CITATION: Ali v. Williams-Cespedes, 2015 ONSC 3560

COURT FILE NO.: FC-13-1182-00

DATE: 20150602

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TAHIR ALI

Applicant

– and –

ADRIANA WILLIAMS-CESPEDES

Respondent

Applicant, Self Represented

J. Biggar, counsel

HEARD: May 27, 28, 29, 2015

REASONS FOR JUDGMENT

HEALEY, J.

Nature of the Claims

[1] As a result of a motion brought by the respondent on the first day of trial, the applicant's claims relating to property were struck, and the respondent was permitted to proceed by way of an uncontested trial, through oral evidence, on her financial claims. The applicant was permitted to lead evidence relating only to each party’s claim for custody, or in the alternative, access. This Court’s reasons for striking the financial claims of the applicant were delivered orally.

[2] In addition to custody of the children, the respondent seeks an order granting specified access between the applicant and the children, an order that neither party denigrate the other in front of the children, and an order for child support. Although the respondent made a claim for compensation regarding the residence in which the parties resided during the relationship, that property was sold by the first mortgagee in a foreclosure action and resulted in a deficit. In the result, no claim was pursued. Her final claim, which was that the applicant be removed as a subscriber from the Registered Education Savings Plan for the children, was settled by the parties prior to trial.

[3] The applicant also seeks custody of the children, and, before his claims were struck, he sought equalization of net family properties and sale of the family residence.

[4] The applicant claimed that the parties were married. The respondent disputed any marriage and asserted that they lived in a common-law relationship only. The respondent testified that on the date of separation she discovered a document in the home, signed by the applicant, which indicated that he had never been divorced from Misbah Rasool, who she understood to be his former wife. As part of his disclosure, the applicant was to serve and file a certificate of divorce from a woman to whom he was married in Pakistan, as well as the alleged certificate of marriage to the respondent. Neither was filed. Given the lack of these two key pieces of evidence, along with the respondent’s testimony, I find as a fact that the parties resided only in a common-law relationship. The respondent is now married to Mr. Iftikar Ahmad Butt, their marriage taking place in March, 2012.

Background Facts

[5] I find the following facts to be true in this case:

[6] The applicant was born in Pakistan on January 1, 1962 and is currently 53 years of age. The respondent was born in Costa Rica on August 11, 1982 and is currently 32 years of age. The respondent moved to Canada from Costa Rica on May 9, 2003 and is currently a permanent resident in Canada. The respondent and the applicant met in 2003 and began to cohabit in a common-law relationship shortly thereafter.

[7] There are two children of the relationship between the respondent and the applicant, namely Eathen Ali Williams, born May 21, 2005, currently age 10, and Brianna Maria Ali Williams, born June 26, 2009, currently age 5. Both attend Mapleview Heights Elementary School in Barrie, Ontario; Eathen is in Grade 4 and Brianna is in Senior Kindergarten. There is one child of the applicant’s marriage, Smile Tahir, who resides in Pakistan.

[8] The parties separated on June 26, 2011. At the date of separation they resided at 45 Irene Drive in Barrie. After their separation, the applicant moved into a basement apartment unit in that home, where he remained for over two years. The applicant remained there until the police requested that he leave on September 26, 2013, as a result of a domestic incident. From that point on, the children continued to reside with the respondent. She moved from that residence on October 20, 2013, after being served with a Notice to Vacate the residence by the first mortgagee. She currently resides in rental accommodation that is a short drive away from the rental accommodation in which the applicant resides.

