COURT FILE NO.: FS-11-70950-00

DATE: 20140718

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ANTONIA PATMANIDIS

Barbara Barnett, for the Applicant

Applicant

• and -

THEODORE PATMANIDIS

Theodore Patmanidis, on his own behalf

Respondent

HEARD: March 26, 27, 31; April 1, 2, 2014

REASONS FOR JUDGMENT

TZIMAS J.

INTRODUCTION

[1] The Applicant, Antonia Patmanidis (Ms. Patmanidis), commenced this Application against the Respondent, Theodore Patmanidis (Mr. Patmanidis), on January 7, 2011. Ms. Patmanidis and Mr. Patmanidis are parents of Lukas Patmanidis, born July 15, 2005, and Philip Patmanidis, born March 25, 2008.

[2] By the time the trial was heard, there were essentially three issues left for the court’s determination: a) child custody and access; b) child support; and c) section 7 expenses.

[3] Mr. Patmanidis chose to represent himself at trial. The court provided him with its “Memorandum for Trial” that sets out some practical and procedural matters with respect to the trial process and serves only as a general guide to the trial process. Mr. Patmanidis was also encouraged to seek the guidance of duty counsel.

[4] The trial proved to be particularly challenging and emotionally charged because of Mr. Patmanidis’ significant unpreparedness for trial and because of certain dramatic allegations that he put before the court in his opening submissions. Although those allegations were eventually withdrawn, Mr. Patmanidis’ conduct throughout the trial caused substantial delay.

[5] As a final observation, I am mindful that the children may read this judgment at some point in the future. Before the court delves into the issues and given the challenging decisions that have to be taken in very difficult circumstances, it is important that both Lukas and Philip know that regardless of their parents’ difficulties and differences, they are both committed to them and they love them very much.

BACKGROUND

A. AGREED STATEMENT OF FACTS

[6] Ms. Patmanidis served Mr. Patmanidis with a Request to Admit certain facts. Mr. Patmanidis did not respond to them. His lack of response will have implications on the issue of legal costs. At trial, however, Mr. Patmanidis adopted the vast majority of the proposed admissions. It is therefore useful to start this discussion with the Agreed Statement of Facts:

a. The parties were married on May 19, 2002 and separated on May 30, 2010.

b. There are two children of the marriage, namely Lukas Patmanidis, born July 15, 2005 and Philip Patmanidis, born March 25, 2008.

c. The youngest child, Philip, was born with Downs Syndrome and has special needs resulting from this condition requiring that he attend numerous appointments and receive special care and attention as he develops.

d. Philip has scheduled medical appointments at least twice weekly.

e. The Respondent / Father was employed throughout the marriage as a teacher.

f. One year prior to the parties’ separation, the Respondent / Father earned an income of between $65-75,000 per year.

g. Following the separation, the Respondent / Father stopped teaching and devoted all of his time to his real estate work on a full time basis.

h. The Applicant / Mother was employed throughout the marriage and up to August 2012 as a travel/marketing agent earning an income of approximately $50,000 per year.

i. In August 2012, the Applicant / Mother was laid off her employment.

j. In June 2011, the Respondent / Father agreed to pay child support based on the Guidelines for the two children based on an income of $35,000.

k. As of the date of trial, the Respondent / Father was in support arrears in the sum of approximately $8,000.

l. As of the date of trial, the Respondent / Father owed an amount of $2,775 representing his share of the children’s daycare fees, dental costs, and summer camp expenses from February 2012 to August 2012.

m. The Office of the Children’s Lawyer (“OCL”) was appointed to assist with the issue of custody and access for Lukas and Philip. Mr. Todd Perreault, a Clinical Investigator, filed the results of his investigation on or about November 22, 2011. That report included terms that the parties have a joint custodial arrangement with the children’s primary residence remaining with the Applicant / Mother and the Respondent / Father having structured access on alternate weekends from Friday after school to Sunday at 8:00 p.m. and every Wednesday from after school or daycare to 8:00 p.m.

n. The parties’ relationship greatly deteriorated since the November 22, 2011 OCL report.

o. In August of 2012 the Respondent / Father left a message for the Applicant / Mother and provided a signed letter advising that he no longer wanted to have a relationship with the children and wanted to forego custody of them.

p. Since August 2012 the Respondent / Father has had little contact with the children and his access to them has been sporadic at best.

q. The Respondent / Father initially refused to permit the older child Lukas to be anaesthetized in order for him to undergo the necessary dental treatments.

r. As a result of the Respondent / Father’s refusal to permit the dental treatment to move ahead, Lukas was denied the opportunity to have this treatment completed, and the Applicant / Mother lost the ability to claim the treatment given that her work benefits expired at the end of January 2013.

s. Lukas underwent the dental treatment after January 2013.

t. In September 2012 the Respondent / Father stopped making payments towards the children’s daycare.

u. The Applicant / Mother moved back with her mother, the children’s maternal grandmother, in August of 2012 after she was laid off from her employment. The home is located in Mississauga, Ontario.

v. The Respondent / Father currently resides at his parent’s home in Woodbridge, Ontario.

