and it was used on the father's document in error.

Comment

[67] The father's evidence was that he and his brother Bryant were close. He claimed that he worked for his brother's cleaning business without being paid. He said he provided banking services to his brother to assist him in foiling the FRO. Given this the father's story regarding the new business is simply not credible. I find that the money invested in BreakTime Solutions Inc. from the proceeds of the father's matrimonial home was the father's money. I cannot believe the story that it was the PGM's money and he only facilitated its transfer to his brother to assist his elderly mother. I cannot believe that with all of the time that they spend together that the father would not know what BreakTime Solutions is and what it does.

[68] I find that it is most likely that the said company is beneficially owned by the father and operated by the father or his brother or both. It appears that this is a vending machine business. It also appears that it is a completely cash business. This business may account for some of the unexplained deposits to the father's account.

The nephew's involvement

[69] The father said his brother Bryant has an adult son Noah who has his own incorporated business known as HeadTurner Holdings Inc. The father said that his nephew's business was "wrapping" vehicles in plastic or other fabrics. Some of the deposits to the father's main CIBC account came from this company.

[70] The father explained that Noah helped his father Bryant by accepting cash and cheques on his behalf. Some cheques were made payable directly to the father and some were made payable to HeadTurner. The father said that Noah did not want to hold Bryant's money in his business account. He agreed to facilitate the collection of money from Bryant's customers, but once it was put in his account, he immediately transferred it to the father's account to be held for Bryant in the manner described above. The father said he never worked for HeadTurner.

Comment

[71] Once again it is possible that the father's explanation is true in the sense that he would have no hesitation in participating in a scheme to defeat his brother's ex-wife's claims. It may be that Noah has more qualms about defeating those claims (it is not clear if the ex-wife in question is Noah's mother). The other possibility is that the father had an interest in HeadTurner or was employed by HeadTurner, and that is why cheques or cash from that company were deposited to his account. The father's story lacks credibility and the deposits to his account from HeadTurner are found to be his income given that he has not discharged his onus to prove otherwise.

Other deposits to the account

[72] The father's main CIBC Account showed a number of smaller deposits typically in round numbers ranging from $40 to $100 or more. The father had initially redacted the names of the people depositing funds to his account. Following the Questioning he provided the names and his explanation of the deposits.

[73] The father said that he had a number of friends that he met at work and elsewhere that either did not have a bank account or a vehicle or both. He also said that he knew many people that had access to products at wholesale prices. The father said that the individuals named on the deposits would send him money and he would purchase items for them and often pick up those items for them because he had a car. The father said he did not have receipts for purchases because he was able to obtain products without paying the HST. He explained that he just wanted to help his friends get products at good prices. He claimed he received no compensation for doing this purchasing on their behalf.

[74] The mother's counsel then asked about certain deposits made by different friends. He looked at the November 2017 statement from the father's main CIBC account. A woman named Rose made the following deposits by e-transfer:

• November 1- $100

• November 2- $180

$100

• November 6- $165

$80

• November 8- $150

$70

• November 9- $50

• November 14- $150

• November 20- $250

$100

$100

• November 21- $100

• November 23- $50

• November 27- $100

• November 30- $270

$100

[75] Mr. Wilford asked why almost all of the deposits were for round numbers and some of them were made on the same day. Over a relatively short period of time in November and December 2017 Rose deposited $2,140 to the father's account in numerous small deposits. (In the course of a 3-month period she deposited $4,398) The father said he recalled that Rose asked him to buy new tires for her SUV. When asked about the total cost and the length of time it took to get the tires the father said they were about $800 a tire and Rose gave him money when she had it.

[76] The mother said that the father told her back in 2016 that Rose was a drug addict. Mr. Wilford suggested that these frequent purchases by Rose and others were for crack cocaine supplied by the father. The father denied that he was selling drugs. He then said that the deposits that were between $50 and $150 or so in round numbers could also be for joint lottery or sports betting tickets that he organized at work.

[77] The father's affidavit set out his present knowledge of these people's whereabouts and he had lost track of some of them. It was apparent that these people were not close friends from whom a person might pick up the occasional product when doing their own shopping.

Comment

[78] The father would have the court believe that he drove to stores, purchased items at a discount for cash without payment of HST and then drove the purchased items to some of these people who he does not know all that well. I do not believe the father when he stated that the frequent transfers of money from Rose and other friends were for items that he purchased on their behalf without any remuneration to himself.

[79] I cannot conclusively state that the father was selling drugs based on the evidence before me. However, I can state that there is no reason for the father to accept once daily, sometimes twice daily, deposits of money from Rose a known drug addict.

[80] Without any credible explanation for the deposits, I conclude that they must be income. It appears that the father sold something to these people and that he had some reason to initially redact their names. He may have had to purchase what he sold so the deposits might be gross income as opposed to net income. I will consider that in my imputation of the father's true income.