Custody

[9] The applicant's claim for custody is, according to his evidence, based on a concern for his children's safety. He testified that his children are not safe in the respondent's household. He alleged that Mr. Butt is a criminal and is a refugee who is wanted in Pakistan. He brought with him a document, having never served notice of such a document prior to his testimony, purporting to be evidence that Mr. Butt's refugee claim should be denied because of his criminal history. The document contained several signatures which the applicant stated belong to other tenants who were living in the common-law residence, who were aware of these alleged facts concerning Mr. Butt. I declined to have the document marked as an exhibit for several reasons: the individuals who signed the document were not expected to be witnesses, the contents of the document was strictly hearsay, it had no probative value because of the unreliability of the contents, and it had never been produced before trial. Mr. Ali’s evidence was unclear; he indicated that he read about Mr. Butt’s involvement in a murder in a newspaper from Pakistan, but did not clearly state that he knew of a conviction for any crime. He offered that “if given time”, he could bring the newspaper article to court, and could bring witnesses who could testify to Mr. Butt’s criminal history. The only other information that he could give in relation to this issue was that he knew Mr. Butt's parents in Pakistan. He testified that he had reported all of this to immigration authorities in Canada.

[10] Mr. Butt testified. He is 36 years of age and has lived in Canada since May 2008. He became a permanent resident last year. He testified that he has never even physically assaulted anyone, nor been in a physical fight. He denied any criminal record in Pakistan or Canada. He testified that the immigration process required a search of any criminal record in Pakistan. He testified that he has never given anyone a copy of his refugee paperwork, but indicates that it is missing and he believes that it has been stolen. He produced a copy of a criminal record search from the York Regional Police dated July 21, 2014, which indicates that no criminal convictions were disclosed for him in the RCMP National Repository of Canadian Criminal Records. Mr. Butt testified that after having had his final interview with immigration authorities, he received a call from an officer and was required to come to a further interview. During that interview he learned that someone had called to report that he was a “criminal”. Subsequently, he received his permanent resident status.

[11] Mr. Butt operates a small take-out restaurant in Barrie. He also testified that inspectors from the City came to his restaurant as a result of a "tip", making inquiries as to whether any children lived at the restaurant. The inspectors accepted his reassurances that no one was living on the restaurant’s premises.

[12] The other basis for Mr. Ali's allegation that the children are not safe came through his witness, Kevin Gilpin. Mr. Gilpin testified that on the day that the respondent and children were moving out of 45 Irene Drive, he observed Mr. Butt twisting “the children’s arms” as a result of something having to do with a roll of packing tape. This evidence was lacking in detail; although Mr. Gilpin stated that he was standing beside Mr. Butt at the time, he gave no information that allowed the Court to evaluate the alleged incident. Nor did the Court receive evidence of Mr. Gilpin's relationship to either of the parties in this case, in order to be able to evaluate a tendency to provide evidence more favorable to Mr. Ali. It is noted that in direct examination, Mr. Gilpin’s evidence was simply to reply affirmatively to the leading question asked by the applicant, something in the nature of "you have seen that he or she has twisted my kid’s arms?" It is also noted that Mr. Gilpin did not mention this incident to the respondent at the time, even though she was present in the home.

[13] This was the single instance over the last four years that Mr. Ali could provide of anything close to concerning conduct. The Court weighs this against the other evidence of the relationship between Mr. Butt and the children, all of which is positive. The Court also weighs this against the evidence of the respondent’s parenting skills and in particular, evidence of her protecting the children and fulfilling their physical and emotional needs.

[14] Mr. Butt was asked about this incident. He recalled that he took the roll of tape from Eathen on the date of the move, and he described how he was carrying a box in his two hands at the time. He described that there was no reprimand or discipline of any kind, and that the event was a non-issue. Mr. Butt is a soft-spoken man, gentle in demeanor, and this Court finds that his evidence is highly credible. Taken together with his other evidence of how he and Eathen play sports together, and how he is asked by Brianna to carry her and hold her, and how he voluntarily assumes the role of caregiver when the respondent is unavailable, I find that the incident testified to by Mr. Gilpin never occurred in the manner that he described.

[15] Other than this concern, the applicant testified that he lives in a better home than the respondent, because, according to him, she is living in low-income, government housing “where no one works; they only smoke and drink”. He testified that it was his idea to open the education savings plan for the children, and that he has ensured that he has life insurance coverage for them, in contrast to the respondent. The inference that the applicant expected the Court to draw from this evidence is that the respondent is irresponsible and unmotivated. However, the Court’s assessment of the respondent is to the contrary.