B. Ms. Patmanidis’ Evidence

[7] In addition to these agreed facts, Ms. Patmanidis testified that when she and Mr. Patmanidis met, they had a really good relationship. Their activities were family-oriented.

[8] Gradually they started encountering various difficulties. Mr. Patmanidis worked on and off at various jobs at CDI College and at Sheridan College. After a while he gave up those jobs and wanted to manufacture poker tables. This change in Mr. Patmanidis’ employment introduced significant financial stress. Ms. Patmanidis said that they never had enough money. Both Ms. Patmanidis’ and Mr. Patmanidis’ parents assisted them with their various bills and expenses.

[9] Philip was born with Downs Syndrome. The court developed the sense that the stress that already existed in this family was compounded as a result of Philip’s particular needs. Ms. Patmanidis explained that from day one Philip had to undergo various testing as well as constant therapy, counseling and support. Ms. Patmanidis attended all of the appointments. Mr. Patmanidis’ attendance was intermittent at best. He increased his participation during the period when the OCL conducted its investigations.

[10] It should be noted that Ms. Patmanidis’ commitment to Philip, her explanations of the various treatments and therapies for Philip and her tracking his development revealed a mother who has been most courageous, caring, positive and who has developed a very deep and sensitive understanding of Philip’s various needs. Philip could not have a better advocate in his mother for his various strengths and additional needs. Despite Mr. Patmanidis’ efforts to discredit Ms. Patmanidis during the cross-examination, her understanding of Philip’s needs and appreciation of Philip’s various requirements reflected a parent beyond any reproach and commanded this court’s admiration.

[11] Ms. Patmanidis spoke with a similar enthusiasm for her older son Lukas. She talked about the close relationship between the two boys and emphasized just what a great team the two boys were. Lukas was described as a very well-adjusted eight year old boy.

[12] With respect to the communications between Ms. Patmanidis and Mr. Patmanidis, Ms. Patmanidis explained that they increasingly became very combative and difficult. She admitted very regrettably that some of the confrontations were in front of Lukas and that they involved pushing and hitting. Ms. Patmanidis acknowledged that the language was not good and that the police had to be called on two occasions. She said that she was not proud of that behaviour but that both she and Mr. Patmanidis were responsible for those confrontations. Ms. Patmanidis attended some counseling to deal with these stresses. She said that Mr. Patmanidis refused to participate in any counselling.

[13] Ms. Patmanidis also explained that her relationship with Mr. Patmanidis continued to deteriorate. In the period between June and August 2011, although Mr. Patmanidis would come to the appointments for Philip, he was very confrontational and went as far as to accuse Ms. Patmanidis and her family for Philip’s condition. She said that Mr. Patmanidis put her down; he accused her of being a bad mother, that she hit the children and that she did not teach the children anything. If the children got sick, Ms. Patmanidis said that Mr. Patmanidis would accuse her of failing to take good care of them.

[14] On the subject of custody, Ms. Patmanidis made it clear that her original preference was to have joint custody and parenting for the boys. She said that she wanted Mr. Patmanidis to be part of the children’s lives and she never kept the children away from Mr. Patmanidis. In the same vein, Ms. Patmanidis did not dispute the recommendations of the Children’s Lawyer’s report through Todd Perreault in favour of joint custody, with primary residence with Ms. Patmanidis and a very generous access schedule.

[15] However, Ms. Patmanidis’ views changed after November 2011 and the delivery of the report. The communications deteriorated, Mr. Patmanidis stopped his access with the children and eventually any communications that did occur were channeled through Lukas or through Mr. Patmanidis’ mother.

[16] In August of 2012, Mr. Patmanidis sent a letter to Ms. Patmanidis advising her that he no longer wanted to have either custody or access with his children. Mr. Patmanidis’ gradual withdrawal was especially traumatic for the children because they missed their father, they wanted to have a relationship with him and they could not understand when he cancelled the access visits.

[17] To Ms. Patmanidis’ credit, she continued to encourage and maintain a good relationship with Mr. Patmanidis’ mother, as it was important to her that the children have a good relationship with their grandparents.

[18] In the fall of 2013, Mr. Patmanidis resumed some visits with the boys. However, he was unable to maintain a schedule because he did not have his own space to bring the children. By the fall of 2013, he was living with his parents and was limited by the activities at that household. For example, on one occasion when Mr. Patmanidis’ father was not feeling well, Mr. Patmanidis cancelled the visit with his children because he could not bring the children to the house. Similarly, when Mr. Patmanidis’ sister was studying for her exams, Mr. Patmanidis cancelled the access visits so as to accommodate his sister’s need of quiet at the house.

[19] Mr. Patmanidis’ access was further compromised for a period of time when his driver’s license was suspended for his failure to keep up with his support obligations. Then when his license was restored, Mr. Patmanidis did not have access to a car. Although Ms. Patmanidis and Mr. Patmanidis’ mother shared the driving to facilitate the children’s transportation, access remained intermittent.

[20] On the subject of activities, Ms. Patmanidis explained that Lukas attended some day camps, that he took karate lessons and that he was also signed up for soccer. Both Lukas and Philip took Greek dancing lessons. They also took swimming and skating lessons. Ms. Patmanidis said that she covered all of those expenses. She also assumed Mr. Patmanidis’ share of the daycare expenses when it came to her attention that he was in arrears.