[81] I reject the father's evidence as being incapable of belief. I find that he was intentionally underemployed in an effort to reduce his child support obligation. Three is no other credible reason for the significant drop in his construction income between 2016 and 2020.

Imputation of income

[82] Mr. McClean simply took the position that the father's evidence explained all of the deposits to his account so there is no additional income. He said that the father's income should be the amount found by the Canada Revenue Agency and set out in his Notices of Assessment.

Construction and E.I. income

[83] Mr. Wilford took the position that the father was intentionally under employed from 2016 to 2020. He said that there was no reason for the father to have less work available to him in those years. I find that there was no support for the father's assertions that his income could have dropped from $86,000 in 2014 to $38,919 in 2016 just because of weather or lack of work for other reasons. The fact that his income returned to $79,605 in 2020, a pandemic year, further suggests that the father simply tanked his income in the years when the mother was seeking child support. I note that the Questioning that took place on July 4, 2019 focused on the credibility of the father's claims. Interestingly his construction income increased dramatically the next year.

[84] The mother's position was that the court could address this issue of reduced income by averaging the father's income in 2013, 2014 and 2015 and using that average for the years 2016, 2017, and 2018. In the absence of any other way to determine what the father could have earned in construction work in those years I find it to be reasonable to use an average income. The average income earned in 2013, 2014 and 2015 is $78,092. As a check against the reasonableness of averaging three years income I note that in 2020 the father earned $79,605 which is very close to that average. Given that I will use $78,092 as the construction and E.I. income that the father could have been earned in 2016-2019 inclusive and I will base future table child support on the 2020 income as adjusted below.

Other income

[85] The more difficult issue is how much to impute for the additional income that the father clearly has from different sources. In his submissions Mr. Wilford suggested that the court should accept that the father's capital in the joint account funded a business-BreakTime Solutions Inc.- from which he generated an income. The total cheques from the joint account to BreakTime, less certification charges, was $64,353.50. Mr. Wilford rounded that done to $60,000 and said that if he loaned that amount of his money to his brother that the father should expect at least a 10% return on investment of $6,000 a year.

[86] Mr. Wilford then added that if the father did all the work and garnered all the profit, he should make $60,000 net from this business. I note that there is no support in the evidence for this estimate of profit. Mr. Wilford then said that the fact that the father avoided taxes on all this undeclared income should cause the court to gross up the income. He said that the total amount of income that should be imputed to the father from all sources is $160,000 a year.

[87] I find that the father's brazen attempt to hide his income should be censured by this court. His bad faith can be addressed in the costs submissions. At his point I need to use my best efforts to determine what the father actually earned or will earn. I can draw an adverse inference from the fact that the father clearly concealed income. He had the obligation upon him to properly explain all of the monies that were deposited to his account.

[88] I recognize that by not working in construction (with income that he could not have hid) the father had more time to work at other jobs where he could be paid in cash. I find that I cannot impute him to a reasonable full-time construction income and add all of the extra income that he made when he was not working full time.

[89] That said, there is evidence that the father always earned extra income. The mother said he worked for his brother's cleaning company in the winter months at the same time as he collected E.I. The father said that when he worked for his brother it was not during his E.I. claim period, but between construction jobs. There is some evidence that he worked for his brother in the late summer before his E.I. claim. However, I find that the father would have had no problem at all working for cash and also collecting E.I. He was proud of the way that he was able to beat the system.

[90] I find that the father is likely the beneficial owner of BreakTime Solutions Inc. and he operates the business either on his own or jointly with his brother. I find that it is likely that he earned cash from that business- probably all year. The father's dishonesty about the use of the monies withdrawn from his house proceeds means it is hard to know exactly what he earned. In giving his evidence the father presented as an intelligent man, but also as a calculating schemer. He would not have expended over $60,000 for this business without some expectation of a decent return. The father should be imputed to have an income from this business that is higher than he could earn if he simply put the money into conservative investments. I find that a proposed rate of return of 10% per year is not unreasonable so I will impute $6,000 a year from the vending machine business.

[91] I find that the father will likely continue to earn an untaxed income from his other ventures with his brother, his nephew or some of his friends who provided him with money in the past. I recognize that he will have some costs in earning this undisclosed income. so I have balanced off the net costs of obtaining the income and net benefit from not paying tax on the income.

[92] Mr. Wilford filed a chart showing deposits to the father's account from his construction work in one column and deposits from other sources in another. I noted that the E.I. was in the other deposit column. The E.I. in 2016 was $940 every alternate week. When that income is moved from the "other deposits column" that column totaled $19,676.86. ($25,316.84 less E.I. of $5,640). I appreciate that the parties did not actually physically separate until October 2016, but the evidence was that the father was already in a relationship with Bonny that year. He had an incentive to reduce his income as he approached physical separation and at that point, he would have been unaware that his bank account dealings would come under scrutiny.