[16] It was clear from the applicant's testimony that he has continually tried to vilify the respondent and Mr. Butt to the children. The respondent testified to how the children have been distressed as a result of comments made to them by the applicant. She testified that they have been told that she either is a criminal or lives with one, and will be sent to jail, and that she will be sent back to Costa Rica without them. The children have been told that they would have to come to the courthouse to tell the judge where they want to live. Eathen has talked to the respondent about this, and communicated his distress. I find as a fact that the applicant has made such statements to the children, given his testimony regarding the character of the respondent and Mr. Butt. He testified that the children were scared of their mother, with no supporting evidence and in complete contrast to all of the evidence in the case supporting the positive relationship between the children and their mother. In his closing submissions, he told the Court that he would rather have the children go into the care of the Children's Aid Society than live in the respondent’s home.

[17] Although the applicant denied telling the children that they would have to come to court to give their evidence to a judge, in his testimony he pressed the Court to speak directly to the children. He testified that he wanted a Children's Lawyer appointed for them. Such an issue has never been addressed in any endorsement made at a conference throughout this proceeding.

[18] On the day before a particular court attendance, the respondent testified that the applicant called Eathen and advised him that they were going to court the next day. Eathen's teacher, who keeps the respondent informed regularly about his performance, sent her an e-mail saying that Eathen was distracted and very upset. Eathen had had a test that day, on which he was able to score only 3 correct answers out of 25 questions. When this trial began, the respondent made a point of reminding the applicant not to tell Eathen that they were going to court. She indicated in her testimony that she had reminded him the previous day as well.

[19] The children have resided continuously with their mother since the separation. They have never spent longer than one overnight at a time in the respondent's care. I find that the environment in the respondent's home is a positive and caring one. The respondent is attentive to their needs in all areas. She described that she has enrolled the children in the Rainbows program at school to assist them with the separation. After they had to leave 45 Irene Drive, she ensured that administrative procedures were carried out to request permission for the children to be allowed to stay at Mapleview Heights Elementary School, so that they would not have to undergo more change. The applicant refused to sign this form until he was required to do so during a court attendance. She is regularly in touch with Eathen's teacher and supports the fact that he is receiving extra help after school for his math. She attends all parent-teacher interviews and helps the children with their homework. The respondent arranges for outings and play time. She has taken the children to all of their medical, eye care and dental appointments, which included the children having dental surgery when they were younger. The respondent testified that the applicant has never attended a school interview or medical appointment; the applicant did not dispute this testimony other than indicating that he drove her to a single dental appointment. She looked after filling out the paperwork for Trillium funding for the dental surgery. She has enrolled the children in all of their extracurricular activities, and looks after transporting them.

[20] In October, 2014 the parties agreed to an order that permitted the applicant to have overnight access from Sunday at 4:00 p.m. until Monday at return of school the next morning. This upset Brianna in particular, as she was out of routine on Monday mornings, and would not eat breakfast or receive a lunch from her father’s home that was to her liking. The respondent testified that shortly thereafter, she asked the applicant to bring the children to her home in the morning before school so that she could ensure that they had on clean clothes and had proper school lunches. The parties have been following that arrangement to the present day.

[21] The respondent also exposes the children to both Muslim and Roman Catholic religions. She has tried to take the children to Costa Rica annually to visit with their grandparents, cousins and other extended family. In 2006, the respondent began to take English classes at the local YMCA. She testified that when she arrived in Canada she spoke exclusively Spanish. When there is some aspect of Eathen’s homework that she is unable to understand, she asks a friend for help.

[22] The respondent testified that she attempts to get along with the applicant, but finds it difficult because he will agree to something one day, and then change his mind the next. She gave as an example the fact that the applicant had agreed that she could take the children to Costa Rica in December, 2014, and they had discussed and agreed to a sharing of the cost, but then he refused to sign a travel consent letter until the parties attended court. She testified that he sometimes refuses to talk to her, and passes messages through Eathen. Despite the challenges presented by the applicant, the respondent was fair and direct in her testimony, never exaggerating or overstating.

