COURT FILE NO.: DF 534/99

DATE: 2012/03/21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Janice Patricia Szitas

Applicant

– and –

Andrew Kevin Szitas

Respondent

James Higginson, counsel for the Applicant

Linda Irvine Sapiano, counsel for the Respondent

HEARD: December 6 and 9, 2011

Judgment of the Honourable Madam Justice D.L. Chappel

INTRODUCTION

[1] The Applicant Janice Patricia Szitas (“the Applicant”) and the Respondent Andrew Kevin Szitas (“the Respondent”) are the parents of three children, namely Mitchell Szitas, born October 16, 1991 (“Mitchell”), Alexander James Szitas, born January 5, 1994 (“Alexander”) and Samantha Lauren Szitas, born November 4, 1997. This was a trial of a Motion to Change Final Order which the Respondent commenced on August 16, 2010. The Respondent requests changes to two orders relating to child support for the children. First, he seeks to change certain provisions of the order of Lafrenière, J. dated April 22, 2005 respecting payment of section 7 expenses. Second, he requests changes to the order of Pazaratz, J. dated March 12, 2008 to retroactively reduce the child support payable for the children, and to terminate his child support obligation for Mitchell effective October 31, 2009 and for Alexander and Samantha effective January 1, 2011. The Applicant requests an order requiring the Respondent to pay for a number of the children’s section 7 expenses.

[2] The issues to be decided in this case are:

1. Has the Respondent established a material change in circumstances justifying a change in the child support orders dated April 22, 2005 and March 12, 2008?

2. Did Mitchell’s entitlement to child support end as of October 31, 2009?

3. Has the Respondent made out a case for a retroactive reduction of child support for the period from January 1, 2009 until December 31, 2010, and if so, what amount of child support should he have paid over that time period?

4. Has the Respondent made out a case for a termination of child support in relation to the children Alexander and Samantha effective January 1, 2011?

5. Should any changes be made to the April 22, 2005 order to address issues relating to the parties’ respective contributions to section 7 expenses?

[3] For the reasons that follow, I have concluded that Mitchell’s entitlement to child support terminated effective October 31, 2009. I have determined that the Respondent is not entitled to a retroactive reduction of child support in relation to the period prior to the issuance of his Motion to Change Final Order in August, 2010, but I have reduced his child support obligation respecting Alexander and Samantha effective August 2010. I have dismissed the Respondent’s claim for a termination of child support respecting Alexander and Samantha. Finally, I have ordered changes to the April 22, 2005 order to address difficulties that have developed respecting payment of section 7 expenses.

HISTORY OF PREVIOUS AND CURRENT COURT PROCEEDINGS

[4] On the basis of the evidence adduced by the parties, I make the findings of fact set out below respecting the history of the court proceedings in this matter, and the events that led up to the current Motion to Change Final Order.

[5] The Applicant and Respondent were married on November 7, 1986 and separated in March 1998. The Applicant commenced Family Law proceedings following the separation, and on December 13, 2000, Genesee, J. made a final order granting the Applicant custody of the children. The order further provided that the Respondent would pay the Applicant child support in the amount of $1,475.00 per month, based on his annual income of $88,876.00.

[6] On April 22, 2005, Lafrenière, J. changed the order of Genesee, J. to increase the child support payable by the Respondent to the Applicant to $1,887.00 per month, based on the Respondent’s annual income of $120,441.72. This order also provided that the Respondent would pay for 50% of the children’s special and extraordinary expenses, on the condition that the Applicant was to provide the Respondent with written estimates and receipts for all such expenses prior to requiring a contribution from the Respondent.

[7] The March 12, 2008 order of Pazaratz, J. was made in the context of a second Motion to Change Final Order. Pursuant to that order, the Respondent’s child support obligation for the children was increased to $2,242.00 per month, based on his 2007 income of $127,206.10. The order provided that the Respondent would not be liable to the Applicant for contributions to the children’s daycare expenses.

[8] The Respondent was gainfully employed as a sales manager with Becker International Inc. (“Becker”) from 2001 until the fall of 2009. On September 24, 2009, his position with Becker was terminated due to restructuring, and he was given a six month severance package which provided for a continuance of his regular salary during that period. His severance pay terminated at the end of March 2010. However, he unilaterally decided to discontinue making his child support payments as of September 2009.

[9] Since January, 2010, the Respondent has been self employed as a sales representative for Bulk Chemicals Inc. (“Bulk Chemicals”). He states that he has been attempting to develop a sales base in Canada for Bulk Chemicals since that time, that this process has been more challenging and time consuming than he had anticipated, and that his net income from this business undertaking, after deducting business expenses, has been nil since January 2010.

[10] The Respondent has experienced numerous health issues since approximately 2005. He was diagnosed as suffering from coronary artery disease, hypertension, Adjustment Disorder with Depressed Mood, Insomnia, Anxiety and Depression prior to the March 12, 2008 order of Pazaratz, J. The Respondent underwent triple bypass surgery for his heart condition in February 2009. He was off work for approximately four months, and received short term disability benefits totalling approximately two thirds of his regular salary until his return to work.

[11] The Respondent’s decision to cease making child support payments in September 2009 caused the Family Responsibility Office to initiate enforcement measures. It suspended the Respondent’s driver’s licence in July 2010, and advised the Respondent of its intention to commence a federal licence denial Application. The Respondent initiated the current Motion to Change Final Order on August 16, 2010 in response to these enforcement measures. On August 30, 2010, he brought a Motion requesting an order suspending enforcement of support and arrears of support, which was dismissed by McLaren, J. However, on that date, an order was made refraining the Family Responsibility Office from making a licence denial application to the federal government, or from taking any other steps that would result in the Respondent’s passport being suspended. Subsequently, on October 28, 2010, an order was made on the consent of the parties reducing the Respondent’s child support payments to $395.00 per month commencing November 1, 2010 based on the Respondent’s declared annual income of $26,500.00, and requiring him to pay arrears of $5.00 per month. This is the child support order that is currently in effect.

POSITIONS OF THE PARTIES

I. THE RESPONDENT’S POSITION

[12] Counsel for the Respondent argued that there have been material changes in circumstances since the March 12, 2008 order was made. Specifically, she submitted that Mitchell’s circumstances are such that he is no longer entitled to child support, and that the Respondent’s financial situation has deteriorated significantly since March 12, 2008 due to his major health problems and the changes in his employment situation. The specifics of the relief which the Respondent seeks as a result of these changes are as follows:

1. He seeks a retroactive reduction of the child support payable for the children Mitchell, Alexander and Samantha for the period from January 1, 2009 until October 31, 2009 inclusive, to $2,132.00 per month, based on his actual 2009 income of $119,780.00. He states that his income was reduced in 2009 due to his heart surgery and the fact that he took four months off work to recuperate.

2. He requests an order terminating his obligation to pay child support for Mitchell effective October 31, 2009. The Respondent alleges that Mitchell’s entitlement to child support ended at that time for two reasons. First, he argues that Mitchell turned eighteen on October 16, 2009, that he was no longer regularly attending an educational program, and that there is no evidence indicating that he was unable to withdraw from parental control. Second, the Respondent alleges that Mitchell lost his entitlement to child support as a result of his unilateral and unjustified repudiation of his relationship with the Respondent.

3. He asks for a retroactive reduction of the child support payable for the children Alexander and Samantha for the period from November 1, 2009 until December 31, 2009 inclusive, to $1,642.00 per month, based on his actual 2009 income of $119,780.00.

4. Further, he seeks a retroactive reduction of child support payable for the children Alexander and Samantha for the period from January 1, 2010 until December 31, 2010 inclusive to $543.00 per month, based on an imputed income of $39,489.00. The Respondent’s position is that his self employment as a sales representative with Bulk Chemicals has been his only source of income since his severance terminated in March 2010. He claims a number of business expenses as against this income, and argues that his net income from this business since January 2010 has been nil. However, he is agreeable to an annual income of $7,500.00 being imputed to him in regard to his work with Bulk Chemicals, on account of a portion of the business expenses which he has claimed against income. The figure of $39,489.00 which he relies on as his annual 2010 income is based on his total severance pay of $29,292.29 from Becker for January to March, 2010, and the sum of $7,500.00, including a gross up of the latter amount by his marginal tax rate.

5. He requests a termination of his monthly child support obligation respecting the children Alexander and Samantha pursuant to the Tables under the Federal Child Support Guidelines[^1] effective January 1, 2011. He seeks this order on the basis that his total imputed income for 2011 from his ongoing self employment as a Bulk Chemicals sales representative should be only $7,500.00, grossed up for tax.

6. The Respondent argues that the above noted adjustments to his child support obligation result in an overpayment of child support to the Applicant.

7. The Respondent further requests that the existing order dated April 22, 2005 be changed to include the following more specific terms regarding contributions to section 7 expenses:

a. An order that the Respondent must approve of the expenses in advance;

b. An order that the Applicant provide the Respondent with a copy of her Income Tax Return and Notice of Assessment for the previous year in order to determine the parties’ proportionate contributions to the section 7 expenses;

c. An order that the Applicant provide the Respondent with full particulars of any and all amounts which she receives from third party insurers and from government rebates and credits or other reimbursements in relation to the section 7 expenses.

The Respondent argues that this relief is necessary due to the Applicant’s failure to comply with the terms of the April 22, 2005 order which require her to provide estimates and receipts relating to section 7 expenses before requesting a contribution from the Respondent.

8. An order that the Applicant advise the Respondent immediately if either Alexander or Samantha are no longer in full-time attendance at an educational institution, and that she provide the Respondent with copies of the children’s transcripts and attendance records twice each year if they begin attending post secondary education programs as a condition of receiving ongoing child support.

II. THE APPLICANT’S POSITION

[13] In response to the Respondent’s request for a termination of his child support obligation respecting Mitchell, the Applicant denies that Mitchell has removed himself from parental charge by unilaterally repudiating his relationship with the Respondent. Her view is that the breakdown of the relationship between Mitchell and the Respondent occurred due to the Respondent’s lack of commitment to and inappropriate interactions with Mitchell, and that the Respondent should not be able to derive benefit from his behaviour by avoiding child support. The Applicant further argues that Mitchell is unable to withdraw from parental charge because he continues to attend school, and he suffers from Depression and Anxiety which render him unable to become self sufficient at this time.

[14] With respect to the Respondent’s claim for a retroactive reduction of child support, counsel for the Applicant submitted that the Respondent has either been untruthful about his income or has been deliberately underemployed. With respect to the business expenses which the Respondent seeks to deduct from his self employment income, the Applicant’s position is that these expenses are unreasonable having regard for the minimal income which the Respondent has derived from his work on behalf of Bulk Chemicals, and that the total amount of these expenses should be imputed back to the Respondent as income. The Applicant acknowledges that there have been changes in the Respondent’s circumstances which have rendered it difficult for him to sustain his previous level of income. However, her position is that the Respondent should be able to earn an income of at least $80,000.00. She argues that the Respondent is not entitled to a retroactive reduction of child support as far back as October 2009, and seeks an order that the Respondent pay at minimum child support for all three children based on an imputed income of $80,000.00 as of January 2010. In addition, she is requesting an order requiring the Respondent to pay for a number of the children’s section 7 expenses pursuant to the terms of the order dated April 22, 2005.

THE LEGISLATIVE FRAMEWORK

[15] The parties agree that the applicable legislation in this case is the Divorce Act[^2] (“the Act”). Section 15.1 of the Act stipulates that a court may on application by either or both spouses make an order requiring a spouse to pay for the support of any or all “children of the marriage.” The definition of “child of the marriage” is set out in section 2 of the Act, which provides as follows:

“child of the marriage”

“child of the marriage” means a child of two spouses or former spouses who, at the material time,

1. is under the age of majority and who has not withdrawn from their charge, or

2. is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life

[16] The issue of entitlement to child support must be addressed both on initial child support applications and in variation proceedings.[^3]

[17] Section 15.1(4) of the Act provides that in deciding a child support application, the court may make an order for a definite or indefinite period, or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

[18] Section 17 of the Act outlines the principles that apply on an application to change an existing child support order. Section 17(1) directs that a court may make an order “varying, rescinding or suspending, prospectively or retroactively” a support order or any provision of the order. Before varying a child support order, the court must satisfy itself that there has been a change of circumstances as provided for in the Guidelines since the making of the existing order.[^4] Section 14 of the Guidelines provides that where the amount of child support set out in the order includes a determination made in accordance with the Tables under the Guidelines, any change in circumstances that would result in a different child support order or any provision thereof constitutes a change that gives rise to the making of a variation order. Accordingly, a change in the payor spouse’s income, or evidence that the child is no longer a “child of the marriage” as set out in section 2 of the Act would satisfy the threshold test of whether there has been a change in circumstances since the previous order was made.

[19] In making a variation order under the Act, the court is presumptively required to do so in accordance with the Guidelines.[^5] There are two exceptions to this rule set out in section 17. First, section 17(6.2) allows for a deviation from the Guidelines where special provisions in an order or written agreement are in place which directly or indirectly benefit the child, or special provisions have otherwise been made for the benefit of the child, and the application of the Guidelines would result in an amount of child support that is inequitable given those special provisions. The second exception is outlined in section 17(6.4), in relation to consent orders, where the court is satisfied that the terms of the consent order set out reasonable arrangements for the support of the child.

[20] The starting point for the determination of the amount of child support under the Guidelines is section 3, which establishes the following presumptive rules respecting the amount of child support, depending on whether the child in question is under or over the age of majority:

Presumptive rule

3. (1) Unless otherwise provided under these Guidelines, the amount of a child support order 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 spouse against whom the order is sought; and

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

Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order 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 spouse to contribute to the support of the child.

[21] Section 3(1) refers to section 7, which deals with special and extraordinary expenses as follows:

Special or extraordinary expenses

7. (1) In a 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 $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.

[22] The phrase “extraordinary expenses” is defined in section 7(1.1) of the Guidelines as follows:

7(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.

[23] Section 7(2) of the Guidelines provides that the guiding principle in determining the amount of an expense set out in section 7(1) is that it is shared by the parents in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. In determining the amount of an expense referred to in section 7(1), the court must also pursuant to section 7(3) take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit.

[24] The object of the child support provisions set out in the Act and the Guidelines is to ensure as reasonably as possible that children are not disadvantaged by the separation of their parents, by providing fair and predictable standards of support, facilitating the calculation of support, and rendering the legal process for addressing child support issues more efficient.[^6] These objectives are articulated in section 1 of the Guidelines as follows:

1. The objectives of these Guidelines are

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

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

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

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

[25] These objectives must be read in conjunction with the important point which the Supreme Court of Canada emphasized in the case of D.B.S.[^7] that ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it. To that end, the Supreme Court sent a clear message that any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.

ISSUE #1: HAS THE RESPONDENT ESTABLISHED A CHANGE IN CIRCUMSTANCES?