[93] I am also aware that he did not yet have access to the matrimonial home proceeds and the opportunity to invest In BreakTime Solutions Inc. Therefore, the almost $20,000 in additional deposits in 2016 does not even include the income/profit he earned from this business. I note that the non-construction/E.I. deposits to his account were much higher in 2017 and 2018.

[94] I should note that the father's financial statements cannot be relied upon as they do not include significant unreported income. The father claimed to be unable to meet his expenses in every year although the deficit narrowed in 2020 from about $20,000 to about $6,000. I see from his September 21, 2021 statement that the father now owns a 2018 Lexus which he valued at $26,000. He clearly bought this luxury vehicle at a time when he claimed that his income was around $39,000, and at a time when he said that he could not pay increased child support and could not contribute to s.7 expenses

[95] I recognize that there is some evidence that could support more than a $20,000 imputation of additional income. However, if the father is going to be imputed to full time hours working in construction, he will have less time to devote to pursuit of hidden or untaxable money. The "friends" to whom he sold drugs/cheap merchandise may no longer be there. The father should spend every alternate weekend with his two younger children which means he should not be working on those weekends as he may have done in the past.

Income determination

[96] I find that in all of the circumstances of this matter it is reasonable to impute another $14,000 to the $6,000 imputed for the vending machine business. This results in a total of $20,000 of untaxed income to the father.

[97] The father's income is found to be $98,092 ($78,092 plus $20,000) in the years 2016 to 2019 inclusive. It will be found to be $99,605 ($79,605 plus $20,000) in 2020 and 2021. Child support should change with the income of the payor. If the father does not provide to the mother his Notice of Assessment by June 30 each year the child support will continue to be based upon an income of $99,605.

[98] I am concerned that the father may reduce his construction income in the future until his child support obligation is completed. To address that concern if he does provide his Notice of Assessment his construction/E.I. income will be deemed to be the greater of the amount on his Notice of Assessment or $65,000. As $20,000 will be added to that income the father will never pay child support on an income of less than $85,000 while he has dependent children.

Table child support

[99] The parties signed Minutes of Settlement on November 22, 2018 for table child support for four children and that became a court order. The father has paid the sum of $1,039 monthly since that time. The mother said the order was made without prejudice and neither party had counsel at the time. The amount paid by the father directly to the mother will be credited to the adjusted table child support in this final order.

[100] The father conceded that he is required to pay table child support for four children to June 2018 when Reshaun graduated from high school. He stated that he is required to pay child support for three children until Daunte left the mother's home in the 2018/19 year to go to high school from the home of the mother's friend. The mother disagreed but noted that child support for Daunte should be terminated in December 2020 when Daunte left high school. The father acknowledged that he has an ongoing obligation to pay to the mother table child support for the children Janoy and Niyah.

Reshaun's eligibility for table support

[101] The mother's position is that table child support should be paid for four children until August 2019 when Reshaun began his second year at a U.S. college and his scholarship then covered his residence and some meals. In the alternative she stated that table support for Reshaun could end in August 2018 when he obtained his tuition only college soccer scholarship and all of Reshaun's living expenses in the academic year 2018/19 should be considered as s.7 expenses and the parties should each pay their proportionate share.

[102] The mother has set out in a chart the monies that she paid to support Reshaun living away form her home in the academic year 2018/19. In that year she had to pay for his housing, clothing, food, telephone and travel home. She said that the father did not give her any money for Reshaun after he attended college. She conceded that he paid $1,520 directly to Reshaun.

[103] The mother stated that given the amount of Reshaun's living expenses the father would likely benefit from an order requiring him to pay table child support as opposed to contributing to food, shelter, clothing and telephone costs at the U.S. college.

[104] The father takes the position that he should not be required to pay table child support to the mother after Reshaun graduated from high school. He said he was never provided with any information about Reshaun's post-secondary path and he never received from the mother any written request to contribute to costs. He said he did not have much communication with Reshaun, but on a few occasions his son asked him for money, and he sent it

[105] It was not clear if Reshaun came home in the summer of 2019, but that appears to be the case as the mother specifically mentioned that he did not come home in the summer of 2020 when he transferred from his community college to a university and had to train with his new team. I recognize that if he was home the mother would have paid for all of his needs.

Decision regarding Reshaun

[106] I find that Reshaun should be eligible for table child support until August 2018. He lived with the mother after his high school graduation in June 2018 until he went to college in the U.S. in late August 2018. His first-year scholarship did not include residence or food costs. Reshaun had no income due to his athletic commitments. The mother paid for all of his needs when he was at college. She has accounted for all of her payments. The appropriate way to treat this matter is to consider all costs after Reshaun went to college in August 2018 as s.7 costs.

Daunte's eligibility for table child support

[107] In the 2019/2020 academic year Daunte stayed with the mother's friend Paula for three days each week and he attended school from her home. The mother said she paid Paula $100 per week for her expenses during this time. Unfortunately, Daunte broke his leg just prior to the COVID 19 lockdown. He returned to his mother's home in March 2020. Daunte did not succeed at high school and he left school in December 2020 when he was 19 years old.