[23] The applicant testified that he and the respondent "cannot be together for minute". In relation to the issue of the document required to be signed to keep the children in their present school, he agreed that he did not sign such document until the parties were present in court. He testified that "since there is no relationship, so any signatures that you see happened in the court and will happen in the court". I infer from this that the applicant is not likely to reliably enter into discussions with the respondent in good faith, with a view to making joint decisions in the best interests of the children.

[24] Accordingly, I find that the applicant’s unwillingness to communicate with the respondent, together with all of the evidence heard in this case, means that joint custody would not be a suitable arrangement. Given the applicant's approach to decision-making in the past, and his inability to always place the children's best interest at the forefront, an order for joint custody would simply cause frustration and impair the respondent's ability to act in the best interests of the children.

[25] The respondent testified that the applicant does not always exercise access reliably. Despite the short periods of access set out in the temporary orders, the applicant periodically has to be telephoned repeatedly while the children are waiting to be picked up. His answer to the children is that he is sleeping. The respondent testified that sometimes he has been an hour or two late. The applicant did not deny this evidence, but testified that he had a medical reason; he stated that sometimes his blood pressure shoots up and he cannot "deal with the kids". He testified that as recently as three days prior to giving his testimony, he missed a visit due to his blood pressure. He has also been unreliable with respect to the evening return times, such that he has been as much as two hours late, bringing the children home well past their bedtime. With respect to returning the children late, the Court also accepts that this occurs, given the applicant's attitude toward discipline. He testified that Eathen will call his mother and ask for permission to stay later because he is playing with his friends. The applicant, by so allowing, puts the respondent in the position of having to say yes or no, rather than imposing routine himself. He testified that when the children are with him, he gives them whatever they ask for, and takes them to do whatever they want to do, regardless of the time or cost. The applicant's time with the children is focused on giving them opportunity to play with their friends. Their school friends are typically included in their father's visits, and pizza parties are the norm. The respondent testified that the applicant does not spend one-on-one time with the children. In terms of rules, discipline and structure, such things are largely absent at the applicant's home.

[26] On July 22, 2014, the parties entered into a consent order, one of the terms of which is that the applicant is to spend the entire visit with the children, and they are not to be left in the care of a third party. The respondent explained that this term was needed at that time because the applicant was dropping the children off with other parents, without her knowledge or consent.

[27] Mrs. Rupinder Kumar testified for the respondent. She has known the parties for approximately 5 years, and her children are friends with theirs. She spoke positively about the applicant and his interactions with the children, although testified that in her observation, the respondent is the primary caregiver. She testified that, when the parties were first breaking up, the applicant would drop the children off at her home, and once or twice he did not come back for them. Mrs. Kumar had to call the respondent to inform her. Mrs. Kumar described that she and the applicant now have a more flexible arrangement, and each looks after one another's children during play times.

[28] The applicant drives a taxi for a living. He works 12 to 16 hour days, a fact which he does not deny. The respondent is not employed outside of the home, other than cleaning offices on weekends, and helping her husband in his restaurant during the hours that the children are in school.

[29] On October 29, 2014, the parties entered into a consent order, one of the terms of which was that the applicant was to ensure that Eduardo DaSilva not sleep at the applicant's residence on the night that he has overnight access to the children. Mr. DaSilva had been a tenant in the parties’ home at 45 Irene Drive. Currently, according to his evidence, he is renting the basement unit in the applicant's rental accommodation. The respondent testified that the reason for the term in the order was her discovery that Mr. DaSilva has a criminal record.

[30] Mr. DaSilva testified. He has a criminal record consisting of a 1998 conviction for possession of stolen property. He further testified that when he resided at 45 Irene Drive, he observed that the respondent had "no respect for the children". More significantly, despite the applicant's testimony that he was abiding by the terms of that order, Mr. DaSilva testified that he always sleeps in the residence, even when the children are sleeping there. Accordingly, I find as a fact that the applicant has not been compliant with this term of the order. During this Court's oral delivery of its decision regarding the custody and access issues, the applicant was warned about the potential consequences of deliberate disobedience of a court order, including a finding of contempt and related sanctions.