I. OVERVIEW

[26] In ascertaining whether a change in circumstances has occurred such as to justify 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.”[^8] 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.[^9]

[27] The Respondent alleges that there have been two significant changes in circumstances that provide a basis for a change in child support. First, he argues that the child Mitchell turned eighteen years of age on October 16, 2009, and that his circumstances have changed such that he is no longer entitled to child support. Second, he states that he has experienced a significant decrease in his income since 2009 due to major health issues which have impacted on his ability to work and the loss of his employment at Becker in September 2009. For the reasons set out below, I find that the Respondent has established a change in circumstances on both of these grounds.

II. MITCHELL’S ENTITLEMENT TO CHILD SUPPORT

A. The Law

1. General Principles

[28] As indicated above, entitlement to child support for a child who is eighteen years of age or older depends on a finding that the child remains under the charge of a parent, and is unable because of “illness, disability or other cause” to withdraw from the parent’s charge or to obtain the necessities of life. The analysis of whether a child is unable to withdraw from a parent’s “charge” focuses on whether the child remains financially dependent on the parent.[^10] The onus is on the party claiming ongoing entitlement to support to establish that the child is still a “child of the marriage.”[^11]

2. Unilateral Repudiation of the Parent-Child Relationship by the Child

[29] The Respondent alleges that Mitchell has disentitled himself to child support pursuant to section 2 of the Act by unilaterally repudiating his relationship with the Respondent. There is a significant body of case-law dealing with the question of whether a child’s repudiation of their relationship with the payor parent may disentitle the child to support under the Act. Pazaratz, J. thoroughly reviewed these cases in the recent decision of Caterini v. Zaccaria.[^12]

[30] In a number of cases, including the much quoted decision of Farden v. Farden,[^13] the courts have considered unilateral rejection of the relationship by a child to be a factor in determining whether the child falls within the definition of “child of the marriage” in section 2 of the Act. The rationale for this approach has been that a child’s unilateral withdrawal from their relationship with the payor parent is evidence of withdrawal from the charge of that parent. However, it must be emphasized that evidence of a child’s repudiation of their relationship with the payor parent is only one of many factors to consider in determining whether a child remains under parental charge for the purposes of section 2 of the Act.[^14] Fleury, J. held in Law v. Law[^15] that a child remains a “child of the marriage” within the meaning of section 2 of the Act if they are only under the charge of one parent. The Ontario Court of Appeal endorsed this view in Whitton v. Whitton.[^16] Accordingly, the fact that a child repudiates their relationship with the payor parent does not necessarily, in and of itself, take the child outside of the scope of parental charge for the purposes of section 2 of the Act. The court must consider all of the evidence in the case, including whether the child remains financially and otherwise dependent on the other parent.

[31] Evidence that a child has repudiated their relationship with the payor spouse may be a factor in the court’s determination of quantum of support for an adult child pursuant to section 3(2)(b) of the Guidelines. I find support for this conclusion in the cases of Law v. Law[^17] and Whitton v. Whitton.[^18] While those cases have been often cited to support the relevance of repudiation of the parent-child relationship under section 2 of the Act, a close reading of those cases indicates that the courts actually considered this factor in the context of section 11 of the Divorce Act, R.S.C. 1970, c. D-8. That section provided as follows:

11. (1) Upon granting a decree nisi of divorce, the court may, if it thinks it fit and just to do so having regard to the conduct of the parties and the condition, means and other circumstances of each of them, make one or more of the following orders, namely:

(a) an order requiring the husband to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of

(i) the wife, (ii) the children of the marriage, or (iii) the wife and children of the marriage;

(b) an order requiring the wife to secure or to pay such lump sum or periodic sums as the court thinks reasonable for the maintenance of

(i) the husband, (ii) the children of the marriage, or (iii) the husband and the children of the marriage; and

(c) an order providing for the custody, care and upbringing of the children of the marriage.

[32] In Law v. Law,[^19] Fleury, J. considered the child’s repudiation of the father-child relationship as a factor in deciding whether it was “fit and just” to award child support within the meaning of section 11. In Whitton v. Whitton,[^20] the appellant husband had applied for a declaration that the child was no longer a “child of the marriage” within the meaning of section 2 of the Act, and was therefore no longer entitled to child support. The Ontario Court of Appeal concluded that the child continued to be a child of the marriage within the meaning of that section, despite the fact that she had repudiated her relationship with her father without any just cause. It concluded that the only way in which child support could be revisited on the basis of the child’s repudiation of the parent-child relationship was by way of a review of the quantum of child support pursuant to section 11 of the Divorce Act.

[33] The wording of former section 11 of the Divorce Act differs from that of section 3(2)(b) of the Guidelines, but the important point is that both provisions grant a broad discretion to the court in deciding the issue of quantum of child support. Applying the reasoning of Whitton v. Whitton[^21] to section 3(2)(b) of the Guidelines, a child’s repudiation of their relationship with a payor may be considered as a factor in deciding whether it is “inappropriate” to order child support in accordance with the Tables and section 7 of the Guidelines.

[34] In considering the issue of a child’s repudiation of the parent-child relationship, either under section 2 of the Act or section 3(2)(b) of the Guidelines, it is important to heed the warning of Pazaratz, J. in Caterini v. Zaccaria that the focus is not whether there has simply been a breakdown in the parent-child relationship, an argument, a falling out or a drifting apart; the question to be determined is whether there has been a “unilateral termination of a relationship” by the child.[^22] Furthermore, the court must inquire into the reasons underlying the child’s decision to terminate the relationship. The child’s rejection of the relationship will only be relevant in the child support analysis if it is egregious in nature and founded on reasons unrelated to the payor parent’s conduct.[^23] It will have no bearing on the analysis if the child has rejected the parent due to behaviour on the parent’s part that justifies the child’s refusal to maintain a relationship.[^24]

[35] A parent who seeks to avoid or terminate child support on the basis of the child’s repudiation of the relationship has the onus of proving this defence. The onus is a high one.[^25] As part of this onus, the parent must show that they have made meaningful efforts to maintain a positive relationship with the adult child.[^26]

[36] The overarching theme that arises from the case-law dealing with the relevance of a child’s repudiation of the parent-child relationship in the analysis of child support claims is that this factor will rarely be a significant one, and will almost never be determinative. I echo the sentiments of Pazaratz, J. in Caterini v. Zaccaria[^27] that a restrictive approach to this consideration is appropriate, since placing the child’s conduct on trial places the child in the centre of Family Law litigation and undermines the goal of promoting family healing and resolution.

3. Ongoing Enrolment in an Educational Program

[37] As indicated above, the Applicant argues that Mitchell is unable to withdraw from parental charge because he is still attending school. The fact that an adult child is still undertaking educational studies may constitute “other cause” within the meaning of section 2(1)(b) of the Act, but it is not in and of itself determinative of the issue of entitlement to child support.[^28] The entitlement analysis is a fact-driven undertaking in each case. The case-law indicates that in order for the pursuit of post-secondary education to constitute “other cause” within the meaning of section 2(1)(b), the court must be satisfied that the educational plan is reasonable in terms of the child’s abilities, the plans and expectations of the parents in regard to the child’s post-secondary education, and the needs and means of the child and the parents. As the court stated in Geran v. Geran,[^29] the ultimate question in deciding the issue of entitlement in these circumstances is whether the child is “unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child.” The courts have outlined a number of factors which should be considered in answering this question. The following is a collective list of some of the factors, as derived from the cases of Whitton v. Whitton,[^30] Farden v. Farden,[^31] Geran v. Geran,^32 Rebenchuk v. Rebenchuk,^33 Haist v. Haist[^34] and Caterini v. Zaccaria:[^35]

1. Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.

2. Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.

3. The ability of the child to contribute to their own support through part time employment.

4. Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.

5. In reviewing the child’s education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.

6. The child’s academic performance, and whether the child is demonstrating success in the chosen course of studies.

7. The age, qualifications and experience of the child.

8. The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.

9. Whether the child is performing well in the chosen course of studies.

10. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.

11. The means, needs and other circumstances of the parents and the child.

12. The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.

[38] It is not necessary to establish all of the factors set out above to show that the child remains a “child of the marriage.”[^36]

4. Adult Child’s Illness or Disability

[39] The Applicant also alleges that Mitchell is unable to withdraw from parental charge because he suffers from Anxiety and Depression. An adult child of the relationship may remain entitled to support under the Act on the basis of illness or disability which renders them unable to withdraw from parental charge or to obtain the necessities of life. However, a finding of ongoing entitlement in these circumstances requires cogent evidence from the spouse requesting ongoing support about the nature and extent of the child’s disability or illness, and the manner and extent to which this disability or illness is impacting on the child’s ability to obtain the necessities of life on their own. Bald statements from the spouse that the child suffers certain disabilities or illnesses with nothing more will not suffice.[^37]

B. Analysis and Ruling on Mitchell’s Entitlement to Child Support

[40] In the face of the Respondent’s claim that Mitchell is no longer entitled to child support, the Applicant had an obligation as the parent seeking ongoing child support to tender the evidence required to fully assess this issue. I am satisfied based on the evidence that Mitchell remains under the charge of the parties. However, the evidence does not satisfy me on a balance of probabilities that Mitchell has been unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life since he turned eighteen years of age on October 16, 2009. I therefore conclude that Mitchell’s entitlement to child support ended effective October 31, 2009.

[41] On the issue of whether Mitchell remains under parental charge, there is no dispute that Mitchell continues to reside on a full time basis with the Applicant. I accept the Applicant’s evidence that Mitchell has not been gainfully employed on a full time basis since October, 2009. While the Respondent adduced evidence to suggest that Mitchell may be making some income from his music, there is no evidence before me indicating that he has been earning sufficient income to support himself.

[42] With respect to the Respondent’s argument that Mitchell has withdrawn from parental charge by unilaterally repudiating his relationship with the Respondent, even if the evidence established that Mitchell had rejected his father without just cause, this factor would not be sufficient to satisfy me that Mitchell had withdrawn from parental charge in light of the evidence respecting his lack of gainful employment and his ongoing dependence on the Applicant. In any event, the Respondent has not provided the evidentiary foundation that I would require in order to conclude that Mitchell has unilaterally terminated his relationship with his father for egregious reasons unrelated to the Respondent’s conduct. I find that the Respondent has contributed to the breakdown of his relationship with Mitchell in a number of ways. For example, the Applicant stated that the Respondent called Mitchell by telephone on his birthday on October 16, 2009 and told him that he had lost his job and that he should tell his mother that child support would be ending, despite the fact that the Respondent received a six month salary continuance as part of his severance package. I find that the Respondent did in fact stop paying child support at that time. The Respondent has not provided a satisfactory explanation for this behaviour, which placed Mitchell in the middle of the child support dispute.

[43] The Applicant also alleged that the Respondent has not maintained consistent contact with the children since the separation, despite the fact that he was granted generous access pursuant to the order dated December 13, 2000. The records of the Respondent’s physician, Dr. Grafham, confirm that the Respondent was only seeing the children on alternate weekends as of February 2007, and that he acknowledged to Grafham in October 2008 that he was avoiding his children.

[44] The Respondent has not responded in a meaningful way to the allegation that he has contributed to the breakdown of his relationship with the children, apart from stating that he has been unable to maintain contact with his children despite having made efforts to see them through his lawyer and having attempted to contact them by telephone. He did not provide specifics about the history of his relationship with the children since the separation, when these requests and attempts to connect with his children were made, how often he made such efforts over the years, and why he did not initiate court proceedings to address the issue of access with his children. He made reference in paragraph 33 of his Affidavit sworn August 10, 2011 to an incident when his sons did not want to see him. However, the large gap in the evidence regarding the history of his relationships with the children renders it difficult to pinpoint the causes of the breakdown of those relationships.

[45] While I conclude that Mitchell has remained under parental charge, the evidence does not satisfy me that he has been unable to withdraw from parental charge since October 16, 2009. Dealing first with the question of Mitchell’s ongoing participation in an educational program, the Applicant’s evidence on this issue was as follows:

1. She stated in her Affidavit sworn September 14, 2010 that Mitchell was enrolled as of that time at St. Charles Adult Education Centre. According to the Applicant, as of September 14, 2010, Mitchell was attempting to obtain the five credits which he required in order to graduate from high school. However, she produced a Credit Program Registration form from St. Charles Adult Education dated September 16, 2010 which indicated that Mitchell actually required six credits to graduate.

2. In her Affidavit sworn more than a year later, on October 5, 2011, she stated that Mitchell was still attending school at St. Charles Adult Education Centre. Attached to that Affidavit was a letter from Ms. Brenda Milan, Guidance Counsellor of St. Charles Adult Education Centre, which confirmed that Mitchell had been attending daily since September 2010, and required five more credits before he could graduate.

[46] This evidence indicates that Mitchell was only working on one credit from September, 2010 until June 2011. The Applicant has not tendered any evidence about whether Mitchell was in school from October 2009, when he turned eighteen years old, until September 2010. She did not provide any specifics of Mitchell’s educational program at St. Charles Adult Education Centre, including whether he was attending full time or part time. She also failed to lead evidence relating to the other issues listed in paragraph 37 above, which are critical to a determination of Mitchell’s ongoing entitlement to support on the basis of participation in continuing educational programming. There is no evidence before me to support a finding that Mitchell has been unable to support himself since October 2009 due to the demands of his educational program. A bare allegation by the Applicant that Mitchell cannot support himself does not suffice.

[47] Similarly, the evidence adduced by the Applicant does not satisfy me that Mitchell is unable to withdraw from parental charge or obtain the necessities of life due to his issues with Depression and Anxiety. In her Affidavit sworn September 14, 2010, the Applicant stated that Mitchell had been on antidepressants and has been receiving counselling since he was thirteen years old, and that he is unable to withdraw from her control due to his psychological issues. A letter from Mitchell’s physician, Dr. Mazza-Whelan, dated May 11, 2010 confirms that Mitchell has suffered from Depression and Anxiety since the age of thirteen, and that these conditions have “affected his ability to complete school and obtain employment.” While this evidence confirms that Mitchell’s Anxiety and Depression have impacted his ability to become self sufficient, the issue that I must determine is whether Mitchell’s medical and psychological issues have rendered him unable to become financially independent since October 2009. The distinction is an important one.

[48] The Applicant has not provided specifics about how Mitchell’s conditions affect his day to day functioning, whether he has made attempts to secure either full or part time employment since October 2009, the outcome of any such efforts, whether Mitchell is entitled to or has received any grants or subsidies as a result of his Anxiety and Depression, whether he has earned any income since 2009, or whether Mitchell’s condition has improved since Dr. Mazza-Whelan wrote her letter on May 11, 2010. It should be noted that in that letter, Dr. Mazza-Whelan stated that Mitchell was compliant with treatment and that his prognosis was good.