[21] For Philip, Ms. Patmanidis reviewed a host of supports that included speech therapy, occupational therapy and a teaching assistant who was assigned to support Philip in the kindergarten classroom.

[22] Turning to the children’s living arrangements, Ms. Patmanidis explained that she and the boys were living with her mother and sister. She and the boys had access to a master bedroom and an en suite bathroom. They also have access to the rest of the home. Ms. Patmanidis explained that the boys have home cooked meals, and that her mother and sister are there to assist with some after school care and sometimes take the boys to their school buses. On the two nights a week when Ms. Patmanidis has to work evening hours, her mother is there to care of the boys.

[23] On the subject of the children’s schooling, Ms. Patmanidis explained that initially, Mr. Patmanidis’ mother agreed to pay for private school tuition for Lukas. After she and Mr. Patmanidis separated, Ms. Patmanidis insisted on paying for 50 per cent of the tuition costs. Eventually, she could not afford that expense. Once Philip was ready for school, Ms. Patmanidis also came to the conclusion that it was important for the boys to attend the same school and to avoid any differentiation between them.

C. Mr. Patmanidis’ Testimony

[24] Turning to Mr. Patmanidis’ evidence at the beginning of the trial, Mr. Patmanidis presented as a very angry person. His allegations against Ms. Patmanidis validated Ms. Patmanidis’ testimony of somebody who was confrontational and who had nothing good to say about her. That perspective however, changed very dramatically by the end of the trial. Ultimately, Mr. Patmanidis conceded that Ms. Patmanidis was an excellent mother. He said that she was very caring and that it was he who had serious challenges with which to deal and resolve.

[25] Mr. Patmanidis also confirmed that his communications with Ms. Patmanidis had all but stopped. In his review of the various communications concerning the children, Mr. Patmanidis testified that he did not feel that he had adequate information to make a particular decision. Mr. Patmanidis’ inability to give direction or to make particular decisions in relation to the boys was evident in the exchanges concerning the problems with Lukas’ cavities and his engagement with various therapies for Philip.

[26] When pressed on the reasons for the communication difficulties, Mr. Patmanidis testified that people would not answer his questions and that they evaded his concerns. He went on to say that although he trusted Ms. Patmanidis, he could not understand why she would not answer what he considered to be simple questions.

[27] Against that testimony, on cross-examination, Mr. Patmanidis’ complaints were far more nuanced and ultimately questionable. To be clear, in some of the examples before the court, Mr. Patmanidis raised valid concerns. But, he was also provided with all the information he needed to make informed decisions. The problem seemed to lie in Mr. Patmanidis’ inability to process or accept the information given to him. Repeatedly, Mr. Patmanidis could not see the forest for the trees. In the result, the communications were often frustrated and ineffective.

[28] Regarding access with the children, Mr. Patmanidis confirmed that he could not remember when he last had a Wednesday visit with them. However, he told the court that he wanted to resume his mid-week access.

[29] On the subject of the letter where he advised Ms. Patmanidis that he would walk away from custody and access, Mr. Patmanidis explained that he was having an emotional breakdown and could not see how he could maintain a relationship with his children. He also explained that access became dependent on his access to a car and his parents being agreeable to having the children over at their home.

[30] Mr. Patmanidis also blamed his own parents for making his access with his own children more difficult. He said that he could not understand their attitude towards him. Those allegations did not align with Ms. Patmanidis’ description of her mother in-law’s efforts to maintain a relationship with her grandchildren. One has to wonder whether there was some other explanation to the grandparents’ conduct and whether they were really trying to encourage Mr. Patmanidis to take ownership of his obligations for his two sons.

[31] Regarding Mr. Patmanidis’ support obligations, Mr. Patmanidis explained that he was in dire financial straits and simply could not meet his obligations. From the beginning of the trial, Mr. Patmanidis was anxious that the court appreciate that he suffered from attention deficit disorder (“ADHD”) and that his condition impacted all aspects of his life, including his ability to focus and to find adequate employment.

[32] Parenthetically, Mr. Patmanidis’ erratic demeanour during the trial, his inability to grasp and accept certain realities and the extent to which he was disorganized in his thoughts suggested that Mr. Patmanidis might indeed require some psychological guidance and support for his difficulties. On the other hand, Mr. Patmanidis did not submit any evidence to the court concerning his alleged condition. Mr. Perreault’s Clinical Investigation Report made reference to a possible ADHD condition but ultimately he concluded that he had no concerns with respect to Mr. Patmanidis’ cognitive, developmental or parenting capacity.

[33] In terms of Mr. Patmanidis’ education, Mr. Patmanidis testified that he graduated from high school and proceeded to take some night courses to get into social work. He attended the University of Windsor for one year in the hopes of obtaining a bachelor’s degree in social work, but he did not complete the program. Then he attended at CDI College and graduated as a programme analyst after a year of study.

[34] Following his studies, Mr. Patmanidis began working as a part-time instructor at CDI. He did that for two years. Thereafter, he was hired on contract by Sheridan College where he worked as a computer programmer and as a computer science teacher. He did that job for a period of approximately eight years. Eventually he said that Sheridan College would not give him any courses to teach; students would not sign-up for his courses. He therefore had to find alternate employment.