[108] The mother sought table child support for Daunte until December 2020. It is her position that Daunte was primarily residing with her at all times even though he spent some mid-week time with Paula. She does not have a separate claim against the father for the monies she paid Paula. Her position is that the table child support for Daunte was partially applied to the payments that she made to Paula.

[109] The father stated that once Daunte moved in with Paula, he should not be required to pay table child support for him to the mother. He said he did not receive any information from the mother as to what she was paying Paula.

Decision regarding Daunte's eligibility

[110] I accept the mother's position. She was responsible for all of Daunte's costs while he attended high school. She made a practical decision to permit her son to reside with Paula for three days a week. The mother paid $100 a week or $433 a month to ensure that her son had a home from which to attend school during the middle of the week. It was a practical decision that appeared to be in Daunte's best interests at the time.

[111] Daunte was an adult, but he was also attending high school. I find that Daunte was a dependent entitled to be supported by both of his parents. The mother has sole discretion as to how she spends the table child support to which her children are entitled. Child support will not be terminated because she made a practical decision in her son's best interests. The mother concedes that child support should be terminated effective December 31, 2020 when Daunte left school without obtaining his diploma.

Calculation of table child support

[112] I will apply the income that I have imputed to the father to the table child support he should pay in each year. The child support tables were revised effective November 22, 2017. The earlier years should be based upon the 2011 table.

2016

• $98,092 4 children for two months 2011 table $2,160 per month= $4,320

2017

• $98,092 4 children for eleven months 2011 table at $2,160 per month= $23,760

• 4 children for one-month 2017 table at $2,250 per month= $2,250

2018

• $98,092 4 children for 8 months at $2,250 per month = 9,000

• 3 children for 4 months at $1,891 per month =$7,564

2019

• $98,092 3 children for 12 months at $1,891 per month =$22,692

2020

• $99,605 3 children for 12 months at $1,914 per month =$22,968

2021

• $99,605 2 children for 10 months 1,466 per month=14,660

[113] I will make an order that begins November 1, 2021 for $1,466 per month in table child support.

Retroactive child support

Pre-order child support

[114] The mother claimed retroactive child support from the time of separation being October 2016. She said that the parties typed up an agreement, but neither of them signed it. She said she could not recall the amount set out for table child support but did remember that the father was to pay 50% of s.7 expenses. There was no formal agreement or order for child support until the without prejudice order of November 22, 2018.

[115] The father left the matrimonial home at the time of separation. As noted above, the home was registered in the name of the mother and the paternal grandmother. The father expected that the mother would pay the full amount of the mortgage from the monies that the father provided to her and from her own income. The father's evidence was that the mortgage payment was $2,500 a month.

[116] The father said that the mother could not manage money and that is why she allowed the mortgage to go into arrears. He claimed that the paternal grandmother was required to pay money to the mortgage to avoid a power of sale. The evidence does not support that claim. The mortgage payments did fall behind, and the paternal grandmother did receive a notice from the bank. The father said that this impacted the paternal grandmother's credit rating. There was no direct evidence of that. There was clear evidence that the mortgage and accumulated interest and fees were paid out of the sale of the house on March 6, 2018.

[117] The mother said that the father forced the sale of the home in which she resided with the children by his failure to pay the proper amount of support. The father said that he overpaid, and the mother was irresponsible with money which caused her to lose the home.

[118] The evidence was that initially the father would give the mother cash each month. The parties agreed that he then switched to e-transfers. The mother said that the amounts each month varied, but it was more than $1,500 a month and generally around $1,700 per month up to the time that the house was sold in March 2018. Both parties said that in the month after the separation the father paid $1,780. There was no clear monthly accounting of the pre-Application payments provided. The father did transfer the mother $5,000 after the house sale, but neither party specifically stated that this was intended to be child support. The mother said that the father stopped paying child support a few months before she issued the Application in August 2018. The father included a chart in his trial affidavit as to the amount he said he should have paid over the years. The chart does not say what he actually paid.

[119] I am prepared to credit the father with payments of $1,750 for each month from November 2016 to and including July 2018. I do think that the father likely stopped paying after the house was sold (and the PGM credit rating was no longer at risk), but I will give him the benefit of the doubt as to the reasons why the mother received money from his share of the house sale and I will consider the $5,000 she received to be towards child support.

[120] The father included a chart in the document brief which set out the amount e-transferred to the mother in 2021 The parties withdrew from FRO at the time that the November 22, 2018 order was made. There is no dispute that the father paid the court ordered amount of $1,039 per month in table child support from December 1, 2018 on.

[121] I find that the father's failure to pay child support on his actual income, as opposed to the income listed on his Notice of Assessment, was the reason that the house had to be sold. The family was able to afford this house when both parties were working full time and the father earned around $80,000 per year. The mother said she could not work in 2017 due to her colitis condition and she lived on child support and the child tax benefit.