[49] I find that the Respondent attempted to address the deficiencies in the Applicant’s disclosure of information relevant to Mitchell’s ongoing entitlement to child support. Specifically, he requested details as to whether Mitchell had applied for or was receiving disability benefits or social assistance, whether Mitchell had made efforts to find work, whether he had worked and if so the details of his income. He also requested copies of medical reports relating to Mitchell’s medical and psychological conditions. I find that the Applicant did not respond to these requests.

[50] Given my findings set out above, I conclude that Mitchell ceased to be entitled to child support effective on his eighteenth birthday, on October 16, 2009. This constitutes a change in circumstances that satisfies the threshold test for the Respondent’s Motion to Change Final Order.

III. INCOME DETERMINATION

A. The Law

1. General Principles

[51] As noted above, the Respondent also relies on reductions in his income since 2008 as a change in circumstances that meets the test for bringing a Motion to Change child support. While the change respecting Mitchell’s entitlement to child support is sufficient to justify a Motion to Change Final Order, I will also address the alleged changes to the Respondent’s income since it is necessary in any event to determine his income for the purposes of establishing the appropriate quantum of child support.

[52] Section 16 of the Guidelines provides that the starting point for the determination of annual income is the sources of income set out under the heading “total income” (line 150) in the T1 General Form issued by the Canada Revenue Agency. The total of these sources of income is then adjusted in accordance with Schedule III under the Guidelines. While in practice, litigants often rely on the payor’s previous year’s total income as set out in the T1 General Form for the previous year as a basis for determining ongoing child support, section 16 does not dictate this approach. Rather, the goal is to ascertain current income based on the sources set out in the T1 form.[^38] Accordingly, where the payor’s income changes, child support should be calculated on the basis of that changed income rather than by relying on the payor’s line 150 income from the previous year.[^39] In these circumstances, the court should determine the party’s Guidelines income for the upcoming twelve months from when child support will be paid.[^40]

2. Imputing Income

[53] The Applicant has urged me to impute income to the Respondent for the purpose of calculating the child support which the Respondent owes to her. The Guidelines provide that the court may impute income to a party in appropriate circumstances. The relevant section of the Guidelines is section 19, which provides as follows:

Imputing income

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

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

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

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

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

(e) the spouse’s property is not reasonably utilized to generate income;

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

(g) the spouse unreasonably deducts expenses from income;

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

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

Reasonableness of expenses

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

[54] The list of circumstances set out in section 19 is not exhaustive, and therefore does not circumscribe the court’s general discretion to impute income in other situations where it considers it appropriate to do so. These other situations need not be analogous to the circumstances listed in section 19 in order to provide a foundation for imputation of income.[^41]

[55] The onus is on the party requesting the court to impute income to establish the grounds for this request.[^42] However, the payor parent has an obligation to disclose all information that is relevant to their position, which includes full and frank disclosure of all information required to properly assess their income. Where it is alleged that income should be imputed to them, the payor parent cannot simply make bald assertions regarding their financial circumstances and hope that the recipient parent will not uncover evidence to support an imputation of income argument. Rather, the payor has a positive obligation to produce evidence within their possession, power or control to support their position that income should not be imputed. This duty to provide disclosure arises at the outset of the litigation, and is not dependant on the other party making disclosure requests or initiating motions to obtain disclosure orders.

i. Section 19(1)(a): Intentional Unemployment or Underemployment

[56] The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart child support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances.

[57] In determining a party’s capacity to earn income, the principles which the court should consider which are relevant to this case include the following:

1. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children.[^43]

2. Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.[^44]

3. The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.[^45]

4. If a party chooses to pursue self employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent’s child support obligations.[^46]

5. When a parent experiences a change in their income, they may be given a “grace period” to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities or options outside of the area of their expertise in order to satisfy their obligation to contribute to the support of their children. [^47]

6. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.[^48]

7. The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.[^49]

[58] The Respondent states that the decrease in his income since 2008 is in part attributable to the difficulties which he has experienced with his health since that time. Section 19(1)(a) stipulates that underemployment or unemployment that is required by the health needs of the spouse is not a ground for imputing income. Where health issues impact on a payor’s ability to earn income, the payor nonetheless remains under a positive obligation to search for and pursue the best alternate employment available to them taking into consideration their health problems and other circumstances, and income may be imputed to him if they fail to do so.[^50]

ii. Section 19(1)(g): Unreasonably Deducting Expenses from Income

[59] The Respondent argues that he should be permitted to deduct a number of business expenses as well as business-use-of-home expenses from his total income from 2010 onward for the purposes of calculating his child support obligation. The most significant of these business expense claims is for capital cost allowance in relation to his 2007 Volvo XC 90. It is therefore necessary to consider section 19(1)(g) of the Guidelines, which specifically provides that imputing income to a parent may be appropriate where a spouse unreasonably deducts business expenses from their income. As section 19(2) clarifies, the fact that an expense may be deducted from income for income tax purposes is not determinative of whether the deduction is reasonable for the purposes of income calculation in child support cases.

[60] Where it is claimed that business expenses are being unreasonably deducted from income, the burden of proof is on the party claiming that expenses are unreasonable.[^51] However, the parent who seeks to deduct business expenses from his income for child support purposes cannot simply put forth numbers for alleged business expenses with no justification or evidence to support those numbers, and then put the other party to the expense of disclosure motions and questioning in an effort to prove that the expenses are unreasonable. The party claiming the deductions as against income has an obligation to explain the reasons for the expenses and how they were calculated, and must provide documentary proof of the expenses in an organized manner so that the court can make a proper determination as to the reasonableness of the expense from the standpoint of the child support calculation.[^52] This obligation flows from the party’s general obligation to provide relevant information respecting their case, and to make full and frank disclosure of their financial situation in the context of a child support case. If the party seeking to deduct business expenses from income fails to provide meaningful supporting documentation or other evidence in respect of those deductions, an adverse inference may be drawn by the court in making the income determination.[^53]

[61] In order to impute claimed business expenses back into a parent’s income pursuant to section 19(1)(g) of the Guidelines, it is not necessary to establish that the party who has claimed the deductions has acted improperly or outside the norm for claiming expenses in the income tax context. Rather, the issue is whether the full deduction of the expense results in a fair representation of the actual disposable income that is available to the party for personal expenses.[^54] In determining whether business expenses claimed by a party are unreasonable, the court must balance the business necessity of the expense against the alternative of using those monies for the purposes of child support.[^55] In carrying out this analysis, the court must keep in mind that principle which the Supreme Court of Canada established in D.B.S.[^56] that payor parents should not be permitted to manipulate their financial affairs so as to prefer their own interests over those of their children.

[62] A review of the case-law respecting business deduction claims reveals a general theme that in determining whether claimed expenses should be added back into a parent’s income for child support purposes, an important consideration is whether there is a personal benefit derived from the business expenses that employed people would have to pay for from their income. By way of examples:

1. In Lemmon v. Lemmon,[^57] notional deductions for home office and promotional expenses that had personal overtones were added back into the payor’s income.

2. In R.(P.C.J.) v. R. (D.C.),[^58] the British Columbia Court of Appeal imputed income back to the payor father on account of claimed food, motor vehicle and telephone expenses because there was an element of personal benefit to these expenses.

3. In Manchester v. Zajac,[^59] the court imputed a number of claimed business expenses for home office expenses, car expenses, utilities and capital cost allowance back to the payor as income because of the personal use aspects of the expenses.

4. In Cook v. Cook,[^60] the court imputed claimed expenses for a home office into the payor’s income on the basis that these expenses were payable by the payor whether she operated her business from the home or not, and that the payor had not adduced any evidence to establish that the cost of operating her business from the home materially increased the cost of operating her household.

5. In Osmar v. Osmar,[^61] the court imputed home office and automobile expenses back into income as a result of the personal benefit which the party derived from the expenses.

6. In Wilson v. Wilson,[^62] the court added business expenses for meals and entertainment, and a portion of the expenses claimed for cell phone, computer and internet back into the payor parent’s income based on the personal nature of the expenses. The court also added the amount claimed for work-space-in-the-home expenses back into the party’s income, since the party did not adduce any evidence showing that he needed a larger home to carry out his work as a commissioned salesman. The court concluded that the party would have likely incurred these same household expenses even if he did not require a home office.

[63] As noted above, the Respondent claims a significant deduction from his income on account of capital cost allowance relating to this vehicle. Section 11 of Schedule III to the Guidelines specifically provides that deductions for capital cost allowance in respect to real property must be included in income. There is no provision specifically setting out how capital cost allowance respecting personal property should be dealt with, and therefore the reasonableness of this expense is left for the court to determine on a case by case basis pursuant to section 19(1)(g) of the Guidelines. The Manitoba Court of Appeal canvassed the case-law on this issue at length in Cornelius v. Andres[^63] in 1999. It emphasized that the party claiming the deduction has an obligation to explain why the claim is being made, and to justify the amount claimed for any given year. The court concluded that the following factors may be relevant in any given case in determining whether the deduction claimed is reasonable in the context of the child support analysis:

1. Was the capital cost allowance deduction an actual expense in the year in question?

2. Was the capital cost allowance deduction greater than or less than the cost of acquisitions during the same period?

3. Was the capital cost allowance deduction greater than or less than the repayments of principal with respect to the chattels in question?

4. Was the capital cost allowance deduction the maximum allowable capital cost allowance deduction?

5. Was it necessary to take the capital cost allowance deduction in that year?

6. How much of a loss in a business year resulted in that year?

7. Are the chattels for which the capital cost allowance deduction claimed truly needed for business purposes?

8. Do the chattels for which the capital cost allowance deduction was claimed truly depreciate?

9. Is it foreseeable that future chattel purchases will not be required?

10. Is there a pattern of spending that establishes a greater real income than income tax returns indicate?

11. If the children were living with the party, would they benefit from the actual income earned by the spouse?

12. Is there a dire need for child support?

[64] Cases decided since Cornelius v. Andres have established the following additional factors which may be relevant to the analysis:

1. Whether the capital cost allowance deduction claimed in the year in question corresponds generally with the actual depreciation of the property for which it was claimed.[^64]

2. Is there an intention to replace the chattel(s) in relation to which the deduction is claimed?[^65] If there is an intention to replace it, what is the cost of replacement and when will it need to be replaced?[^66]

3. Does the chattel continue to serve a useful function for the business?[^67]

4. Did the party claiming the capital cost allowance deduction set aside funds during the years in which the deduction is claimed for the purchase of new equipment?[^68]

5. Is the capital cost allowance deduction a real expense or a book entry to simply reduce income? Is it reasonable and necessary?[^69]

6. What capital acquisitions are needed in the foreseeable future to sustain or expand the business?[^70]

[65] If it is determined that business expenses claimed by a party should be added back into that party’s income, the amount added to income should be grossed up by the party’s marginal tax rate to place the party’s real income on par with what it would be for a person with a salaried income who would be taxed on the amount in question.[^71]

B. Evidentiary Findings and Rulings Respecting the Respondent’s Income

1. 2008 and 2009 Income

[66] The Respondent’s claim for a retroactive reduction of his child support obligation is founded on decreases in his income since 2008. An analysis of his income since that time is therefore necessary.

[67] I make the findings set out in this section respecting the Respondent’s income, his health and the impact of his health issues on his capacity to work in 2008 and 2009.

[68] The child support order of Pazaratz, J. dated March 12, 2008, which the Respondent seeks to change, was based on the Respondent’s 2007 annual income of $127,206.10. When this order was made, the Respondent was working as a Sales Manager for Becker. The Respondent’s actual income from Becker in 2008, as reflected in his T4 issued from Becker for that year, was $124,329.77. There was no evidence respecting his total 2008 income before the court, but the Respondent does not claim a reduction of child support for that year.

[69] The Respondent’s income decreased to $119,786.60 in 2009, due in part to the fact that he was terminated from Becker on September 24, 2009. The Record of Employment which Becker issued on October 5, 2009 confirms that this termination was due to restructuring, and that the Respondent received a salary continuance up until March 24, 2010.

[70] The Respondent’s income also decreased in 2009 as a result of health difficulties which he was experiencing, which impacted on his ability to work. The Respondent’s health problems include the following:

1. Since 2005, the Respondent has been suffering from coronary artery hypertension, Adjustment Disorder with Depressed Mood, Insomnia, and a knee injury.

2. Since 2006, he has had a diagnosis of Anxiety.

3. Since 2007, he has been diagnosed as suffering from Depression.

4. In addition, he suffers from high cholesterol.

5. On February 6, 2009, the Respondent underwent triple bypass surgery after being diagnosed with coronary artery disease with severe left main coronary stenosis.

6. The Respondent was prescribed numerous medications in 2009 to address his various health issues, and remains on all of those medications with the exception that a beta blocker medication has been changed since that time.

[71] Following his triple bypass surgery, the Respondent was off work for four months. He did not collect any income for the first six weeks, but then received short term disability benefits amounting to approximately 2/3 of his regular salary for the duration of the time that he was off work.

[72] The Respondent found his position with Becker very stressful. The records from his physician, Dr. Grafham, confirm that the Respondent expressed concerns to Dr. Grafham about the stress of his line of work on a number of occasions before the Respondent underwent heart surgery. Dr. Grafham, has advised the Respondent that he needs to work at a lower stress job than he has been used to doing in the past due to his health problems.

[73] The Respondent’s physician advised him to reduce his stress following his surgery, but the Respondent returned to his previous position at Becker in June, 2009 because his household expenses were piling up, and because he needed to maintain his child support payments. The Respondent states that he did not want to incur the stress of commencing court proceedings at that time to reduce his child support obligations.

[74] The Respondent was initially monitored by a Hamilton cardiologist, Dr. Sullivan, after his surgery, and was later followed by an Oakville cardiologist, Dr. Chiamvimonvat. He was referred to a Cardiac Rehabilitation Program run through Halton Healthcare Services, but was discharged from the program in November 2009 due to his non attendance at the program. He did, however, consult with a dietician through the program in August, 2009.

[75] I find that since his bypass surgery, the Respondent has continued to experience chest pain and pulling sensations in his chest off and on, which cause him alarm, and fatigue. The chest pain increases with stress. Records from Dr. Chiamvimonvat and Dr. Grafham confirm that the Respondent has complained to them about this chest pain. Dr. Chiamvimonvat indicated in a report dated June 1, 2010 that the pain was likely musculoskeletal in nature. A report from the Respondent’s physician, Dr. Grafham, dated August 19, 2010, confirms that the Respondent has complained about this ongoing chest pain to him, and that the pain could be either of cardiac origin or related to the Respondent’s Anxiety condition. The Respondent has undergone additional cardiac testing to assist in determining the cause of these issues, but as of the trial of this matter, no definitive cause for the ongoing chest pain had been established.