[35] He turned to the manufacturing of poker tables but the profit margins were very small and not worth the effort. Although Mr. Patmanidis had carpentry and upholstery skills and could use various power tools, he did not like the fumes and toxic substances that he had to use.

[36] Mr. Patmanidis then decided to transition to real estate work. He studied and obtained his real estate license. Real estate was not nearly as lucrative as Mr. Patmanidis would have liked. He then tried to work as a manager for a real estate broker. He hoped to become a recruiter for RE/MAX and worked in that capacity for two months in 2012. Then when the Family Responsibility Office (“FRO”) and the Canada Revenue Agency (“CRA”) started to garnish his wages, Mr. Patmanidis said that it “caused a mess”. He asked his employer at RE/MAX to convert his employment status into that of an independent contractor. Then when a management position came up, RE/MAX did not offer him that job and Mr. Patmanidis said that he decided to leave.

[37] Soon thereafter, the University of Toronto hired Mr. Patmanidis for casual employment. His hourly rate was set at $16 . The expectation was that Mr. Patmanidis would work for up to 36 hours. His tasks included the maintenance of commercial printers for the students and faculty, the maintenance of special terminals, cleaning computers, disinfecting computers and otherwise being available as an information technology handy man.

[38] At the time of the trial Mr. Patmanidis’ evidence about his continued relationship with the University of Toronto was unclear. Mr. Patmanidis indicated that he had just applied for employment insurance benefits. He also suggested that there might be some future employment opportunities. It was not clear if this prospect was bona fide or whether it was Mr. Patmanidis’ wishful thinking.

[39] Apart from this history, Mr. Patmanidis spoke of some temporary work with Close-Out King and Home Depot. He also indicated that he could work as a barista.

[40] Turning to Mr. Patmanidis’ income, the T4 slip from the University of Toronto for 2013 reported an income of $20,675.20. In his Financial Statement sworn on February 24, 2011, Mr. Patmanidis reported expenses in the approximate sum of $70,000. Mr. Patmanidis explained that he was using his share of the proceeds from the sale of the matrimonial home. In June of 2011, Mr. Patmanidis consented to his income being imputed at $35,000. He said that he would never consent to something unless he had a certain feel for being able to meet those obligations. But Mr. Patmanidis also explained that even the $35,000 was a projection that did not actually materialize.

[41] Mr. Patmanidis confirmed his total income for the years 2007 – 2009 to be as follows:

2007: $25,666.98

2008: $113,764.92

2009: $36,592.20

2010: [No evidence provided]

2011: ($10,002.86)

2012: $4,951.77

[42] Prior to separation, Mr. Patmanidis admitted to income earnings in the range of $65-70,000 from his contract jobs at CDI College and at Sheridan College.

[43] On a closer look of Mr. Patmanidis’ employment history, Mr. Patmanidis confirmed that his positions at the CDI College and at Sheridan College were contract positions for fixed assignments and periods of time. Although there were years where Mr. Patmanidis earned a respectable income, none of the positions resulted in permanent employment.

[44] When asked about efforts to locate a second job to make up for the shortfall in his income, Mr. Patmanidis said that he would spend in excess of five hours commuting from Woodbridge into Toronto and as a result did not actually have any scope for additional employment.

[45] Regarding Mr. Patmanidis’ efforts to obtain employment, Mr. Patmanidis’ testimony revealed a number of troubling difficulties. First, Mr. Patmanidis’ overall attitude suggested a reluctance to find full-time employment if it meant that half his wages would be garnished for the purposes of child support.

[46] Second, although Mr. Patmanidis provided the court with some evidence of his efforts to find employment, those efforts seemed to be half-hearted and in some instances likely unrealistic in terms of the correlation between Mr. Patmanidis’ qualifications and the job requirements. For example, Mr. Patmanidis said that he interviewed at the University of Toronto’s Department of Economics for the position of Master of Finance Economic Assistant. He did not get the position. Although Mr. Patmanidis did not provide the court with any other insights as to requirements of this position, it was not clear if Mr. Patmanidis even had the formal qualifications for such a position.

[47] Third, against Mr. Patmanidis’ bald allegation that he had submitted over 100 employment applications over a period of two years, Mr. Patmanidis’ curriculum vitae was sloppy and unfocused. In response to questions by the court on what were his employable skills and what kinds of positions he was pursuing, Mr. Patmanidis gave very elaborate and convoluted descriptions that were ultimately difficult to follow.

[48] On the subject of his skill base, Mr. Patmanidis explained that he was focused on “communicating high level concepts in an easy way for individuals”. He said that he was able to assimilate information, come up with analogies, prepare graphics, visual aids and create marketing aids. In terms of “hard skills” he explained that he knew various computer programming languages; he knew how to configure and network computers; he could do basic website set-ups; and he could maintain and design supporting e-commerce. Mr. Patmanidis also noted that increasingly these skills were not nearly as marketable as in the past because professionals and business people were becoming increasingly savvy with such tasks and applications and do not hire consultants to undertake those tasks.