[122] The communication between the parties was so poor that the father claimed that he was unaware of the mother's serious medical condition. He disputed that she could not work as he noted that she was able to work full time after 2017. While there is no medical evidence before the court to support the mother's disability. I found her to be an honest and forthright witness and I accept her evidence as truthful.

[123] In any event, there does appear to be a connection between the mortgage and child support. In the period October 2016 to February 28 the father paid support of around $1,750 a month largely because he wanted to ensure the mortgage was paid and his investment in the home preserved. It was not clear from either parent's evidence when the father reduced or stopped paying child support. The mother said she began her Application in August 2018 as the father had not paid "for months." The father said that he always paid support for his children.

[124] In these circumstances I find that the father was no longer motivated to pay $1,750 which is the amount he paid when the mother was paying the mortgage. When the mortgage was paid off on the house sale, he stopped paying monthly child support which caused the Application to be issued. The father said, and the mother did not deny, that he paid $5,000 to the mother from the joint account on March 19, 2018.

Post order child support

[125] Technically any adjustment of child support after the Application was issued is not retroactive support. It is support within the context of the court proceeding. There was a without prejudice order made November 22, 2018. The very nature of such an order is that it will be adjusted once further and better income information is received. We now know that the without prejudice order was based on an artificially low income.

[126] The evidence was that the father did make the court ordered payments every month. He would have been very foolish not to do so as that order was based upon a stated income of only $43,200. The father was a unionized construction worker whose Notices of Assessments in the two years prior to the separation year of 2016 showed income of $86,034 and $78,095. The father's 2020 Notice of Assessment which shows construction work and E.I. payments only was for $79,605. Notwithstanding this, the father continued to pay the amount of support a payor earning $43,200 would pay.

[127] It is true that only three children were eligible for table child support in 2020 and just two in 2021, but the table amount on $79,605 for three children is $1,576 and for two children is $1,167 so despite his claims the father never overpaid child support. In fact, he continued to underpay child support even on the lower income he claimed to earn. There is no excuse for this as he had counsel and the table guidelines are readily available to everyone.

Decision on retroactive child support

[128] I find that the father underpaid child support beginning in October 2016 based upon his actual income in those years. The father misled the mother and ultimately this court as to his true income. Child support is the right of a child. The father effectively cheated his children by not paying the correct amount for their support. The father will be required to pay child support on the amount imputed to him each year.

Pre-order arrears

[129] As noted, I will give the father credit for paying $1,750 from November 1, 2016 to February 28, 2018. This is a total of 16 months, so the credit is $28,000. I will then give the father the benefit of the doubt in his assertion that he continued to pay some money for his children up until the Application. I accept the mother's statement that he stopped paying and that is why she brought the Application. The evidence is unclear as to the amount paid, but I will give the father credit for the $5,000 given to the mother shortly after the house sale. The total credit for child support paid prior to the court order of November 22, 2018 is $33,000.

[130] The father should have paid $4,320 + $23,760 + $2,250 + $9,000 + $7,564 (-$1,891 for December 2018) which comes to a total of $45,003. I found that the father paid $33.000 during this time so he underpaid child support in the pre-order period by $12,003.

Post-order arrears

[131] As noted above, the parties withdrew from FRO at the time the order was made so there are no objective records. However, the mother admits that the father paid $1,039 each month after the order. There are 35 months from December 1, 2018 to October 31, 2021 so the amount paid is $36,365.

[132] As noted above, the father should have paid $1,891 (for December 2018) + $22,692 + $22,968 + $14,660 which is $62,211. The net amount owed in the post-order period prior to November 1, 2021 is $25,846.

[133] The total amount of the table child support arrears is $37,849 ($12,003 + $25,846).

Section 7 expenses

[134] The mother provided a chart setting out the s.7 expenses that she had paid for all 4 children from 2016 to 2020. She had vertical columns for each child and horizontal columns for the expense incurred in each year.

[135] The mother's evidence was that the children were athletic and were involved in the same sports after the 2016 separation as they were in prior to the separation. The mother said the father was aware of their activities, and that pre-separation and on a few occasions post-separation he took them to their activities and/or and watched their activities. The mother said she was always the parent who registered the children and paid for the activities. She said that she always told the father of the registration and the amount that she paid, and she asked him to pay one half. She said with a couple of exceptions over the years the father simply ignored her.

[136] The father admitted that he was fully aware of his children's athletic activities and he said he was actively involved with them. He admitted that he had not paid for the items on the chart. He resented the fact that the mother always told him after the fact that the children were registered, and she did not provide him with invoices or receipts when she asked him to contribute. He said he would not pay without seeing the invoices and/or receipts. The father conceded that he did not make any effort to go on a website to find out the cost or ask any team or league officials for documentation.