[76] The Respondent states that he began to search for alternative work immediately following his termination from Becker. He produced a list of executive search firms which he used in his attempts to find employment. In addition, he stated in his Affidavit sworn August 10, 2010 that immediately after being terminated from Becker, he attempted to find employment by networking with various personal contacts, and by searching the job search internet sites “Elvta,” “Workopolis” and “Careergo.” However, he alleges that he is unable to work in the same type of high stress position which he held with Becker due to his various health issues. I find based on his evidence and the medical records adduced as evidence that a return to the same type of high stress sales position as he held at Becker would indeed be detrimental to his health, and that his health issues have therefore impaired his ability to find comparable employment.

[77] I find that the Respondent made reasonable job search efforts from September 24, 2009 until the end of 2009, but that he was unable to obtain any other employment during that period. During that time frame, he continued to receive severance pay from Becker. Based on all of the evidence relating to the Respondent’s employment and medical circumstances in 2009, I am satisfied that his 2009 income was $119,786.60, and that no additional income should be imputed to him for that year.

2. 2010 Income

i. Positions of the Parties

[78] As indicated previously in these Reasons for Judgment, counsel for the Respondent submits that the Respondent’s 2010 income for the purposes of the child support calculation should be $39,489.00, consisting of $29,292.29 which he received in severance from Becker, and $7,500.00, grossed up for tax, representing the amount of self employment business expenses which he agrees to have imputed to him pursuant to section 19(1)(g) of the Guidelines.

[79] Counsel for the Applicant argues that the Respondent should be imputed an income of $80,000.00 from January 2010 onward. In support of this position, he submits that the Respondent’s decision to continue with Bulk Chemicals has been unreasonable given the unprofitable nature of the business, and that he has not been diligent enough in pursuing alternative, more lucrative income earning opportunities. He argued that the Respondent’s stated income does not correspond with the amount of the personal expenses which the Respondent reports and the increase in his debt load since the Respondent’s termination from Becker. With respect to the business expenses which the Respondent claims, his position was that these expenses are unreasonable deductions, and that at the very least the court should add those expenses back into the Respondent’s income for the purposes of the child support calculation.

ii. Analysis

[80] With respect to the severance pay which the Respondent received in 2010 from Becker, It is acknowledged by the Applicant, and I find, that this pay totalled $29,292.29.

[81] In January 2010, the Respondent secured a sales contract with Bulk Chemicals Inc. (“Bulk Chemicals”) pursuant to which he undertook to act as an Independent Sales Representative for Bulk. In addition to this contract, the Respondent entered into a verbal agreement with a steel service company, PGR, in 2010 to act as a sales agent. With respect to this latter position, the Respondent’s evidence was that his remuneration is purely commission-based. He states that he spends approximately twenty hours per week working on behalf of PGR, but that he has been unable to date to obtain any sales. This work is carried out from his home. I accept the Respondent’s evidence respecting the efforts which he made to secure income from this source in 2010, and his inability to supplement his income through those efforts.

[82] With respect to the arrangement with Bulk Chemicals, the Respondent and Bulk Chemicals entered into a Manufacturers’ Representative Agreement (“the Agreement”) commencing January 1, 2010. This is a self employment arrangement. The Respondent continues to work as an Independent Sales Representative for Bulk Chemicals. The Agreement between the Respondent and Bulk Chemicals provides that the Respondent is to receive a monthly amount of $2,500.00 American from Bulk Chemicals, commissions in an amount “to be determined”, and “ordinary expenses” to be paid monthly. The Agreement does not define “ordinary expenses.”

[83] I find based on the Respondent’s evidence that Bulk Chemicals had no sales presence in Canada when the Respondent entered into the Agreement with the company, and that the purpose of his arrangement with Bulk Chemicals was for the Respondent to attempt to establish and build upon a sales base for the company. The Respondent’s work as a Sales Representative involves a large amount of travel. I accept the Respondent’s evidence that the process of establishing a sales base in Canada has taken longer than he and Bulk Chemicals representatives anticipated, and that part of the difficulty has been that the Respondent is unable to devote more than twenty to twenty five hours per week in the position due to his health issues. According to the Respondent, after he makes a long sales trip he requires a few days afterwards to recover.

[84] It is undisputed that the Respondent received $30,000.00 American from Bulk Chemicals in 2010 on account of the monthly fee for his service. This translates into the sum of $29,135.00 Canadian. The Respondent states that he did not receive any commission income in 2010 from Bulk Chemicals. Correspondence from Mr. Charles Ike, President of Bulk Chemicals, dated October 7, 2010, confirms that the Respondent had not received any commission income as of that date. Emails from Mr. Bob Jerman, Director of Sales for Bulk Chemicals, to the Respondent dated June 29, 2011 and August 1, 2011 indicate that the Respondent’s efforts on behalf of the company in Canada had not generated any success by that point, with the result that the company was discussing terminating the Respondent’s contract. There is no evidence to contradict the Respondent’s evidence that he did not receive any commission income in 2010, and therefore I find that he did not receive any such income in that year.

[85] As indicated above, the Agreement with Bulk stipulates that the Respondent is to receive reimbursement for ordinary expenses on a monthly basis. The Respondent provided no evidence whatsoever as to the reimbursement for expenses, if any, which he received from Bulk Chemicals in 2010, and the correspondence from Mr. Charles Ike dated October 7, 2010 referred to above does not address this issue.

[86] The Respondent has claimed business expenses in the amount of $29,675.11 as against the $29,135.00 which he earned from Bulk Chemicals in 2010. As a result of these expenses, he states that his net business income for income tax purposes for 2010 was nil. The $29,675.11 of business expenses which he claims for 2010 are as follows:

i. Meals and entertainment

(50% of $5,500) $ 2,750.00

ii. Office expenses $ 400.00

iii. Supplies $ 200.00

iv. Travel (includes transportation

fees, accommodations and

allowable part of meals) $ 500.00

v. Telephone and utilities $ 2,300.00

vi. Motor Vehicle Expenses $ 8,835.26

vii. Capital Cost Allowance in relation

to his vehicle $11,472.00

viii. Business-Use-of-Home-Expenses:

Total Home Expenses:

➢ Heat $ 600.00

➢ Electricity $ 1,400.00

➢ Insurance $ 350.00

➢ Maintenance $ 5,000.00

➢ Mortgage Interest $12,000.00

➢ Property Taxes $ 3,800.00

TOTAL: $23,150.00

Claimed 13.9% of total

Home Expenses for business-

use-of-home

$23,150.00 X 13.9% = $ 3,217.85

TOTAL BUSINESS EXPENSES CLAIMED: $ 29,675.11

[87] With respect to ongoing job search efforts, as noted previously, the Respondent stated in his Affidavit sworn August 20, 2010 that since his termination from Becker, he has attempted to find work by contacting a number of executive job search firms, networking with personal contacts and searching for work on three internet job search sites. The other evidence relating to job search efforts which he has made since August 2010 is set out in his Affidavits sworn August 25, 2011 (which has an erroneous date of August 25, 2010 on the commission page) and November 9, 2011. In the August 25, 2011 Affidavit, he stated that he has been looking for other work since he was terminated from Becker, but that he has not had any job offers. He relayed that he had a job interview on August 24, 2011 with Northspec, but at trial it was confirmed that he did not obtain this position. In his Affidavit sworn November 9, 2011, he reiterated that he has applied for many other jobs since being terminated from Becker. Specifically, he stated that he had registered with a number of executive search firms, had applied for two positions with BASF, for sales positions with Thermo Ceramics, for a technical service position with Valspar and for various other positions with Eluta. He stated that he had recently been interviewed for other jobs. According to the Respondent, he is well known in his industry, and knowledge about his health issues has spread. His view is that his health issues have impeded his job search efforts, since employers may be reluctant to assume the risk of hiring him, and the additional cost of health insurance required for him to travel outside of Canada would be an added burden to employers.

[88] It is clear from the Respondent’s evidence that he spent a significant amount of time in 2010 pursuing the opportunities with Bulk Chemicals and PGR. With the benefit of hindsight, it is apparent that these efforts did not result in significant remuneration for the Respondent in 2010. However, the issue to be determined is whether it was reasonable, based on the information available to the Respondent at the time, for the Respondent to devote the time and effort which he did to the PGR and Bulk Chemicals opportunities in 2010. I conclude that it was reasonable for him to do so. With respect specifically to the Bulk Chemicals contract, I am satisfied that the Respondent viewed this as a potentially very lucrative undertaking. The Respondent’s employment history and his income level up until 2009 reflect a consistency in terms of his professional commitment and performance which provides a backdrop for my conclusions on this issue. His Agreement with Bulk Chemicals provided him with the opportunity to create and develop a sales base for the company that has not existed before in Canada. The Respondent has provided credible explanations for why efforts to establish a business presence in Canada have taken longer than was anticipated, and what the company needs to do to establish a solid sales base here. The fact that Bulk Chemicals has continued to pay him $2,500.00 American per month throughout 2010 to attempt to establish a Canadian presence supports the Respondent’s position that there was a basis for his optimism in 2010 that he would be able to derive significant remuneration from his efforts. Given the potential upside of these efforts for both the Respondent and the children in terms of his ability to contribute to their support, I conclude that the decision to pursue the opportunity was a sound one.

[89] Counsel for the Applicant raised concerns that the Respondent did not make significant enough efforts to seek out alternative sources of income in 2010 at the same time as he pursued the Bulk Chemicals opportunity. The Respondent’s evidence respecting his job search efforts in 2010 is unclear. The shortcomings respecting this evidence are as follows:

1. Although the Respondent provided a list of the executive job search firms which he contacted after he lost his job with Becker, he did not specify how many firms he contacted, when exactly he contacted them, who he met or spoke to from those firms, whether he followed up with any of those firms after the fall of 2009 and if so, what the outcomes of those follow up efforts were. In addition, he did not provide evidence as to what types of jobs those firms were searching for on his behalf, and more specifically, how diversified the job search efforts with those firms were.

2. He did not specify the names of the people he networked with, how often since 2010 he has networked with these individuals, and whether he followed up with all leads which those individuals may have provided to him.

3. He stated that he had used internet sites to search for jobs, but did not clarify when he searched jobs on those sites or whether the searches on those sites were ongoing in nature from September 2009 to present. He did not provide a list of the jobs he pursued from those sites, or copies of applications which he sent and responses which he received as a result of any such efforts. In fact, he did not produce any documentary evidence whatsoever of any job applications which he sent or responses which he received.

4. It was only in his Affidavit sworn November 9, 2011, just prior to the trial, that the Respondent provided names of specific companies which he had applied to for positions. He did not specify when he applied for those positions. Although he made reference to applying to a number of jobs, he only specifically named four companies. He did not provide any details about the jobs that he has applied for, such as the level of the positions, the remuneration or whether the jobs were specifically within his field.

[90] In short, the Respondent’s evidence respecting his job search efforts is limited, vague and only of marginal assistance for the purpose of determining whether his efforts have been sufficient to avoid an imputation of income to him. I am left with an unclear picture of precisely how many jobs he has applied for, when exactly he applied for them, and whether his job search was limited to high paying positions only within his area of historical experience or if it was more diversified. As discussed previously, the case-law has established that although a payor parent may be given a period of time after losing employment to seek work within their specific area of expertise and within the same scope of remuneration, this grace period does not last indefinitely; within a reasonable time frame, the wishes of the parent respecting the type of job which they wish to have must give way to the need of their children for support.

[91] Despite my concerns regarding the Respondent’s evidence respecting his job search efforts, I conclude that at least in regard to most of the year 2010, the Respondent’s efforts to earn income and search for additional sources of work were acceptable. While it is unclear how extensive and diversified the Respondent’s job search efforts were in 2010, I am satisfied on the evidence that he did make some ongoing attempts to explore alternative or additional sources of income. In addition to these efforts, I find that in 2010, the Respondent remained involved with PGR in an attempt to generate sales for the company and obtain commission income. He also continued to receive his severance pay from Becker until late March, 2010.

[92] In reaching my conclusion on the sufficiency of the Respondent’s efforts to secure additional sources of income in 2010, I have also considered the Respondent’s health issues, and the impact which they have had on his work capacity, including his ability to tolerate stress. For all of these reasons, I conclude that the Respondent should not be imputed additional income for the year 2010 on the basis of intentional underemployment. However, I also find that by late summer, 2010, when the Respondent had still not generated any sales or earned any commissions as a result of his work with Bulk Chemicals or PGR, he should have been significantly ramping up his efforts to seek alternative sources of income. There is insufficient evidence before me to conclude that he did so. These findings are important for the purposes of my determination regarding the Respondent’s income from 2011 onward, as discussed below.

[93] Counsel for the Applicant argued that the evidence supports a finding that the Respondent in fact has had more income or capital since his termination from Becker than he has disclosed in this proceeding. He raised concerns regarding discrepancies in the Respondent’s financial disclosure, and argued that the Respondent was presenting an inflated perspective of his debt load and was minimizing the value of his asset base. He noted that the Respondent’s Financial Statement sworn August 25, 2011 discloses annual expenses of $48,300.00, and submitted that there is a disconnect between the amount of these expenses, the Respondent’s reported income, and the increase in his debt since the Respondent’s employment with Becker terminated in September 2009.

[94] Upon reviewing the evidence on this issue, I agree that there are some significant discrepancies and gaps in the Respondent’s financial disclosure. For example, in his affidavit sworn November 9, 2011 he stated that he believed his house had a value of at most $380,000.00, but in his Financial Statement sworn August 25, 2011, he swore that it had a value of $430,000.00. He did not explain this discrepancy at trial. In addition, in his affidavit sworn August 25, 2011, he estimated that he had debts which he owed to friends and relatives in the amount of approximately $4,000.00, whereas in his affidavit sworn November 9, 2011, he claimed that these debts totalled $60,000.00. He did not provide an explanation for this significant increase, and did not provide any documentary evidence to support the existence of these debts.

[95] Based on the concerns described above, I find that the Respondent’s financial situation has not been as dire as he has suggested. However, I also find that there is no significant disconnect as alleged by the Applicant between the Respondent’s expenses, his reported income and the increase in his debt load since September, 2009. Even if the debts which the Respondent states he incurred from friends and relatives are not considered, the evidence indicates that the Respondent had to realize upon his assets and incur debt in 2010 and 2011 in the total amount of approximately $30,805.72. Specifically, from August 2010 until August 2011, he increased his credit card debt by $7,000.00, used approximately $19,000.00 of his bank funds to pay his bills, went into overdraft on his Royal Bank chequing account in the amount of $2,805.72 and incurred a $2,000.00 debt on his Royal Bank line of credit in order to manage his expenses.

[96] With respect to the Respondent’s 2010 income, the issue that remains to be determined is whether the Respondent should be imputed income on account of unreasonably deducting business expenses from the income which he earned through his work on behalf of Bulk Chemicals. For the reasons that follow, I conclude that the Respondent should be imputed income in the amount of $21,314.85 for the year 2010 on account of business expenses which he has unreasonably claimed as against his 2010 self employment income.