ANALYSIS

Custody and Access

[49] The parties disagree on the issue of custody and access. Ms. Patmanidis seeks sole custody of Lukas and Philip. Mr. Patmanidis seeks joint custody of the children.

[50] The boys have had their primary residence with Ms. Patmanidis and she has had de facto sole custody of the boys. Communications between her and Mr. Patmanidis are virtually impossible. While she was clear that she wanted her children to have a relationship with their father, given the numerous confrontations and Mr. Patmanidis’ virtual absence from the children’s lives, she could not see how joint custody would be in the children’s best interests. When asked to comment on the clinical investigator’s recommendation for joint custody, Ms. Patmanidis explained that there were several confrontations that post-dated Mr. Perreault’s assessment. Although at one point she might have been willing to consider joint custody, with the benefit of her experience over the past two or three years, she simply does not believe that joint custody could work.

[51] Mr. Patmanidis described joint custody as the ideal situation. He was adamant that he wanted to be involved in all aspects of his children’s growth and development. That said, he acknowledged the tremendous difficulties in his communications with Ms. Patmanidis.

[52] Section 24 of the Children's Law Reform Act, R.S.O. 1990, c. C.12, is clear that the merits of an application for custody of and access to a child shall be determined on the basis of the best interests of the child as outlined more particularly in s. 24(2)(a)-(h):

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

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

(i) each person entitled to or claiming custody of or access to the child,

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

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

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

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

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

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

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

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

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[53] The best interests of the child remains the sole issue in any custody case: see Lawson v. Lawson (2006), 2006 26573 (ON CA), 81 O.R. (3d) 321(C.A.), at para. 14; Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.), at para. 10; Ziaie v. Ziaie, 2013 ONCA 156, at para. 1.

[54] The parties’ ability to communicate is a crucial consideration in the determination of custody. In Kaplanis, the Ontario Court of Appeal underscored the significance of the parts’ ability to communicate as one of the determinants of custody. The Court explained that an inability by the parents to communicate did not in and of itself eliminate the consideration of joint custody. However, at para. 11 the Court states that:

…hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important. In this case there was no evidence of effective communication. The evidence was to the contrary.

[55] In addition, for joint custody to be a viable option, the parents must be able to co-operate: Roy v. Roy (2006), 2006 15619 (ON CA), 27 R.F.L. (6th) 44 (Ont. C.A.), at para. 4; and Lawson, at para. 15. It is well recognized that joint custody requires a mutual commitment between parents to co-operate on matters pertaining to the raising of their child, and an ability of the parents to put their own interests behind those of the child: Giri v. Wentges, 2009 ONCA 606, at para. 10.

[56] Finally, conflict and lack of co-operation are an impediment to an effective joint parenting arrangement, as well as source of stress for the children: Wreggitt v. Belanger (2001), 2001 20827 (ON CA), 23 R.F.L. (5th) 457 (Ont. C.A.), at para. 20.

[57] On the facts of this case, I do not doubt the sincerity on Mr. Patmanidis’ part to want to have a relationship with his children, even if his conduct, especially in the past two years, was wanting, to say the least. I am prepared to go as far as to accept his explanation that his letter giving up custody and access was the result of an emotional breakdown and very serious personal and emotional problems on Mr. Patmanidis’ part.

[58] However, I cannot ignore the multiple instances when Mr. Patmanidis was either missing in action, failed to participate in Philip’s therapies or caused such delay in his responses that the net effect of his inaction was to compromise his children’s wellbeing. It would be one thing if Ms. Patmanidis ignored Mr. Patmanidis or otherwise disregarded his views or concerns. But Ms. Patmanidis could not have been more meticulous and patient in her efforts to communicate with Mr. Patmanidis. She tried repeatedly to communicate with Mr. Patmanidis without success. From day one, she was the one who provided the boys with a stable home environment. She has a supportive family and she can rely on their assistance with the boys. Also to her credit, Ms. Patmanidis has encouraged Mr. Patmanidis’ mother to have a relationship with the children. She tried to work through Mr. Patmanidis’ mom to reach out to Mr. Patmanidis. She was not successful.

[59] Given Philip’s particular needs, the ongoing changes to those needs, and the constant engagement and interaction with various therapists, teachers and support professionals, decisions have to be made in an efficient and meaningful way. In these circumstances, communications and co-operation between the parents are especially crucial. The parents have to be a team and they have to work together to respond to what is required of them. But if they cannot operate as a team then an alternative arrangement is essential and in the children’s best interests.

[60] Similar considerations apply for Lukas. Though he may not require the same developmental support as Philip, he is nonetheless a young child. He needs to have a stable and predictable environment and not to be subjected to constant disagreements and confrontations. In this regard, the court was appalled to hear that Lukas was being used as the conduit for messages between the two parents.

[61] Regrettably, the evidence before this court revealed a fundamental inability by the parents to put their differences aside and to communicate effectively. Efforts to co-operate have been a dismal failure and given the dynamic that was observed in court, prospects for co-operation in the immediate future are dim.

[62] In these circumstances and given Ms. Patmanidis’ exceptional care of her two boys, it is in the children’s best interests for Ms. Patmanidis to be awarded sole custody. She is to remain the primary caregiver, provide primary residence for the boys and retain the ultimate decision-making authority with respect to all decisions that are to be made in relation to both boys.