[137] He said the mother did not provide them until after this litigation began and the invoices were made available through the discovery process. Even though he now has the receipts, the father has not paid his proportionate share.

[138] The father said that his income was significantly lower in the 2015, 2017 and 2018 years, and he could not afford s.7 costs in addition to his table child support.

[139] I will begin by determining the proportionate share of s.7 expenses that each party should pay. I will then consider each child in turn and review the evidence that relates to s.7 expenses.

Proportionate contributions

[140] The mother's income as shown by her Notice of Assessments over the years 2016 to 2020 was as follows;

• 2016- $37,926

• 2017- $26,689

• 2018- ($9,178) adjusted to $22,689 -see below

• 2019- $35,135

• 2020- $45,845

• Total adjusted income - $172,284

• Average income per year, $34,456.80

[141] The evidence was that the mother has colitis and that she did not work much in 2018. I accept the mother's evidence regarding her illness. However, the father's position is that the mother never provided any proof that she was disabled and unable to work. I find his position to be quite callous since her evidence was that she had had this debilitating illness when the father left the home in 2016.

[142] The mother's income is only relevant to the proportional sharing of child support. I do note that notwithstanding her lack of income in 2018 she continued to support her children's activities. I also note that the mother received $98,000 from the net proceeds of the matrimonial home in March 2018. I cannot criticize the mother for not working in 2018 when her illness was particularly difficult for her. That said the mother is seeking a significant amount of money from the father.

[143] If I just used $9,178 as her income the father's proportionate share would result in him paying almost all of the s.7 costs that year. I think the fairest thing to do in the circumstances is to impute to the mother an income that is the same as in 2017 which income is significantly lower than the other years. I noticed that the re-assessment of the mother's Income tax return in 2017 referred to a disability credit so it appears that her illness impacted her earnings that year also.

[144] As the s.7 expenses vary significantly year over year and in the case of college expenses blend into different years, I will average each party's income to determine their proportionate share. The mother's average adjusted income is $34,45.80.

[145] The father has been imputed to earn $98,092 from 2016-2019 and $99,605 in 2020 which averages to $98,394.60. The father must pay 74% of the outstanding s.7 costs.

Reshaun

[146] The eldest child Reshaun was a star soccer player and he received a scholarship in August 2018 to attend Lewis and Clark community college in Illinois. The mother said that the scholarship paid for his education and in the second year it also provided for his residence, but there was no money for first year housing, food or other costs. The mother said she drove Reshaun to the college in late August 2018. She said she bought him food and provided him with money for his needs. Reshaun turned 19 years of age on November 7, 2018.

[147] The father said he found out after the fact that Reshaun received his scholarship and said that he was never provided with any information about what was covered by that scholarship. He said that the mother never provided him with anything in writing about what she paid for Reshaun and never provided him with supporting documents notwithstanding his many requests. The mother said she told the father everything over the phone and he could easily have contacted his adult son if he needed proof directly from the college as all of that information went to Reshaun and not to her.

[148] Reshaun came home for Christmas in 2018 and 2019. It appears that the father paid for one half of one of those trips. He stated that he would pay for one half of the second trip, but he did not do so when Reshaun did not spend any time with him.

[149] Reshaun did not come home in the summers or 2020 or 2021 as he had to train with his soccer team. Due to his training commitments he was unable to work during the school year or in the summer. Reshaun's scholarship provided him with a residence in his second year. Reshaun returned home for Christmas in 2020 and he was required to quarantine for 14 days. He returned to college in January 2021.

[150] In August 2020 Reshaun transferred to Texas Rio Grande University. This scholarship included residence and a partial food plan for dinner each evening. Reshaun did not return home in the summer of 2021, and as he is not vaccinated, he may not come home for Christmas in 2021. Due to the pandemic and athletic rules Reshaun is eligible to attend university and play soccer for a fifth year beginning in September 2022.

[151] There was no claim for 2016. In 2017 the college application fee of $105 and his soccer team fee of $600 seem reasonable and necessary, but the two $5 costs will not be allowed.

[152] The mother said Reshaun had to pay for residence in the 2018/19 year. She admitted that the residence cost of $3,456.62 set out in the column for the 2019 year applied to the 2018/19 academic year as Reshaun had his residence included in his 2019/20 year at Lewis and Clark community college.

[153] Other s.7 items included phone bills and three e-transfers for "food and other necessities" totaling $1,700. The mother claimed the airline ticket for Reshaun's trip home in 2018. As the father paid his share of one ticket, but neither party could confirm which year that was I will assume that it was in 2019 as there is no claim for that year. In 2020 both parties said that the father agreed to pay for one-half of the ticket. The father then refused to pay when he said that Reshaun failed to visit with him during his time in Ontario. I note that there is no specific claim for the 2020 airline ticket for Christmas even though the mother gave evidence that Reshaun had to stay an extended time into January 2021 due to a COVID quarantine.