[97] Before turning to an analysis of the various business expenses which the Respondent has claimed, some comments regarding the evidence which was adduced respecting these expenses are in order. The only information that was before me regarding the business expenses were copies of receipts for car repairs carried out in July, 2011 totalling $2,163.05, gas receipts for the period from April 1 to June 30, 2011 totalling $2,824.70, and the Respondent’s 2010 Income Tax Return, with attached schedules including a Statement of Business or Professional Activities. There were no receipts provided to support any of the other expenses claimed. Further, there is no evidence as to how the significant capital cost allowance deduction which the Respondent claims for 2010 was calculated. The Respondent did not produce his 2010 Notice of Assessment and Notice of Reassessment, and therefore it is unknown whether Canada Revenue Agency has accepted these deductions as legitimate even for income tax purposes. Counsel for the Respondent acknowledged the lack of expert evidence on the issue of the capital cost allowance deduction and how the other expenses were calculated, and explained that obtaining an expert report was not feasible given the financial situation of the parties.

[98] I acknowledge that the financial situation of the parties is such that obtaining an expert report on the business expense issues may not make practical sense from a financial standpoint. However, the financial difficulties involved in obtaining the evidence required to adjudicate upon these issues must be balanced with the need to provide the court with the information required to make determinations that achieve justice for the parties. In the absence of an expert opinion, evidence at the very least in the form of receipts and an explanation from the Respondent’s accountant, or from the Respondent himself, as to how the expense claims were calculated would have been helpful.

[99] Turning to the business expenses which the Respondent has claimed, his evidence is that he incurred a total of $5,000.00 for meals and entertainment, and he claims $2,750.00 on account of these expenses which represents 50% of the total amount. I am imputing the total amount of this expense to the Respondent as income for two reasons. First, the total amount of $5,000.00 which he states he incurred represents 17% of the total income which he states he earned from Bulk Chemicals in 2010. This amount is unreasonable when considered in conjunction with the minimal total income which the Respondent earned. Second, the Respondent did not adduce any evidence that these expenses were incurred other than for his own meals, which he would have had to pay for regardless of whether he was working.

[100] The Respondent claims $2,300.00 for telephone and utilities. Again, there are no receipts supporting this claim. I do not know whether the amount claimed is for a cell phone, a home telephone or both, and whether the amount represents the entire amount of either or a portion of each. However, given the amount of time that the Respondent states he spends on the road, I conclude that a significant amount of this expense was likely attributable for personal use, and I am therefore adding 50% of this expense, ie. $1,150.00, back into the Respondent’s income.

[101] The Respondent has claimed $8,835.26 on account of motor vehicle expenses. His evidence is that he incurred a total of $9,085.00 in motor vehicle expenses, which included the cost of fuel and oil, interest, insurance, licence and registration, and maintenance and repairs. He alleged that he had driven 68,000 kilometres in 2010, and that 65,000 kilometres were for business purposes. Accordingly, he apportioned 95.6% of his total motor vehicle expenses to his business. I accept the Respondent’s evidence that as a salesperson, he spends a significant amount of time on the road networking and meeting with customers and potential clients. Once again, however, there is dearth of evidence relating to the Respondent’s motor vehicle expense claim, despite the fact that this claim represents 30% of the total income which he states he earned from Bulk Chemicals in 2010. The Respondent did not produce any travel logs relating to his business use of the vehicle, and did not adduce evidence as to the specifics of his business travel. Having regard for the lack of evidence to substantiate this claim, and the disproportionate amount of the claim in relation to the income earned, I conclude that a reasonable apportionment of the Respondent’s total motor vehicle expenses for business purposes is 70%. Accordingly, I apportion $6,359.50 to business expenses, and impute $2,725.50 back to the Respondent as income.

[102] With respect to the Respondent’s claimed business-use-of-home expense of $3,217.85, the Respondent alleges that his total home expenses were $23,150.00, and that 13.9% of these expenses were attributable to his business. There is no evidence before me to explain or support this apportionment. The Respondent indicates in his affidavit materials that he works from home part of the time, but also states that he spends a considerable amount of time on the road, which explains his very high motor vehicle expense claim. Given the Respondent’s evidence about the extent of his business travel, the amount of time that he actually spends in the home office space would be relatively limited. There is no evidence before me that the Respondent purchased a bigger home so that he could run a home office, or that the cost of having an office in his home or operating that office has increased the overall cost of running his household in any way. Furthermore, there is no evidence as to whether the Respondent has a separate office area in his home, or whether the space is also used for personal purposes. For all of these reasons, I am adding the entire amount of the business-use-of-home claim of $3,217.85 into the Respondent’s 2010 income.

[103] Finally, the Respondent has advanced a capital cost allowance claim in relation to the vehicle which he uses in the amount of $11,472. 00. Having carefully considered all of the factors which are relevant to this claim, I have concluded that the full amount of the capital cost allowance should be imputed to the Respondent as income. There is no evidence that the capital cost allowance was an actual expense to the Respondent in 2010. Based on the evidence before me, it appears that the vehicle was purchased in 2007, and I have no information as to why such a significant capital cost allowance is claimed for 2010. It is clear that the capital cost allowance claimed by the Respondent exceeds the cost of acquisitions during the year 2010. I have no information as to whether the amount claimed was the maximum amount allowed, or whether it had to be claimed in 2010. These are very important issues from the standpoint of the child support analysis, as it may have been more appropriate for the Respondent to claim higher capital cost allowance deductions in later years when his income became higher so that there was income available for the support of his children for 2010.

[104] While I accept that the vehicle in question is required for the Respondent’s work, and that it depreciates in value each year, there is the important question as to whether the Respondent should have in fact continued to pursue the Bulk Chemicals opportunity so aggressively in 2011. As I discuss in further depth below, I have concluded that in light of the limited progress which the Respondent made with this opportunity in 2010, it was incumbent upon the Respondent to aggressively seek out alternative sources of income by mid to late 2010, with the goal of obtaining a steady source of employment. Given that the outcome and potential success of the Bulk Chemicals venture was so uncertain in 2010, a capital cost allowance claim in the amount claimed by the Respondent is inappropriate.

[105] In deciding the capital cost allowance issue, I have also taken into account the fact that the Respondent does not appear to have actually set aside funds in 2010 for the purchase of any new equipment for his business activities, and that the amount claimed represents 39% of the Respondent’s total 2010 income. Finally, I have considered the Applicant’s need for child support. I find that the Applicant experienced a decrease in her income at Hamilton Health Sciences in 2010. In the spring of that year, she was given written notice that her employment would be terminated. However, she was able to “bump” another employee pursuant to the terms of the Collective Agreement and obtain a medical secretary position, which resulted in a reduction in pay from her Research Associate position which she had previously held. I find that as a result of these developments, the Applicant’s 2010 income was only $44,333.90. I also find based on the Applicant’s evidence that the Respondent’s decision in the fall of 2009 to cease paying child support made it very difficult for her to meet the children’s needs, and caused her emotional distress. I find that the Applicant had to collapse an RRSP in the amount of $22,400.00 in late October, 2009 and refinanced her mortgage in order to manage her debt load after she realized that the Respondent had stopped child support payments.

[106] Based on the foregoing analysis, I impute a total additional non-taxable income to the Respondent for the year 2010 in the amount of $21,315.35. In reaching this decision, I have also taken into consideration the fact that the Respondent’s Agreement with Bulk Chemicals specifically provided that the Respondent would be reimbursed his “ordinary expenses.” The Respondent was strangely silent in regard to this provision, and led no evidence whatsoever as to whether or not he received reimbursement for some of his business expenses, including meal allowances, mileage and gas expenses, which are the types of expenses that are typically reimbursed to salesman. The Respondent’s failure to adduce evidence on the issue of reimbursement for expenses from Bulk Chemicals provides further support for my conclusion that many of the claimed business expenses should be imputed back to the Respondent as income.

[107] The amount of $21,315.35 should be grossed up for tax, given that the Respondent did not have to pay tax on this amount. I therefore find that the Respondent’s total 2010 income was $58,354.00, consisting of the severance pay which he received from Becker in the amount of $29,292.00, and the amount of $21,315.35, grossed up for tax.

3. Income from 2011 onward

[108] Counsel for the Respondent urged me to find that the Respondent’s income as of January 2011 was nil, based on the fact that his business expenses are at least equal to or greater than the income which he has been generating from Bulk Chemicals since that time. I conclude for the reasons set out below that the Respondent should be imputed an income of $23,750.00 for the period from January 1, 2011 until March 31, 2011, and that commencing April 1, 2011 he should be imputed an income of $65,000.00.

[109] I have a number of difficulties with the Respondent’s position respecting his income from January 2011 onward. First, the Respondent stated that he continued to work approximately twenty hours per week on behalf of PGR, attempting to generate sales and commission income for himself. However, there is no evidence before me regarding the precise nature of the work which he carried out with PGR, whether the Respondent felt in 2011 that this work had a high potential for becoming lucrative for him, and if so, the reasons for the Respondent’s views on the issue. Furthermore, there is no documentary evidence before me from PGR confirming the nature of the Respondent’s relationship with that business, and that he did not earn any commission income from the company in either 2010 or 2011. Having regard for this gap in the evidence and the Respondent’s ongoing lack of success in making income through PGR initiatives in 2010, and in the absence of any evidence that his ongoing work for this company had a significant potential upside for him, I conclude that it was unreasonable for the Respondent to persist with this line of work from the second half of 2010 onward.

[110] With respect to the Respondent’s work with Bulk Chemicals, as indicated previously, the Respondent had a basis for remaining optimistic in 2010 that this undertaking would be lucrative for him in the reasonably foreseeable future. However, I find that by the fall of 2010, when the Respondent was nine months into his contractual relationship with Bulk Chemicals and had still not secured any sales for the company, he should have been seriously questioning whether it was advisable to persist in spending such a significant amount of his time on behalf of Bulk. By July 2010, he should have been devoting more time to job searches rather than the PGR initiative, and by the fall of 2010, he should have significantly intensified and diversified his employment search efforts given that the Bulk Chemicals initiative was not generating the returns which he had hoped for.

[111] I find on a balance of probabilities that if the Respondent had begun to spend more time on his job search efforts in July, 2010, and further intensified this search in the fall of 2010, he could have in all likelihood obtained some type of employment with an income in the range of $65,000.00 by April 1, 2011, and I therefore impute that income to him as of April 1, 2011. This would have given him one and a half years from the time of his termination from Becker in September 2009 to find alternative employment at a reasonable level of remuneration, and nine months from the time when he should have begun to intensify and diversify his job search efforts in July, 2010. In deciding upon the amount of $65,000.000, I have considered the fact that the Respondent’s income from Becker was $119,786.80 in 2009. The amount of $65,000.00 represents approximately 54% of that 2009 salary. While this amount is significantly lower than his 2009 income, I accept the Respondent’s evidence that he is simply unable to function in the same type of high stress job that he held at Becker. However, given his training, his numerous years of experience and what he described as his very good reputation in sales, I conclude that a salary in the range of $65,000.00 is realistic.

[112] With respect to the three month period from January 1, 2011 until March 31, 2011, I impute an annual income to the Respondent of $23,750.00. This figure represents the sum of $21,315.00, which is the total amount of business expenses that I imputed back to the Respondent as income for 2010, grossed up for tax.

[113] My findings respecting the significant changes in the Respondent’s income since September 2009 provide a second basis for concluding that there has been a change in the Respondent’s circumstances which satisfies the threshold test for bringing a Motion to Change child support.

ISSUE # 2: HAS THE RESPONDENT ESTABLISHED A CASE FOR A RETROACTIVE REDUCTION OF CHILD SUPPORT?

I. THE LAW

[114] Although the Respondent only commenced his Motion to Change Final Order on August 16, 2010, his claim includes a request for a retroactive reduction of child support commencing January 1, 2009.

[115] The fact that the Respondent’s income changed as of January 1, 2009 does not necessarily mean that retroactive reductions to child support should automatically follow. In Corcios v. Burgos,[^72] I addressed the issue of whether the principles which the Supreme Court of Canada established in D.B.S.[^73] regarding retroactive claims by recipients for child support or increases of child support also apply in cases where the payor parent seeks a retroactive reduction of child support or rescission of arrears. I concluded that the following principles apply on a Motion to Change a child support order where the child support payor requests a retroactive decrease of child support, or that child support arrears be reduced or rescinded:

1. In dealing with these claims, the court must consider the following fundamental principles relating to child support which the Supreme Court of Canada set out in D.B.S:[^74]

i. Child support is the right of the child that arises upon the child’s birth and exists independent of any statute or court order. It survives the breakdown of the parents’ relationship.

ii. Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together. The amount of child support owed will vary based upon the income of the payor parent.

iii. The provincial power to regulate child support matters in contexts not involving divorce remains unfettered. Accordingly, when retroactive child support is sought, the court must analyze the statutory scheme in which the application is brought.

iv. The child support analysis must not lose sight of the fact that child support is the right of the child. Accordingly, the child should not be left to suffer if one or both parents fail to monitor child support payments vigilantly.

v. Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.

vi. The specific amounts of child support owed will vary based upon the income of the payor parent. As income levels increase or decrease, so will the parents’ contributions to the needs of the child.

2. A distinction must be drawn between cases where the child support payor had the ability to pay child support when arrears accrued, and then asks for relief from payment of the arrears based on current inability to pay, as opposed to those cases where arrears accumulated due to a change in the payor’s circumstances that affected the payor’s ability to make the child support payments when they came due.

3. The mere accumulation of child support arrears and current inability to pay, without evidence that the payor was unable to make the child support payments when they became due because of a change in circumstances at that time, does not typically justify a rescission or reduction of arrears. In this situation, the court should enforce the outstanding court order, unless there are compelling reasons not to do so. Generally, a reduction or rescission of arrears should only be considered in this type of case where the payor has established on a balance of probabilities that they cannot pay and will not ever in the future be able to pay the arrears.[^75]

4. Where the payor cannot establish a change in circumstances at the time that the arrears accumulated that affected their ability to pay at the time, evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent.