[63] That said, and despite the history of communication difficulties, Ms. Patmanidis is to continue to advise Mr. Patmanidis of all of the children’s activities. She is to use short and succinct e-mail communications to outline particular issues or decisions that will have to be made with respect to both boys. Where a decision has to be made, Mr. Patmanidis will be given reasonable time to understand the issue and to raise questions he may have. His concerns are to be taken into account before Ms. Patmanidis makes a particular decision.

[64] For his part, Mr. Patmanidis must act reasonably and respond appropriately through a reply e-mail communication that is responsive to the issue at hand. If Mr. Patmanidis continues to be non-responsive or otherwise confrontational, Ms. Patmanidis may return to court to remove this term of the court’s order.

[65] Turning to the subject of access, McLachlin J. (as she then was) explains in Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3 (S.C.C.), at para. 206:

The ultimate test in all cases is the best interests of the child. This is a positive test, encompassing a wide variety of factors. One of the factors which the judge seeking to determine what is in the best interests of the child must have regard to is the desirability of maximizing contact between the child and each parent. But in the final analysis, decisions on access must reflect what is in the best interests of the child.

[66] It is crucial for the children’s well-being that they have regular and consistent access visits with their father. The court is prepared to accept Mr. Patmanidis’ representation that he would like to resume access with his children. However, given Mr. Patmanidis’ past track record and conduct, Mr. Patmanidis is going to have to demonstrate his commitment to a consistent and predictable access schedule.

[67] Access is to begin with alternate Saturday day visits with the specific times to be decided between Ms. Patmanidis and Mr. Patmanidis, through e-mail communications. In the absence of an agreement, Mr. Patmanidis is to pick-up the boys at 9 a.m. and bring them back at 7 p.m.

[68] Beginning in January 2015, the access time may be expanded to full alternating weekends, the specific times to be decided by Ms. Patmanidis and Mr. Patmanidis. In the absence of an agreement, then Mr. Patmanidis shall pick-up the children, either from school or daycare or from their home at 6 p.m. on Friday and return them to their home on Sunday at 7 p.m.

[69] A midweek access day may be added starting in June 2015 provided that the access arrangement to that date has been steady, consistent and predictable for the children.

[70] It will be up to Mr. Patmanidis to prove first to his children and then to the court that he can maintain a proper access schedule. If Mr. Patmanidis cancels out on more than five visits over the next year, access with the children will be forfeited. Holidays are to be shared and the particular arrangements are outlined in the final terms below.

Child Support

[71] The issue for this court is focused on the income to be imputed to Mr. Patmanidis. Ms. Patmanidis takes the position that given Mr. Patmanidis’ income history it would be appropriate for the court to impute an annual income of $45,000. The proposed sum represents 50 per cent of Mr. Patmanidis’ highest level of income. Ms. Patmanidis also submits that Mr. Patmanidis is choosing to be underemployed and under-selling his skills so as to remain unemployed and to avoid all of his financial obligations.

[72] In response, Mr. Patmanidis agrees that he should be paying child support but first he said that he needs time to get his own situation in order and then his income ought to be imputed at $20,000.

[73] Subsection 19(1)(a) of the Guidelines states:

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 spouse;

[74] The Ontario Court of Appeal in Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 23 broke down this requirement into the following questions for consideration:

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

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

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

[75] The definition of “intentional” has been considered in various decisions. Early cases suggest that there had to be bad faith or a deliberate attempt associated with a parent’s under-employment or unemployment so as to avoid his or her support obligations. Other cases concluded that there was no need to find specific intent. The Ontario Court of Appeal clarified that if a parent chooses to earn less than he or she is capable of earning that amounts to intentional under-employment or unemployment. The Court explained that “[t]he word “intentionally …does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work”: Drygala, at para. 28.

[76] In the same decision the Court noted at para. 38:

As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs.

[77] Finally, section 19 of the Guidelines is not an invitation for the court to arbitrarily select an amount as imputed income. “There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence”: Drygala, at para. 44. It must also be reasonable in all of the circumstances.

[78] Turning to the evidence before this court, Mr. Patmanidis has chosen to be unemployed. As noted above, the court was troubled by Mr. Patmanidis’ apparent inability to speak about his efforts to find employment in a coherent and focused manner. Some of his explanations were reasonable. For example, when he explained that he had trouble obtaining entry-level positions at various stores because employers tend to prefer younger employees, or that he was over-qualified for such positions, such views were not unreasonable.

[79] On the other hand, given the vagueness of Mr. Patmanidis’ curriculum vitae, his lack of success in finding any employment was not surprising. Mr. Patmanidis may not agree, but he could benefit from some proper employment counseling and guidance, particularly since Mr. Patmanidis is very bright and has a full range of skills and qualifications that he may deploy.

[80] What was evident to this court was that Mr. Patmanidis is capable of earning a substantial income. The court cannot ignore the coincidence of timing between Mr. Patmanidis’ alleged financial difficulties and his part-time employment with his temporary support obligations for his sons. That timing is not coincidental; it is highly suspect.