[154] The father said he had no opportunity to determine if Reshaun really required the cost of a cellphone since people can communicate free by applications or on the internet without having a phone line. He said that the mother never told him when she sent money and he also sent money to Reshaun. He admitted that he did not tell the mother this and he did not know exactly how much he sent. The mother was prepared to concede that he paid Reshaun the sum of $1,520 directly.

Decision with respect to Reshaun's s.7 expenses

[155] I find that both parents must contribute their proportional share of Reshaun's s.7 expenses. As noted above, all of Reshaun's living costs while at college or university shall be considered as s.7 expenses as of August 2018. I find that the obligation of an adult child to make a reasonable contribution to their post-secondary costs has been met in this case. Reshaun's soccer skills allowed him to obtain a scholarship that has totally covered his tuition in his first year and his tuition, residence and some food costs in every year since.

[156] With respect to the 2017 costs, I have allowed the college application fee of $105 and the soccer team costs of $560 as I find them to be necessary and reasonable.

[157] With respect to 2018, I accept that the mother paid $4,470.55. I have added to the s.7 expenses the $1,520 that the father provided. This makes the total s.7 expenses $5,990.55. After determining the proportionate share both parents will have a credit for the amount they have already contributed. There will then be an adjustment made with the father paying to the mother his current underpayment of his proportionate share.

[158] I have allowed all of the 2019 costs claimed (as noted above, the residence fee of $3,456.62 was for the 2018/19 academic year). I find that the phone bills of around $55 per month were reasonable for a student at college in another country. The total is $5,375.52 and the mother paid all of it. It will be adjusted to proportionate sharing.

[159] The chart ended with totals as of June 30, 2020. Given that the trial was not heard until October 2021 it should have been updated. As of June 2020, the mother claimed $2,660.10 for her e-transfers for food, clothing and necessities. This amount will be shared.

[160] I find that even if Reshaun is able to stay at the university for a fifth year to play soccer and complete his degree that the parental responsibility for his s.7 costs should terminate as of April 30, 2022. I recognize that many post-secondary students take 5 years to complete a four-year degree, but every case must turn on its own facts. Reshaun's plan was to completely focus on soccer with a goal to be drafted into Major League Soccer. His total focus on that goal meant that he has not had any employment. He is now 22 years old. He has two siblings who are entitled to child support and his parent's total income is around $140,000. I find that if Reshaun is not successful in being drafted after four years of college/university he should be responsible for any post-secondary costs that he will have in the 2022/23 academic year.

Section 7 arrears payment for Reshaun

Reshaun

• 2016 no claim

• 2017 $705 father's 74% share = $520.96

• 2018 $5,590.55 father's 74% share is $4,137 less $1,520 paid =$2,617

• 2019 $5,375.52 father's 74% share is $3,977.88

• 2020 $2,660.10 father's 74% share is $1,968.40

• Total of father's s.7 share for Reshaun is $9,084.24

Daunte

[161] Daunte was also an excellent soccer player. In 2016 there was a claim for $1,103 for Daunte's indoor soccer and team fees. The claim is necessary and reasonable and is allowed.

[162] The mother claimed total s.7 expenses of $3,411.33 in 2017 and $6,783.56 in 2018. All of these expenses were for soccer. They included registration fees, and the costs of attending tournaments including hotels and car rentals.

[163] The father objected to Daunte's s.7 costs for 2017 and 2018 on two grounds. Firstly, he felt that the costs did not meet the definition of necessary as related to the child's best interests and reasonable relative to the income of the parties. Secondly, he argued that some of the expenses should be subsumed within table child support.

[164] The father did not dispute the reasonableness of registration fees but did dispute the hotel and car rental fees for attending tournaments. He said he was not consulted on the choice of hotel and the need to rent a car. As a parent of elite athletes, he should have known that individual team members do not book their own accommodation as the team would stay at one hotel. However, the number of tournaments and the total costs were significant.

[165] Playing soccer at an elite level could be argued to be necessary given that it was Daunte's sole passion, Daunte clearly had talent and his brother was able to leverage his soccer skills into what turned out to be a four-year soccer scholarship. It was clear that in 2017 and 2018 Daunte, with the financial support of his mother, decided to go "all in" in his goal of pursuing a professional soccer career. The only way that this could be funded by the mother was for her to access the capital that she had from her share of the sale of the matrimonial home.

[166] I accept the mother's evidence that she verbally told the father of the monies being incurred. However, I find that there is a difference between expecting the father to contribute to the registration fees and some ancillary costs and expecting his to contribute to the costs of hotels and car rentals for a series of showcase tournaments. The former costs should be known to him given the fact that the children have always played elite sports and given that he said he was very involved with the activities pre-separation. The costs of hotels and car rentals required the payment of funds that a family of a combined income level of around $140,000 and three other children cannot reasonably afford.