5. Where the child support payor can establish a change in circumstances during the time that arrears were accumulating which rendered them unable for a substantial period of time to make child support payments, the court may provide relief to the payor in a later proceeding to vary the child support order or rescind arrears. In these circumstances, the court may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly.[^76] There is no fixed formula for how the court should exercise its discretion in these circumstances, but the relevant factors and considerations include the following:

a. The nature of the obligation to support, whether contractual, statutory or judicial.[^77]

b. Whether there is a reasonable excuse for the child support payor’s delay in applying for relief.[^78] While unreasonable delay may not negate all potential relief, it is a factor to consider in determining whether the court should exercise its discretion to grant relief and if so, how the remedy should be crafted.[^79]. Even in cases where the child support payor gives the recipient notice of a change in circumstances, delay in actually initiating a court proceeding may be a relevant factor in determining whether to grant relief to the payor. This could arise, for instance, if the payor does not provide the recipient with disclosure which the recipient may need to independently assess the payor’s claim that child support should be changed.

c. The ongoing financial capacity of the child support payor, and in particular, their ability to make payments towards the outstanding arrears.[^80]

d. The ongoing need of the child support recipient and the child.[^81]

e. The conduct of the child support payor, including whether they have made any voluntary payments on account of arrears, whether they have cooperated with enforcement agencies in addressing the issue of child support, whether they have kept the recipient fully apprised of the changes in their circumstances over time as these changes occurred, whether they have complied with obligations and requests for financial disclosure to the child support recipient in an effort to address the child support issue, and any evidence respecting their willingness to support the child or alternatively to avoid their child support obligation. Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission of or reduction of arrears.[^82] Further, failure to disclose a material change in circumstance to the recipient for an extended period of time may also be relevant.[^83]

f. Delay on the part of the child support recipient, even a long delay, in enforcing the child support obligation, is not relevant and does not in and of itself constitute a waiver of the right to claim arrears.[^84]

g. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears.[^85] For example, if a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.[^86] Where the order that the court considers to be appropriate involves payment of substantial arrears and could result in significant hardship to the payor, it may be necessary to retroactively decrease the child support payable, suspend enforcement of arrears for a period of time or establish a schedule for the payment of arrears that is realistic having regard for the payor’s financial situation.[^87]

6. If the court determines that a retroactive reduction of child support is appropriate, it must determine the date from which any change in child support should take effect, and the extent of the reduction. The Supreme Court of Canada in D.B.S., supra, has established that generally, a retroactive child support Order should commence as of the date of effective notice that a request is being made for an adjustment to child support. It further held that in most cases, it will be inappropriate to make a support award retroactive to a date more than three years before formal notice was given of the requested change. These principles apply equally to claims for retroactive downward variation of child support. The effective date of notice is “any indication by the payor parent that child support requires a review and adjustment. Effective notice does not require the payor parent to take legal action; what is required is that the topic be broached.”[^88]

7. However, in the case of retroactive child support reduction or rescission claims, the payor is the party who has the information to support the claim, and therefore effective notice in these cases also entails providing reasonable proof to support the claim for a change to the Order, so that the recipient can independently assess the situation in a meaningful way and respond appropriately. A child support recipient is entitled to expect that the existing order will be complied with, and to arrange their financial affairs respecting their children accordingly, unless they are in receipt of reasonable proof that a relevant change in the payor’s circumstances has occurred. The absence of a disclosure requirement on the payor in determining the date of effective notice in these cases would unfairly impose a burden on the support recipient to attempt to confirm the alleged change in circumstances through their own means in order to decide how to respond to the payor’s claim for an adjustment.

8. Once effective notice is given, a reasonable opportunity should be granted for the parties to enter into negotiations. However, the payor has a duty to initiate proceedings in a timely manner to address the issue if these negotiations are not successful and failure to do so may militate against relief for the Respondent, particularly where the Respondent has failed to provide disclosure of relevant materials to the recipient. [^89]

9. In the case of retroactive reduction or rescission claims, the payor’s circumstances may continue to change from time to time after the date when the initial change in circumstance arose. There is an ongoing obligation on the child support payor to engage in dialogue with the recipient about those changes as they arise, and to provide disclosure of relevant information respecting the Respondent’s circumstances so that the recipient can continue to independently assess the situation and react appropriately. Thus, in these cases, the effective date of notice of the initial change of circumstance may determine the date from which relief for the payor may begin, but there are ongoing notice and disclosure obligations about subsequent changes which, if not satisfied, may impact on the remedy which the court crafts.

10. With respect to the quantum of any retroactive child support order, the Guidelines apply, provided that the date of retroactivity is not prior to the date when the Guidelines came into force, and subject to the principles set out in the statutory scheme under which the Court is operating.[^90]

II. ANALYSIS AND RULING RESPECTING ENTITLEMENT TO MAKE RETROACTIVE CLAIM

[116] Upon considering the factors outlined above in conjunction with the evidence in this case, I conclude that the Respondent has not established a case for a retroactive reduction of child support for the period from January 2009 until he commenced his Motion to Change in August, 2010. In considering this issue, I start with the important point that there was a court order in effect respecting child support which the Respondent did not initiate proceedings to change for a period of approximately eleven months after he unilaterally stopped paying child support. This delay in addressing the issue would be less concerning if I was satisfied that the Respondent took steps to meaningfully address the problem with the Applicant and the Family Responsibility Office during that time period. However, the evidence establishes that he failed to do so.

[117] Dealing first with the period from January 1, 2009 until October 2009, when the Respondent complied with the child support order dated March 28, 2008, there is no evidence that the Respondent gave notice to the Applicant during that time that he wished to revisit the issue of child support. Although the Respondent underwent heart surgery in February 2009 and then began receiving disability benefits until approximately June, 2009, he continued to pay support in accordance with the terms of the March 12, 2008 order and did not go into arrears during the period from February to June 2009. The Respondent stated that he did not seek to change child support at that time because he wanted to meet his child support obligations and did not want to face the stress of starting a court proceeding. The important point from the perspective of a retroactive reduction claim is that the Respondent was able to manage financially during this time period despite the change in his financial circumstances.

[118] The uncontroverted evidence of the Applicant is that she first received notice of the Respondent’s wish to revisit the issue of child support when the Respondent told Mitchell during a telephone conversation on October 16, 2009 that he had lost his job and that the Applicant would not be receiving any more child support. This communication through Mitchell was followed shortly thereafter by a letter from the Respondent’s counsel, Ms. Sapiano, dated October 26, 2009 in which Ms. Sapiano advised the Applicant of the termination of the Respondent’s employment. Ms. Sapiano relayed the Respondent’s position in that letter that child support for Mitchell should terminate as of October, 2009, and that an adjustment of child support would be required based on the change in the Respondent’s income.

[119] Counsel for the Applicant responded promptly to Ms. Sapiano’s letter dated October 26, 2009 by sending correspondence to Ms. Sapiano dated November 10, 2009, requesting that the Respondent provide financial disclosure so that he could properly advise the Applicant regarding the request to adjust child support. Specifically, the Applicant requested income disclosure in accordance with the Guidelines, details including correspondence relating to the Respondent’s severance package, details of any disability benefits which the Respondent received in 2009, and details of the Respondent’s job search efforts. The materials which Mr. Higginson requested from the Respondent were relevant and necessary in order for the Applicant to assess the Respondent’s request to reduce his child support obligation. Counsel for the Applicant stated in submissions that the response to this correspondence was “a deafening silence.” Indeed, there is no evidence before me that the Respondent responded to this request for disclosure or attempted to address or resolve the issue of child support until he issued his Motion to Change on August 16, 2010.

[120] I find that although the Respondent received a six month severance package, with a regular salary continuance until March 24, 2010, he unilaterally ceased paying child support as of October, 2009. He did not make efforts to negotiate the issue of payment of ongoing child support. He did not even make partial child support payments to the Applicant, or contribute to the cost of the medical and dental benefits plans which the Applicant secured after the children lost their eligibility for coverage through Beck in December, 2010. He did not offer to help at all with any of the children’s expenses. There is no evidence that he attempted to address the issue of his accruing arrears with the Family Responsibility Office in the fall of 2009 or from January to August 2010.

[121] Although the Respondent was suffering from health issues, he was able to return to work within four months of his surgery in February 2009 and was successful in negotiating agency relationships with Bulk Chemicals and PGR in early 2010. He earned a significant income in 2009, despite his surgery. These considerations indicate that he had the capacity in 2009 and early 2010 to address the child support issue in a meaningful way, but simply chose not to make this issue a priority.

[122] I find that the Respondent finally made it a priority to address his non-compliance with his child support obligations when this non-compliance began to directly and seriously affect his own personal interests. Specifically, he finally brought the Motion to Change child support after the Family Responsibility Office suspended his licence on July 27, 2010 and notified the Respondent that it intended to make a federal license denial Application. He issued the Motion to Change twenty days later.

[123] I find that from October, 2009 until August 16, 2010, when the Motion to Change was issued, the Applicant was in the dark about the Respondent’s financial situation, whether he would be able to pay child support, and how she should plan or arrange her affairs so as to meet the needs of her children. Even when the Motion to Change and supporting materials were served on her, she did not receive much of the financial disclosure which the Respondent was required to produce pursuant to the Guidelines. The Applicant’s uncontroverted evidence is that there has been a history of the Respondent avoiding disclosure of his financial circumstances, despite the fact that the March 12, 2008 order required the exchange of Income Tax Returns by May 31st of each year. She stated, and I find, that when the Respondent commenced a previous Motion to Change child support in 2007, he stated at the time that he did not have copies of his Income Tax Returns as he had inadvertently misplaced them. When he finally issued the current proceeding on August 16, 2010, he stated that he had still not filed his 2008 and 2009 Income Tax Returns as he still required information from his employer to complete the returns. By the time of trial in December 2011, he had still not produced his 2010 Notice of Assessment and Reassessment.

[124] Throughout the period from October 2009, when the Respondent stopped paying child support, until he started this proceeding in August 2010, the children continued to be in need of support, and the Respondent bore the entire financial responsibility of meeting their needs. The Respondent’s conduct following the termination of his employment from Becker is not reflective of a parent who was concerned about violating an order of this court or ensuring that his children’s financial needs were met. The Respondent’s conduct had the effect of shifting not only the financial responsibility of meeting the children’s needs to the Applicant, but also the burden of trying to do something to resolve the child support impasse. I find that the Applicant cashed in her RRSP savings and utilized her asset base in order to support the family. She suffered emotional stress in part due to the financial pressures which she experienced, and had to begin taking medication for depression.

[125] I have considered the hardship that would result to both parties depending on how I decide the Respondent’s claim for a retroactive reduction of child support. From the Applicant’s perspective, I find that she would struggle greatly to meet the children’s needs if a retroactive reduction of child support results in the determination that there has been an overpayment to her which should be credited towards ongoing support. With respect to the Respondent, his arrears of child support only began to accrue in October 2009. The fact that I am terminating his obligation to pay child support respecting Mitchell effective October 30, 2009 will provide him with some relief. Although his actual income is minimal at this point, I have imputed income to him for the reasons outlined above, and if he was in fact earning that imputed amount, he would be able to make reasonable payments on account of any arrears. Finally, he does not have any other dependants who would be affected by the determination of the retroactive claim. I find that the hardship to the Applicant and the children of allowing a retroactive reduction of child support effective January 2009 would far outweigh the harm to the Respondent of denying the retroactive support claim, provided that a reasonable payment plan is implemented in regard to any arrears of child support that result from my decision.

[126] For all of the foregoing reasons, I conclude that the Respondent has not established a claim for a retroactive reduction of child support for the period from January 2009 until August 2010, when he issued the Motion to Change Final Order. Parents who are unable to pay child support must take reasonable steps to address the issue with the recipient parent as soon as possible. This involves at minimum providing basic disclosure required for the recipient parent to assess the payor’s claim and initiating discussions about how to address the child support issue. To allow a retroactive reduction claim on facts such as the ones in this case would provide an incentive to payor parents to simply announce an inability to pay, ignore child support orders, and turn their back on their responsibilities to their children until the Family Responsibility Office finds the time and resources to pursue enforcement of the order.

ISSUE # 3: CLAIMS RELATING TO CONTRIBUTION TO SECTION 7 EXPENSES

A. Positions of the Parties

[127] The Respondent requests that the orders of Lafrenière, J. dated April 22, 2005 and Pazaratz, J. dated March 12, 2008 be changed to provide that he pay section 7 expenses relating to the children on a proportionate-to-income basis, and only subject to the following conditions:

1. That the Applicant obtain his prior written consent to the section 7 expenses, which consent is not to be unreasonably withheld;

2. That the Applicant provide him with her Income Tax Return and Notice of Assessment for the previous year in order to determine the proportionate share.

3. That the Applicant provide him with particulars of any and all amounts the Applicant receives from third party insurers and government rebates and credits or other reimbursements for such expenses.

4. That the Applicant provide him with receipts for such expenses within thirty days of receipt of same, failing which he will not be required to contribute to them.

[128] In her Response to Motion to Change, the Applicant did not request any specific relief in relation to section 7 expenses. However, during the course of this proceeding and at trial, she requested an order requiring the Respondent to comply with the existing orders respecting section 7 expenses by contributing 50% towards the cost of a number of the children’s expenses which are listed in the document entitled “Extraordinary Expenses,” marked as Exhibit 3 at trial. These expenses are as follows:

Mitchell

2010 Tuition fee for St. Charles Learning Centre $ 150.00

2010 bus tickets and bus passes for school $ 284.00

2011 bus tickets and bus passes for school $ 852.00

Driving lessons $ 600.00

Samantha

Grade 8 graduation

(school trip, dress, shoes and other

Miscellaneous) $ 800.00

Alexander

2009 grade 8 graduation $ 700.00

2009 Rep. baseball tuition $ 750.00

2010 Rep. baseball tuition $1,000.00

2011 Rep. baseball tuition $1,000.00

2010 driving lessons and driver’s

licence test $ 600.00

Medical and Dental Plans

Medical plan for the period

January 2010 until March 2011 $1,397.85

(93.19 per month x 15 months)

Dental plan for the period

January 2010 until March 2011

(46.24 per month x 15 months) $ 693.60

[129] With respect to the expenses claimed on behalf of Mitchell, the Respondent submits that he is not required to contribute to the expenses which the Applicant incurred in 2010 and 2011 for tuition, bus tickets and bus passes, as Mitchell was no longer eligible for child support as of October, 2009. The Applicant did not stipulate when she incurred the expense for Mitchell’s driving lessons, but the Respondent argues that in any event, he should not be required to contribute since the Applicant failed to provide proof that she incurred this expense.

[130] The Respondent objects to contributing to the expenses relating to Samantha’s grade 8 graduation on the basis that his mother, Theresa Szitas, paid for Samantha’s grade 8 graduation dress and shoes, and that the Applicant has not provided receipts for these expenses.

[131] With respect to the expenses relating to Alexander, the Respondent states that he only received notice of the 2009 and 2010 expenses at the Case Conference held on October 28, 2010, and that he never received estimates relating to these expenses before they were incurred. He objects to paying the expense of $1,000.00 claimed for 2011 Rep. baseball on the basis that he has not received a receipt relating to that expense.