[81] Mr. Patmanidis does not have the luxury to remain unemployed or under-employed. He may also not have the luxury to be selective in the employment positions he pursues. He cannot say with any credibility that he cares deeply for his children and he wants to be part of their lives, but then avoid his obligations by relying on the excuse that his own life is in a mess. He must address his personal challenges and take ownership of his situation and his obligations.

[82] Insofar as the quantum is concerned, the proposed sum of $45,000 is high. On the strength of the evidence before this court it is uncertain that Mr. Patmanidis will obtain employment at that salary level. At least for the immediate future, the more realistic figure to be imputed to Mr. Patmanidis is the sum of $35,000. Given Mr. Patmanidis’ past employment history and his multiple skills, ranging from computer programming, to real estate training and carpentry and upholstery, and taking as a baseline the sum of $20,000 for casual employment, if Mr. Patmanidis were to work on a full-time basis that sum could reasonably be increased to $35,000.

[83] Moreover, the imputed sum of $35,000 is similar to the income being earned by Ms. Patmanidis as a salesperson for Burberry. If she can obtain entry-level employment at Burberry’s at that salary level, then Mr. Patmanidis should not be held to a higher income level for a position analogous to Ms. Patmanidis’ position. At the same time, his income cannot be imputed at a level that is lower than what he could reasonably earn in a retail position similar to Ms. Patmanidis’ position.

Section 7 Expenses

[84] Section 7 of the Guidelines provides as follows:

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.

[85] Ms. Patmanidis’ claim for s. 7 expenses is appropriate and Mr. Patmanidis ought to contribute to them in accordance with the income imputed to him above. For the years 2011 and 2012 the proportionate share for these expenses is 40 per cent payable by Mr. Patmanidis and 60 per cent payable by Ms. Patmanidis. For 2013 and 2014 the expenses are to be shared on a 50-50 per cent basis. Thereafter, such expenses are to be apportioned on the basis of the parents’ respective income levels. These expenses are to be enforced through FRO.

FINAL DISPOSITION

[86] A final order is to issue as follows:

(a) Ms. Patmanidis shall have sole custody of Lukas and Philip.

(b) Ms. Patmanidis shall use e-mail to advise Mr. Patmanidis of all decision-making and developments with the boys. Such updates are to include information about Philip’s new therapies and supports, extra-curricular activities, school report cards and school activities, and any other decisions that are to be made in relation to both boys.

(c) Where a major decision has to be made concerning the boys, Mr. Patmanidis will be given reasonable time to understand the issue and to raise any questions he may have. Ms. Patmanidis is to take Mr. Patmanidis’ concerns into account before she makes a particular decision, though she will retain the ultimate decision-making authority. For his part, Mr. Patmanidis must act reasonably and respond appropriately, through reply e-mail communications. If Mr. Patmanidis is non-responsive or otherwise confrontational in his responses to Ms. Patmanidis’ communications, Ms. Patmanidis may return to court to remove this term of the court’s order.

(d) Mr. Patmanidis shall be permitted to obtain whatever medical and school records relating to Lukas and Philip without requiring Ms. Patmanidis’ consent.

(e) Ms. Patmanidis and Mr. Patmanidis are to attend parent-teacher interviews together for both boys.

(f) Mr. Patmanidis is to be advised by Ms. Patmanidis of whatever counseling, treatments and/or therapies required for Philip’s development.

(g) Access between Mr. Patmanidis and the boys is to be resumed on a regular and consistent basis as follows:

i. From the date of this order until the end of December 2014, Mr. Patmanidis shall have day access with the boys on alternate Saturdays. The specific times are to be determined by Mr. Patmanidis and Ms. Patmanidis so as to accommodate the specific logistics for such access. If it turns out that Mr. Patmanidis is working on Saturdays, then the parties may agree to change the access date from Saturday to Sunday. Whatever day is chosen must remain consistent. This qualification does not mean that the access date may be alternated between Saturday and Sunday. If Ms. Patmanidis and Mr. Patmanidis are unable to agree to specific pick-up and drop-off times, the boys are to be picked up at 9 a.m. and returned at 7 p.m.

ii. From January 1, 2015 until June 30, 2015, Mr. Patmanidis may have the access with his boys increased to full alternate weekends, starting on Friday evening and ending on Sunday night. If Ms. Patmanidis and Mr. Patmanidis are unable to agree to specific pick-up and drop-off times, the boys are to be picked up at 6 p.m. on Friday from one of school, daycare or from their home and they are to be brought back to their home on Sunday at 7 p.m. in the evening.

iii. From July 1, 2015 onwards, a midweek access date may be added to the access schedule provided that the access visits leading up to July 1, 2015 occur regularly and consistently, in a way that responds to the children’s needs to have a relationship with their father.

iv. Ms. Patmanidis and Mr. Patmanidis are to identify the access schedule in accordance with the formula noted above immediately and it is to be blocked into an appropriate electronic calendar that both Ms. Patmanidis and Mr. Patmanidis can access. Mr. Patmanidis shall give Ms. Patmanidis one week’s notice if the access date has to be cancelled.

v. Subject to circumstances beyond Mr. Patmanidis’ control such as illness or other family emergency, access cancellations are to be truly the exception. If over the next year Mr. Patmanidis cancels more than five access dates, his access rights with the boys shall be forfeited.

vi. All arrangements and logistics associated with the boys’ access time are to be communicated directly through e-mail between Ms. Patmanidis and Mr. Patmanidis. If this exchange proves to be impossible, then Ms. Patmanidis and Mr. Patmanidis are to identify a third party to help facilitate such communications. Under no circumstances are any messages or arrangements to be made through Lukas or through Philip as the case may be.

vii. All access shall include both boys together. There is to be no discrimination between the two boys as that relates to access visits.

viii. As the boys get older, Mr. Patmanidis may engage in one-on-one activities with his sons. However, such activities shall be distributed equally such that he gives each of the boys the same time for any one-on-one activities. Under no circumstances is there to be any preference given to one child over the other.