[167] Daunte lived with his mother and she chose to support him with her capital in his goal of being recognized as an elite player and offered a scholarship and/or professional career. There is no evidence that the father was really consulted about this type of expenditure of funds on one of his four children. I do not find the lack of consultation to be the mother's fault. I accept her evidence that the father refused to communicate with her effectively about the children. That said though she must have had an expectation when she expended money on Daunte's soccer in 2017 and 2018 that the father would not contribute a proportionate share. She made a decision to expend this money anyway.

[168] The total costs for soccer in 2017 and 2018 were very high relative to the income of the parties. In 2017 Daunte's s.7 claims were $3,411.33. If the hotel fee and car rental for a tournament is deducted the amount is $3,153.

[169] In 2018 the total costs for soccer were $6,783.56. If the total for hotels and car rentals are deducted the net total is $4,708.51.

[170] I note that in 2016 Daunte's costs were only $1,103, in 2019 $373.10 and in 2020 $435 for basketball as Daunte have given up his soccer dream. While even the adjusted 2017 and 2018 costs are too high in the other years the s.7 costs are quite low. The total of the accepted s.7 costs for Daunte from 2016 to 2020 is $9,772.61. This is an average of $1,954.52 per year. I find that this amount of expenditure for Daunte's elite sports was necessary as it was in Daunte's best interests to encourage his passion. I also find it was reasonable given the income of the parties and their spending pattern, which included the support of elite athletic activities, prior to the separation.

[171] The father's 74% share of the adjusted s.7 costs for Daunte from 2016 to 2020 inclusive is $7,231.73

Janoy

[172] Janoy attended basketball camp in 2017 for a cost of $145. There is no claim for 2018 or 2019. The claims for 2020 are all for less than $100 per activity for a total of $218. I find that these costs which included pizza lunches should be covered by table child support.

[173] The father's 74% share of s.7 expenses for Janoy is $107.30

Niyah

[174] Other than the father's general complaint about a lack of communication and his statement that he could not afford s.7 costs there was no specific issue with Niyah's $390.98 gymnastics fee in 2017 and it will be allowed. There are no claims for 2018 and 2019. The claim for $96 for swimming in 2020 will not be allowed as it should be covered under the table child support.

[175] The father's 74% share of Niyah's s.7 costs is $289.32

Summary

[176] It should be noted that the mother did state that the father contributed a 50% share to some activities, and she did not include those activities in her chart. This may explain why there is no claim for some years for a child.

COSTS

[177] I will provide an opportunity for the Applicant to seek her costs of this proceeding. I will delay the requirement for the Respondent to file response submissions until January 31, 2022 as I am aware that he is unable to file documents with this court until at least January 22, 2022.

FINAL ORDER

(1) Order to go in accordance with Minutes of Settlement filed on the parenting issues.

(2) a) The Respondent shall pay to the Applicant for the support of the children Janoy Nixon Walkes, born […], 2007 and Niyah Destiny Walkes, born […], 2013 the sum of $1,466 per month beginning November 1, 2021, and continuing on the first day of each and every month thereafter.

b) The said support is based upon the Respondent's imputed income of $99,605.

c) The said support shall not be varied until July 1, 2022 and in that year and in each subsequent year the Respondent's income for child support purposes shall be the total income shown on his Notice of Assessment or $65,000, whichever is greater, plus the sum of $20,000 for additional income. For greater clarity the Respondent shall not pay child support upon an income of less than $85,000.

(3) The Respondent shall pay to the Applicant for the net arrears of support in the period November 1, 2016 to November 30, 2021 the sum of $37,849. These arrears include table child support for Reshaun Damon Walkes, born […], 1999 to August 31, 2018, Daunte Antoine Walkes, born […], 2001 to December 31, 2020, and arrears for the said Janoy and Niyah Walkes.

(4) 4.a) The A. shall provide to the Respondent by e-mail copies of invoices or receipts for all s.7 expenses for Reshaun, Janoy and Niyah for which she is seeking a contribution from the Respondent. Provided that the contributions for Reshaun shall terminate on April 30, 2022.

b) The Respondent shall pay his 74% proportionate share of the said expense within 30 days of receiving the invoice/receipt.

c) If the Respondent fails to pay within the said 30 days the Applicant may submit the invoice/receipt and proof of the email request to the FRO to be enforced as child support.

(5) The Respondent shall pay to the Applicant arrears of s.7 expenses in the amount of $16,712.35.

(6) Support deduction order to issue.

(7) All temporary orders are vacated.

(8) The Applicant may seek costs of this proceeding as follows;

(a) The Applicant shall serve and file her costs submission by January 14, 2022. The submissions shall be limited to 5 pages double spaced with attached Bill of Costs and any offers to settle.

(b) The Respondent shall serve and file his response submissions by January 31, 2022 limited to 5 pages double spaced.

(9) The Applicant’s counsel may take out this order without approval of a draft from the Respondent’s counsel.

Released: November 3, 2021

Signed: Justice Philip J. Clay