[132] The medical and dental expenses which the Applicant claims were on account of the cost of plans which she obtained for medical and dental coverage after the children’s coverage ended through the Respondent’s employment with Becker. Counsel for the Respondent indicated in submissions that the Respondent agrees to pay those expenses on a proportionate-to-income basis, and that he accepts the Applicant’s figures for these expenses.

B. Analysis

[133] Paragraph 3 of the order of Lafrenière, J. dated April 22, 2005 did not stipulate that the Respondent’s contribution to section 7 expenses was conditional on him giving his prior consent to those expenses being incurred. However, it directed the Applicant to provide to the Respondent written estimates before expenses were incurred and receipts of all section 7 expenses before requiring a contribution from the Respondent. The only change which the March 12, 2008 order effected in relation to section 7 expenses was to specify that the Respondent would no longer be required to contribute to the day care payments for the children. Although the April 22, 2005 order does not set out a specific time period within which receipts must be provided, it is implied in such a term that receipts will be provided within a reasonable time frame. To conclude otherwise could result in payor parents being required to contribute significant amounts to section 7 expenses years after the expenses were incurred. Quite apart from any such implied term, section 7(1) of the Guidelines provides that orders relating to section 7 expenses are in the discretion of the court. Delay in providing receipts for expenses is an important consideration in the exercise of this discretion.

[134] The Applicant’s evidence was that she always advised the Respondent of the children’s section 7 expenses. She attached a series of emails from 2007 as Exhibit “D” to her Affidavit sworn October 5, 2011 as proof of having provided the Respondent of notice. However, those emails related to expenses from 2007. Furthermore, the email exchange reflects a willingness on the part of the Respondent to contribute equally to section 7 expenses, and confirms his concern about the Applicant not making requests for contribution to expenses in a timely manner.

[135] With respect to the expenses claimed respecting Mitchell, based on my determination that Mitchell was no longer a child of the marriage as of October 31, 2009, I conclude that the Applicant is not entitled to contribution from the Respondent for the expenses which she has claimed for 2010 and 2011. The remaining expense which she claimed for Mitchell was for driving lessons. A party claiming contribution to section 7 expenses has an obligation to provide evidence that the expense has in fact been incurred, and that it was incurred during the period when the child was eligible for child support. The Applicant did not provide evidence respecting either of these issues in relation to the driving lessons expense for Mitchell, and I therefore find that she is not entitled to contribution from the Respondent for the expense.

[136] The Applicant’s claim for contribution from the Respondent for Samantha’s grade 8 graduation expenses also fails on the basis that she has not provided any receipts relating to these expenses. The evidence of the paternal grandmother Theresa Szitas that she bought Samantha’s graduation dress and shoes raises additional concerns regarding this claim.

[137] With respect to the expenses claimed in relation to Alexander’s grade 8 graduation, although Exhibit 3 indicates that these were incurred in 2009, in fact the receipts relating to these expenses are from 2008. The Applicant did not break these expenses down item by item, but it is apparent that some of the expenses related to clothing and some of them were incurred for a school trip. I have concluded that the Applicant is not entitled to contribution from the Respondent for these expenses for three reasons. First, I am not satisfied based on the evidence before me that the expenses for the clothing qualify as special or extraordinary expenses within the meaning of section 7 of the Guidelines. No evidence was led on this issue, nor were any submissions made on the point. Second, the Applicant did not provide the Respondent with an estimate of these expenses prior to incurring them. Finally, a delay of approximately two years in providing receipts and requesting reimbursement for these expenses is unreasonable.

[138] The Applicant also claims a contribution from the Respondent towards Alexander’s 2009 Rep. baseball tuition. I am not allowing this claim, as there is no evidence before me that she gave the Respondent an estimate of this expense in advance of incurring it. Furthermore, I find based on the evidence before me that she did not produce a receipt relating to this expense or request reimbursement for at least one year after the expense was incurred, and only in response to this litigation. This type of delay in requesting reimbursement is unreasonable and unfairly prejudicial to the payor parent.

[139] The Applicant provided the Respondent with receipts relating to Alexander’s 2010 Rep. baseball tuition ($1,000.00) and 2010 driving lessons and driver’s licence test expenses ($600.00), and requested reimbursement within a reasonable time. The Respondent did not dispute that these were section 7 expenses, and I find that the Applicant is entitled to contribution from the Respondent for these items.

[140] I am not allowing the Applicant’s claim for contribution to Alexander’s 2011 Rep. baseball, as she did not provide any receipts relating to this expense. The evidence of the paternal grandmother Theresa Szitas that Alexander advised her that he was not playing baseball in 2011 raises additional concerns regarding this claim.

[141] With respect to the Applicant’s claim for contribution towards the cost of the medical and dental plans which she obtained for the children for the period from January 2010 to March 2011, the Respondent agrees to contribute to these expenses on a proportionate-to-income basis. I find that the total amount of these expenses for 2010 was as follows:

Medical plan: $93.19 per month X 12 months = $1,118.28

Dental plan: $46.24 per month X 12 months= $ 554.88

TOTAL: $1,673.16

[142] The total amount of the medical and dental plan coverage expenses for 2011 was as follows:

Medical plan: $93.19 per month X 3 months= $ 279.57

Dental plan: $46.24 per month X 3 months= $ 138.72

TOTAL: $ 418.29

[143] Based on the foregoing, the total of the section 7 expenses for which the Applicant is entitled to claim contribution from the Respondent for the year 2010 is as follows:

Medical plan: $1,118.28

Dental plan: $ 554.88

Rep. baseball tuition: $1,000.00

Driving lessons and driver’s licence test: $ 600.00

TOTAL: $3,273.16

[144] The total of the section 7 expenses for which the Applicant is entitled to claim contribution from the Respondent for the year 2011 is $418.29, on account of the expenses relating to the medical and dental plan coverage.

[145] The Respondent requests that the order of Lafrenière J. be changed to provide that the parties contribute to section 7 expenses on a proportionate-to-income basis rather than equally, based on the reduction of his income since 2005. The Applicant’s pleadings do not include a request to change the existing terms relating to the parties’ contribution to section 7 expenses.

[146] Section 7(2) of the Guidelines provides that the guiding principle in determining the amount of the parties’ respective contributions to section 7 expenses is that the expense is shared in proportion to their respective incomes, after deducting the contribution, if any, from the child. This approach is not mandatory, and the court has the ultimate discretion based on the facts of each case to determine how the parties’ respective contributions should be calculated.

[147] The parties agree that the Applicant’s 2010 income was $44,333.90, and that she should be imputed an income of $44,333.90 for 2011. Based on my findings that the Respondent’s imputed income for 2010 was $58,354.00, and that his imputed income as of April 2011 is $65,000.00, a change from equal sharing of section 7 expenses to proportionate-to-income sharing as requested by the Respondent is clearly not advantageous to the Respondent. In any event, there is no evidence before me of any change in circumstances that would warrant a variation of the equal contribution arrangement which the parties negotiated in 2005. I am satisfied on the evidence that the parties intended to share the children’s section 7 expenses equally regardless of their income. For these reasons, and given that the Applicant has not requested changes to the existing terms respecting section 7 expenses, paragraph 2 of the order of Lafrenière, J. dated April 22, 2005, as amended by the paragraph 3 of the order of Pazaratz, J. dated March 12, 2008, shall remain in full force and effect. The Respondent’s 50% share of section 7 expenses for 2010 is therefore $1,636.58, and his 50% share for 2011 is $209.15. The total amount of his share for both years is $1,845.73.

[148] I find based on the evidence that there have been problems between the parties regarding notice of section 7 expense claims, and the Applicant’s timeliness in providing receipts to substantiate these claims. The Respondent requests, inter alia, that the existing terms regarding contribution to section 7 expenses be changed to require his consent to these expenses being incurred. I am not satisfied based on the evidence before me that such a change is necessary or appropriate. None of the expenses which the Applicant has incurred have been excessive or inappropriate. Furthermore, I have concerns that the Respondent would unreasonably withhold consent, based on his failure to pay child support during the period when he was receiving severance pay from Becker, his failure to initiate proceedings to change child support until he was compelled to do so by the enforcement actions of the Family Responsibility Office and his attempt in these proceedings to completely terminate his child support obligations in relation to the children Alexander and Samantha effective January 2011. The Applicant’s failure to provide receipts and request reimbursement for section 7 expenses in a timely manner is of concern, however, and I have made changes to paragraph 3 of the April 22, 2005 order to address this concern.

CALCULATION OF CHILD SUPPORT PAYABLE BY THE RESPONDENT

[149] Based on my findings and rulings in this matter, I calculate the Respondent’s child support obligations since October 1, 2009 as set out below. This calculation is based on my finding that the Respondent was not in arrears of child support as of September 30, 2009, and that the Respondent has continued to pay child support in the amount of $400.00 per month since this trial concluded, as he is required to do pursuant to the temporary order dated October 28, 2010.

[150] For the reasons outlined above, the Respondent is not entitled to claim a retroactive reduction of child support for the period from January 1, 2009 until July 31, 2010. Accordingly, for the month of October 2009, the Respondent owed the Applicant child support for three children in the amount of $2,242.00, based on the terms of the order of Pazaratz, J. dated March 12, 2008.

[151] The Respondent’s obligation to pay child support for the child Mitchell terminated as of October 31, 2009. For the period from November 1, 2009 until July 31, 2010, the Respondent therefore owed the Applicant child support for Alexander and Samantha only, in the amount of $1,728.00 per month, which was the Table amount under the Guidelines for two children based on the Respondent’s income as set out in the March 12, 2008 order of $127,206.10. The total amount of child support which the Respondent should have paid for the period from November 1, 2009 until July 31, 2010 was therefore $1,728.00 x 9 months= $15,552.00.

[152] For the period from August 1, 2010 until December 31, 2010, the Respondent owed the Applicant child support for Alexander and Samantha in the amount of $878.00 per month, which was the Table amount under the Guidelines for two children based on the Respondent’s imputed 2010 income of $58,354.00. Accordingly, the total amount of child support which the Respondent should have paid during this period was $878.00 x 5 months = $4,390.00.

[153] For the period from January 1, 2011 until March 31, 2011, the Respondent owed the Applicant child support for Alexander and Samantha in the amount of $359.00 per month, which was the Table amount under the Guidelines for two children based on the Respondent’s imputed income of $23,750.00 during that time period. The total amount which he should have paid for this period was therefore $359.00 x 3 months = $1,077.00.

[154] From April 1, 2011 until December 31, 2011, the Respondent should have paid the Applicant child support in the amount of $972.00 per month, which was the Table amount for two children under the Guidelines based on the Respondent’s imputed income of $65,000.00. The total amount payable over this period was therefore $972.00 x 9 months=$8,748.00.

[155] Effective January 1, 2012, the Respondent’s child support obligation is $966.00 per month, which is the Table amount under the revised Guidelines for two children, based on his imputed income of $65,000.00. The total amount which he should have paid thus far in 2012 is therefore $966.00 x 3 months = $2,898.00.

[156] Based on the foregoing calculations, the total Table amount of child support which the Respondent should have paid from October 1, 2009 until March 2012 was $34,907.00. The total which he owes on account of section 7 expenses for 2010 and 2011 is $1,845.73. Accordingly, the Respondent should have paid a total of $36,752.73 for child support for the period from October 1, 2009 until March 2012. I find that the total amount of child support which he has actually paid during this period is as follows:

Lump Sum paid in March 2010 $11,710.00

November 1, 2010 to March 1, 2012 $400.00 X 17 = $ 6,800.00

TOTAL: $18,510.00

[157] The Respondent is therefore in arrears of child support in the amount of $18,242.73. The Respondent’s current financial situation is such that it will be difficult for him to pay these arrears off. Accordingly, a reasonable payment arrangement for arrears is necessary. I have given the Respondent a period of six months during which enforcement of arrears will be suspended. Thereafter, arrears will be payable at the rate of $150.00 per month.

TERMS OF THE ORDER TO ISSUE

[158] Based on the foregoing, a final order shall issue upon the following terms and conditions:

1. The Respondent’s claim for a retroactive reduction of child support payable to the Applicant for the children Mitchell Szitas, born October 16, 1991 (“Mitchell”), Alexander James Szitas, born January 5, 1994 (“Alexander”) and Samantha Lauren Szitas, born November 4, 1997 (“Samantha”) for the period from January 1, 2009 to October 31, 2009 is dismissed.

2. The Respondent’s claim for a retroactive reduction of child support payable to the Applicant for the children Alexander and Samantha with respect to the period from November 1, 2009 until July 31, 2010 is dismissed.

3. The Respondent’s claim for a termination of child support payable to the Applicant for the children Alexander and Samantha effective January 1, 2011 is dismissed.

4. The Respondent’s claim for a change to paragraph 2 of the Order of the Honourable Madam Justice Lafrenière dated April 22, 2005 to provide for a sharing of section 7 expenses on a proportionate-to-income basis is dismissed.

5. Paragraph 1 of the order of the Honourable Mr. Justice Pazaratz dated March 12, 2008 is changed as follows:

a. The Respondent’s obligation to pay the Applicant child support for the child Mitchell is terminated effective October 31, 2009.

b. Commencing November 1, 2009 and continuing on the first day of each month that follows until July 31, 2010, the Respondent shall pay the Applicant child support for the children Alexander and Samantha in the amount of $1,728.00 per month in accordance with the Tables under the Federal Child Support Guidelines (the “Guidelines”).

c. Commencing August 1, 2010 and continuing on the first day of each month that follows until December 31, 2010, the Respondent shall pay the Applicant child support for the children Alexander and Samantha in the amount of $878.00 per month in accordance with the Tables under the Guidelines based on the Respondent’s imputed 2010 income of $58,354.00.

d. Commencing January 1, 2011 and continuing on the first day of each month that follows until March 31, 2011, the Respondent shall pay the Applicant child support for the children Alexander and Samantha in the amount of $359.00 per month in accordance with the Tables under the Guidelines based on an imputed annual income of $23,750.00.

e. Commencing April 1, 2011 and continuing on the first day of each month that follows until December 31, 2011, the Respondent shall pay the Applicant child support for the children Alexander and Samantha in the amount of $972.00 per month in accordance with the Tables under the Guidelines based on an imputed annual income of $65,000.00.

f. Commencing January 1, 2012 and continuing on the first day of each month that follows, the Respondent shall pay the Applicant child support for the children Alexander and Samantha in the amount of $966.00 per month in accordance with the Tables under the Guidelines based on an imputed annual income of $65,000.00.

6. Arrears of child support owed by the Respondent to the Applicant for the children Mitchell, Alexander and Samantha arising from the terms of paragraph 5 herein, and on account of section 7 expenses, are fixed in the amount of $18,242.73 as of March 31, 2012. This fixed sum is based on the expectation that the Respondent has remained in compliance with his obligation to pay $400.00 per month in child support pursuant to the temporary order dated October 28, 2010 since December 2011. In the event that child support arrears have accrued since December 1, 2011, the total amount of his arrears shall be adjusted upward to include any arrears that have accrued since that time.