(h) Under no circumstances is there to be any bad-mouthing by either parent of either parent to the boys.

(i) All holidays are to be shared equally between the two parents. Such arrangements are to be reviewed and agreed to annually and in a way that accommodates the various family activities.

(j) Starting in the summer of 2015 each of Ms. Patmanidis and Mr. Patmanidis are to have two non-consecutive, uninterrupted summer vacation with Lukas and Philip together. Summer holiday arrangements are to be confirmed each year by no later than March 31.

(k) The children are to spend Mother’s Day with Ms. Patmanidis regardless of whether or not that weekend is an access weekend. If that weekend is an access weekend, the schedule shall be varied to make that adjustment.

(l) The children are to spend Father’s Day with Ms. Patmanidis regardless of whether or not that weekend is an access weekend. If that weekend is an access weekend, the schedule shall be varied to make that adjustment.

(m) Mr. Patmanidis’ income is imputed at $35,000 for the years 2011, 2012, 2013 and 2014. Mr. Patmanidis shall pay child support in the monthly sum of $508. Such support obligations are to be enforced through the FRO.

(n) Mr. Patmanidis shall begin to pay child support forthwith. With respect to his accumulated outstanding child support obligations, he is to pay 50 per cent of that outstanding sum within 30 days of this court order. The balance is to be amortized over a period of two years from the date of this order.

(o) Section 7 expenses are to be shared between Ms. Patmanidis and Mr. Patmanidis as follows:

i. For the years 2011 and 2012, such expenses are to be shared, Ms. Patmanidis 60 per cent and Mr. Patmanidis 40 per cent;

ii. For the years 2013 and 2014, such expenses are to be shared on a 50-50 per cent basis; and

iii. After 2014, such expenses are to be apportioned on the basis of the parents’ respective income levels.

(p) Each of Ms. Patmanidis and Mr. Patmanidis shall file their respective income tax returns with the CRA by April 30th of each year beginning 2015, and shall, by June 1st of each year beginning 2015, produce to the other their complete Income Tax return as filed with the CRA, including all schedules and attachments, and shall, within two weeks after receipt, produce to the other their Notice of Assessment from the CRA.

(q) The parties shall by July 1st of each year beginning 2015, exchange proposals regarding the adjustments required to child support and contributions to s. 7 expenses, to be effective January 1st of that year, and proposed s. 7 expenses for any post-secondary expenses for the following year.

(r) For the years that follow 2014, Mr. Patmanidis’ child support obligations may be adjusted upwards or downwards on the basis of his actual income earnings as reported to the CRA.

(s) Any dispute regarding adjustments to child support or contributions to s. 7 expenses shall be mediated by a mediator selected by the parties or, if they are unable to agree, appointed by the court upon application by either party. The cost of mediation shall be deemed to be a special and extraordinary expense within the meaning of s. 7 of the Guidelines, and shall be borne by the parties in the same proportion that each is contributing to other special and extraordinary expenses. Before proceeding to mediation, the parties shall exchange any relevant information about their proposals for such adjustments in writing for the other party to consider. The mediation shall be paid for in proportion to the parties’ Line 150 income from the Notice of Assessment last issued by the CRA in relation to their income. If the mediation does not result in agreement, the mediator shall act as an arbitrator and release a written decision, which the parties may appeal to this court, by motion on notice to the other party and supported by written material, which shall include the arbitrator's decision.

(t) The parties are strongly urged to resolve the issue of costs between them. If they are unable to reach an agreement, each may submit written argument, not to exceed two pages, double-spaced, as well as a Costs Outline and any relevant Offers to Settle. Ms. Patmanidis may file such materials by July 30, 2014 and Mr. Patmanidis may respond by August 15, 2014.

(u) All child support obligations, s. 7 expenses and all outstanding and future costs owed by Mr. Patmanidis to Ms. Patmanidis are to be enforced by the Director of FRO, unless withdrawn from that office.

(v) Ms. Patmanidis’ counsel is to provide Mr. Patmanidis with a draft of this order for his review and comment. Final approval as to the form and content of the order by Mr. Patmanidis is dispensed with.

TZIMAS J.

Released: July 18, 2014

COURT FILE NO.: FS-11-70950-00

DATE: 20140718

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ANTONIA PATMANIDIS

Applicant

• and –

THEODORE PATMANIDIS

Respondent

REASONS FOR JUDGMENT

TZIMAS J.

Released: July 18, 2014