[31] It is apparent to the Court from the applicant’s evidence that he subleases to other individuals. One such individual accompanied the applicant to the trial every day. This individual is unknown to the respondent. As I explained to the applicant in my oral Reasons, this creates a potential safety concern for young children, and so at a minimum, a criminal records check should be completed for each potential tenant.

[32] Having listened carefully to the testimony of the applicant and the respondent, I find that the respondent at all times gave a more detailed and believable version of the history of the parties' interactions, and their conduct in relation to the children, than did the applicant. Where the evidence of the applicant conflicts on any point with that of the respondent’s, I prefer and accept the testimony given by the respondent.

[33] I find as a fact that the respondent is far better equipped than the applicant to be the primary caregiver of the children, and to make decisions in their best interests. There is nothing about her conduct that does anything but reassure the Court that she is an exceptionally loving and conscientious parent. In contrast, while the applicant has regularly exercised access with the children, and the evidence establishes a bond between them, as a result of the conduct of the applicant described throughout these Reasons, I find that he is not the preferable custodial parent.

[34] Applying all of the above evidence to the factors set out in section 24 (1) and (2) of the Children's Law Reform Act, R.S.O. 1990, c. C.12, this Court determines that the best interests of the children will be served by maintaining the status quo in terms of their living arrangements and current access with her father, while granting sole custody to the respondent.

[35] As a result of these findings, this Court made the following order in respect of custody and access, effective May 29, 2015, in an oral judgment delivered on that same date:

1. The respondent shall have sole custody of the children, Eathen Ali Williams, born May 21, 2005 and Brianna Maria Ali Williams, born June 26, 2009.

2. The primary residence of the children shall be with the respondent.

3. The respondent shall consult with the applicant prior to making major decisions relating to the children's health, education and general welfare.

4. Both parties shall have the right to consult with and obtain information directly from the children's teachers, doctors or other professionals about the health, education and general welfare of the children.

5. Both parties shall keep each other informed about any significant issues relating to the children that arise during their time with the children.

6. The applicant shall have access with the children each week on Wednesday from 5:00 p.m. to 7:30 p.m. and on Sunday from 4:00 p.m. to Monday at 8:00 a.m., as well as such further and other access as the parties may agree upon from time to time.

7. Provided that the applicant continues to exercise this access regularly and dependably, and complies with the orders regarding access, as the children grow older this overnight access may be expanded in accordance with an agreement in writing made by the parties.

8. Should either party wish to reschedule or cancel an access visit, at least twenty-four (24) hours’ notice must be provided to the other party via text message.

9. The applicant shall have the following holiday access schedule in addition to the regular access schedule above:

a) The applicant may request extra access with the children during the summer months as agreed to between the parties at least one week in advance;

b) The applicant may request two extra overnight visits with the children during the Christmas school holidays, to be requested at least one week in advance;

c) The applicant may request an extra overnight visit with the children during March Break, to be requested at least one week in advance;

d) Every year on Father's Day, the applicant shall be entitled to commence access with the children at 12:00 noon instead of 4:00 p.m.

10. Access exchanges shall take place at the respondent's residence, unless otherwise agreed to between the parties.

11. The applicant shall be responsible for all of the transportation of the children for access, unless he does not have an available vehicle, in which case a mutually agreeable arrangement shall be made between the parties.

12. The applicant shall spend the entire access visit with the children, and the children are not to be left in the care of third parties by the applicant except in case of emergency.

13. Both parents shall have reasonable telephone access with the children while the children are in the care of the other parent.

14. Neither parent shall speak negatively about the other parent in the children's presence, and both will make their best efforts to prevent all third parties from doing so as well. Furthermore, neither parent shall discuss this court case or other adult issues involving the parties with the children.

15. The parties shall keep each other informed as to their residential address and telephone number, and notify the other whenever this information changes.

16. Both parties may attend the children's activities with their respective families, and neither parent will interfere with the other parent having some time with the children at the event.

17. For any period of time that the applicant shares a residence with a roommate, tenant, boarder or lodger, he shall provide the full name of such individual to the respondent before that individual moves into his residence, and a report from the local police service showing the results of a criminal record search of such individual. Any time that the applicant fails to provide such police report, his access with the children shall be suspended until such police report is provided.