7. Enforcement of the child support arrears referred to in paragraph 6 herein shall be suspended until September 30, 2012. Subject to paragraph 8 herein, the Respondent shall pay these arrears to the Applicant at the rate of $150.00 per month commencing October 1, 2012 and continuing on the first day of each month that follows until the arrears are paid in full.

8. Paragraph 7 herein does not derogate from the right of the Family Responsibility Office to enforce additional arrears of child support owed by the Respondent to the Applicant other than through garnishment of the Respondent’s income, including but not limited to garnishment of government monies paid to the Respondent.

9. Paragraph 3 of the order dated April 22, 2005 is changed by substituting that paragraph with the following terms and conditions:

a. The Applicant shall provide the Respondent with written estimates of any section 7 expenses for which she seeks reimbursement from the Respondent prior to incurring the expenses.

b. The Applicant shall provide the Respondent with proof of any section 7 expenses for which she seeks reimbursement from the Respondent in the form of either receipts or other documentary evidence within thirty days of incurring them, failing which the Respondent shall not be required to contribute to the expense(s).

c. The Applicant shall provide the Respondent with particulars of any and all amounts which she receives from third party insurers in relation to section 7 expenses for which she claims reimbursement, and any subsidies, benefits or income tax deductions or credits available to her in connection with these expenses. The amount of the Respondent’s contribution to section 7 expenses shall take into account any such third party payments, subsidies, benefits, deductions and credits.

d. The Respondent shall reimburse the Applicant for his share of section 7 expenses within thirty days of receiving the proof referred to in subparagraph (b) herein.

10. The Applicant shall advise the Respondent immediately if either Alexander or Samantha are no longer in full-time attendance at an educational institution, and shall provide the Respondent with copies of the children’s transcripts and attendance records twice each year if they begin attending post-secondary education programs as a condition of receiving ongoing child support.

11. If the parties require clarification or directions respecting any terms of this order, or consent adjustments to the order arising out of calculation issues, they may contact the Trial Coordinator’s office and arrange a date before me to speak to the matter.

12. A Support Deduction Order shall issue.

13. If either party wishes to pursue a claim for costs in connection with this matter, they shall serve and file written submissions, relevant case-law, a detailed Bill of Costs and copies of any Offers to Settle by April 16, 2012. Any reply submissions shall be served and filed by April 30, 2012. If either party fails to comply with the April 16, 2012 deadline, there shall be no costs payable to that party.

The Honourable Madam Justice D. Chappel

Released: March 21, 2012

[^1]: Federal Child Support Guidelines, SOR/97-175, as amended.

[^2]: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended.

[^3]: Geran v. Geran, 2011 SKCA 55, 2011 CarswellSask 333 (Sask. C.A.).

[^4]: Divorce Act, section 17(4).

[^5]: Divorce Act, section 17(6.1).

[^6]: D.B.S. v. S.R.G.; L.J.W. v. T.A.R; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] S.C.J. No. 37 (S.C.C.) (hereinafter referred to as “D.B.S”); Ethier v. Skrudland, 2011 SKCA 17 (Sask. C.A.); Geran v. Geran, Supra.

[^7]: D.B.S., Ibid.

[^8]: Brown v. Brown, 2010 NBCA 5, 2010 CarswellNB 30 (N.B.C.A.); Haisman v. Haisman, 1994 ABCA 249, 1994 CarswellAlta 179 (C.A.); leave to appeal to the S.C.C. refused, [1995] 3 S.C.R. vi (S.C.C.).

[^9]: Haisman v. Haisman, Ibid.

[^10]: Rebenchuk v. Rebenchuk, 2007 MBCA 22, 2007 CarswellMan 59 (Man. C.A.); Thompson v. Ducharme, 2004 MBCA 42 (Man. C.A.).

[^11]: Rebenchuk v. Rebenchuk, Ibid.; Olson v. Olson, 2003 ABCA 56 (Alta. C.A.); MacLennan v. MacLennan, 2003 NSCA 9 (N.S.C.A.); Whitton v. Whitton (1989), 1989 CanLII 8868 (ON CA), 21 R.F.L. (3d) 261 (Ont. C.A.).

[^12]: Caterini v. Zaccaria, 2010 ONSC 6473, 2010 CarswellOnt 9344 (Ont. S.C.J.).

[^13]: Farden v. Farden, (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C.Master).

[^14]: Caterini v. Zaccaria, Supra.; Wahl v. Wahl, 2000 ABQB 10, 2000 CarswellAlta 13 (Alta. Q.B.).

[^15]: Law v. Law (1986), 1986 CanLII 6291 (ON SC), 2 R.F.L. (3d) 458 (Ont. H.C.).

[^16]: Whitton v. Whitton, Supra.

[^17]: Law v. Law, Supra.

[^18]: Whitton v. Whitton, Supra.

[^19]: Law v. Law, Supra.

[^20]: Whitton v. Whitton, Supra.

[^21]: Whitton v. Whitton, Ibid.

[^22]: Caterini v. Zaccaria, Supra., at para. 146.

[^23]: Caterini v. Zaccaria, Ibid., at para. 176; Rebenchuk v. Rebenchuk, Supra., at para. 56.

[^24]: Law v. Law, Supra.; Olszewski v. Willick, 2009 CarswellSask 774 (Sask. C.A.).

[^25]: Olszewski v. Willick, Ibid.

[^26]: Casademont v. Casademont (2007), 44 R.F.L. (6th) 287 (Ont. S.C.J.).

[^27]: Caterini v. Zaccaria, Supra.

[^28]: Jackson v. Jackson, 1972 CanLII 141 (SCC), [1973] S.C.R. 205 (S.C.C.).

[^29]: Geran v. Geran, Supra., at para 15.

[^30]: Whitton v. Whitton, Supra.

[^31]: Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C.Master).

[^34]: Haist v. Haist, 2010 ONSC 1283, 2010 83 R.F.L. (6th) 147 (Ont. S.C.J.).

[^35]: Caterini v. Zaccaria, Supra.

[^36]: Darlington v. Darlington (1997), 1997 CanLII 3893 (BC CA), 32 R.F.L. (4th) 406 (B.C.C.A); Wesemann v. Wesemann (1999), 1999 CanLII 5873 (BC SC), 49 R.F.L. (4th) 435 (B.C. S.C.) at para. 11.

[^37]: Scott v. Scott, 2004 CarswellNB 587; Jorden v. Jorden (1995), 1995 CanLII 16736 (NB QB), 14 R.F.L. (4th) 97 (N.B.Q.B.); Greening v. Mills, 2006 CarswellNfld 61.

[^38]: Coghill v. Coghill, 2006 CanLII 21778 (ON SC), [2006] O.J. No. 1489 (Ont. S.C.J.); Lee v. Lee, 1998 CanLII 18000 (NL CA), [1998] N.J. No. 247 (Nfld. C.A.).

[^39]: Bish v. Bish, [2007] O.J. No. 3367 (Ont. S.C.J.).

[^40]: Nelson v. Nelson, 2005 CarswellNS 18 (N.S.S.C.); Kimla v. Golds, 2005 CarswellOnt 1000 (S.C.J.); Bonthron v. Bonthron, 2004 CarswellOnt 96 (S.C.J.); Lemmon v. Lemmon, 2004 CarswellOnt 771 (S.C.J.), additional reasons at 2004 CarswellOnt 1541 (S.C.J.).

[^41]: Bak v. Dobell, 2007 ONCJ 170, [2007] O.J. No. 1498 (Ont. C.A.); Riel v. Holland, 2003 CanLII 3433 (ON CA), [2003] O.J. No. 3901, 67 O.R. (3d) 417 (Ont. C.A.).

[^42]: Homsi v. Zaya, 2009 ONCA 322, 2009 CarswellOnt 2068 (Ont. C.A.), additional reasons 2009 Carswell Ont 3112 (Ont. C.A.); Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 2002 CarswellOnt 3228 (Ont. C.A.), additional reasons 2003 CanLII 48241 (ON CA), 2003 CarswellOnt17 (Ont. C.A.).

[^43]: Drygala v. Pauli, Ibid.; L.(N). V. P. (B.), 2000 CanLII 22516 (ON SC), 2000 CarswellOnt 2487 (Ont. C.J.).

[^44]: West v. West, 2001 CanLII 28216 (ON SC), [2001] O.J. No. 2149 (Ont. S.C.J.).

[^45]: Hanson v. Hanson , 1999 CanLII 6307 (BC SC), 1999 CarswellBC 2545 (B.C.S.C.); L.(N). V. P. (B.), Supra.

[^46]: Lawson v. Lawson, 2006 CanLII 26573 (ON CA), 2006 CarswellOnt 4789 (Ont. C.A.); Blake v. Blake, 2000 CarswellOnt 2477 (Ont. S.C.J.).

[^47]: Barta v. Barta, 2005 CarswellOnt 74 (S.C.J.); M. (S.D.) v. M. (K.F.), 2004 CarswellBC 70 (S.C.); Quintel v. Quintel, 1997 CarswellOnt 3213 (Ont. Ct. Gen. Div.); D. (P.) v. D. (C.), 201 CarswellNB 442 (N.B.Q.B.)

[^48]: Daulby v. Daulby, 2007 CarswellOnt 7842 (Ont. S.C.J.).

[^49]: Korwin v. Potworowski, 2007 CarswellOnt 6852 (Ont. C.A.).

[^50]: W. (K.) v. W. (A.), 2004 CarswellNfld 22 (N.L.T.D.); Jacques v. Gareau de Recio, 2006 CarswellSask 204 (Sask. Q.B.).

[^51]: Bekkers v.Bekkers, 2008 CarswellOnt 173 (Ont. S.C.J.); Joy v. Mullins, 2010 CarswellOnt 7477 (Ont. S.C.J.).

[^52]: R.(P.C.J.) v. R. (D.C.), 2003 CarswellBC 788 (B.C.C.A.); Manchester v. Zajac, 2011 CarswellOnt 13546 (Ont. S.C.J.); Joy v. Mullins, Ibid.; Williams v. Williams, 2011 CarswellOnt 6588 (Ont. S.C.J.); Wilson v. Wilson, 2011 ONCJ 103, 2011 CarswellOnt 1630 (Ont. C.J.).; Meade v. Meade, 2002 CanLII 2806 (ON SC), 2002 CarswellOnt 2670 (Ont. S.C.J.)

[^53]: Orser v. Grant, 2000 CarswellOnt 1354 (Ont. S.C.J.).

[^54]: Hauger v. Hauger, 2000 CarswellAlta 958 (Alta. Q.B.); Williams v. Williams, Supra.

[^55]: Osmar v. Osmar, 2000 CanLII 22530 (ON SC), 2000 CarswellOnt 1928 (Ont. S.C.J.).

[^56]: D.B.S., Supra.

[^57]: Lemmon v. Lemmon, 2004 CarswellOnt 771 (S.C.J.), additional reasons at 2004 CarswellOnt 1541 (S.C.J.).

[^58]: R.(P.C.J.) v. R. (D.C.), Ibid.

[^59]: Manchester v. Zajac, Supra.

[^60]: Cook v. Cook, 2011 CarswellOnt 10276 (Ont. S.C.J.).

[^61]: Osmar v. Osmar, Supra.

[^62]: Wilson v. Wilson, Supra.

[^63]: Cornelius v. Andres, 1999 CarswellMan 86 (Man. C.A.).

[^64]: Sydor v. Sydor, 2011 CarswellMan 79 (Man. Q.B.).

[^65]: Joy v. Mullins, Supra.

[^66]: Trueman v. Trueman, 2000 ABQB 780, [2000] A.J. No. 1301 (Alta. Q.B.).

[^67]: Joy v. Mullins, Supra.; Trueman v. Trueman, Ibid.

[^68]: Cook v. Cook, Supra.; Joy v. Mullins, Ibid.; Trueman v. Trueman, Supra.

[^69]: Trueman v. Trueman, Supra.

[^70]: Trueman v. Trueman, Ibid.

[^71]: Williams v. Williams, Supra.; Riel v. Holland, Supra.; Orser v. Grant, Supra.; Joy v. Mullins, Supra.

[^72]: Corcios v. Burgos, 2011 CarswellOnt 3910 (Ont. S.C.J.)

[^73]: D.B.S., Supra.

[^74]: D.B.S., Ibid.

[^75]: Haisman v. Haisman, Supra.; Gray v. Gray, (1983), 1983 CanLII 4531 (ON SC), 32 R.F.L. (2d) 438 (Ont. H.C.).

[^76]: Haisman v. Haisman, Ibid.

[^77]: Gray v. Gray, Supra.; Filipich v. Filipich, 1996 CanLII 1294 (ON CA), 1996 CarswellOnt 3263 (Ont. C.A.); DiFrancesco v. Couto, 2001 CanLII 8613 (ON CA), 2001 CarswellOnt 3858 (Ont. C.A.)).

[^78]: D.B.S., Supra.; Gray v. Gray, Ibid.; Filipich v. Filipich, Ibid.; DeFrancesco v. Couto, Ibid.

[^79]: M.(D.) v. A. (S.), 2008 CarswellNS 367 (N.S.F.C.).

[^80]: Gray v. Gray, Supra.; Filipich v. Filipich, Supra.; DiFrancesco v. Couto, Supra.; Malleye v. Brereton, 2007 ONCJ 216, 2007 CarswellOnt3037 (Ont. C.J.); Vaughan v. Vaughan, 2007 CarswellOnt 184 (S.C.J.)).

[^81]: D.B.S., Supra.; Gray v. Gray, Ibid.; Filipich v. Filipich, Ibid.; DiFrancesco v. Couto, Ibid.; Malleye v. Brereton, Ibid.; Vaughan v. Vaughan, Ibid.

[^82]: D.B.S., Supra.; DiFrancesco v. Couto, Ibid.

[^83]: M.(D.) v. A.(S.), Supra.

[^84]: Haisman v. Haisman, Supra.; Brown v. Brown (2010), 76 R.F.L. (6th) 33, 910 A.P.R. 323, 353 N.B.R. (2d) 323, 315 D.L.R. (4th) 293, 2010 CarswellNB 30, 2010 CarswellNB 31, 2010 NBCA 5 (N.B. C.A.).

[^85]: Gray v. Gray, Supra.; Filipich v. Filipich, Supra.; DiFrancesco v. Couto, Supra.;, D.B.S., Supra.

[^86]: M.(D.) v. A. (S.), Supra.

[^87]: Haisman v. Haisman, Supra.;, M.(D.) v. A. (S.), Supra.

[^88]: M.(D.) v. A. (S.), Ibid.

[^89]: M.(D.) v. A(S.), Ibid.

[^90]: D.B.S., Supra.; M.(D.) v. A.(S.)., Ibid.