18. Neither party shall take the children out of the Province of Ontario without the prior written consent of the other party or a court order, and neither party shall unreasonably withhold his or her consent to such request from the other party.

19. Notwithstanding clause 18 above, the respondent may annually remove the children from Ontario or Canada for vacation in Costa Rica for a period of up to four (4) weeks, and to the United States for up to seven (7) days, without needing to obtain the consent or permission of the applicant, provided the applicant is given four (4) weeks’ notice of the trip, and an itinerary and a copy of return airfare tickets is provided to him. No signed travel documents or consents are required from the applicant for this travel. The respondent's ability to take the children on vacation to Costa Rica or the United States shall override the applicant's regular and holiday access schedules.

20. The respondent shall keep care and control of the children’s passports.

21. If requested, the applicant shall receive the equivalent make-up time for any access time missed by him as a result of a vacation to Costa Rica or the United States, at times to be arranged between the parties.

22. The applicant's approval of the form and content of this order is dispensed with.

Support

[36] As earlier indicated, the financial issues proceeded on an uncontested basis. The issues to be determined by this Court are: the commencement date for child support, the applicant's income, the appropriate amount of support, and the applicant's liability for contribution to section 7 expenses.

Commencement Date for Child Support

[37] The respondent's Answer was signed on October 16, 2013 and filed on October 20, 2013. In her Answer, she seeks an order that the applicant pay child support to her in accordance with the Child Support Guidelines retroactive to October 1, 2013.

[38] I have found as a fact that the applicant moved out of the common-law residence on September 26, 2013. Thereafter he did not provide any voluntary financial assistance to the respondent. It was not until an order was made on April 1, 2014 that she began to receive child support. On that day, pursuant to Minutes of Settlement, it was agreed that the applicant would pay child support to the respondent in the amount of $200 per month commencing April 15, 2014 and on the 15th day of each month thereafter. That amount was agreed to on a without prejudice basis subject to verification of the applicant's income. On the basis of the Minutes of Settlement, the temporary order of Justice Graham dated April 1, 2014 issued.

[39] In her evidence, the respondent filed a statement of arrears from the Family Responsibility Office dated May 22, 2015 for the period beginning June 1, 2014 to May 21, 2015. It shows that the applicant has never made a regular payment of $200 in that period of time. The respondent's evidence is that the applicant paid her in cash from June to October 2014, and she acquiesced to his request that he pay $50 per week. When she was in Costa Rica with the children from mid-December, 2014 to mid-January, 2015, he sent her between $800 and $1,000 pursuant to an earlier agreement made between the parties that he would contribute to the cost of an airline ticket for one of the children.

[40] Based on the respondent's evidence, I find as a fact that the applicant paid her the sum of $1,200 in child support for the period of time from April 15, 2014 and October 14, 2014, in accordance with the temporary order of Justice Graham dated April 1, 2014. I also find as a fact that any money paid to the respondent in December, 2014 and January, 2015 should not be characterized as child support payments made pursuant to the order of April 1, 2014.

[41] On all of the evidence, it is appropriate that the applicant's obligation to pay child-support should commence on October 1, 2013.

The Applicant's Income

[42] Throughout the period of their relationship, the applicant always drove a taxi for Barrie Taxi. The respondent's evidence is that when she met him he had only one taxi; by the time they separated he owned three taxis. He hires other drivers to operate the other two taxis. It is her understanding that those drivers have always given him one half of the fares collected by them. Each of the drivers works approximately 12 hours per day.

[43] The respondent testified that the applicant was always working between 12 to 16 hours each day, seven days per week. She also testified that he always carried a large amount of cash on his person, and told her that he did not want to put all of his money in a bank account, but just enough to cover the bills. In terms of his operating expenses, she was aware that he paid Barrie Taxi some type of dispatch fee in the amount of $350 weekly. She is aware that most of the fares are usually paid in cash. In the last few years Barrie Taxi began to collect fares with a debit machine, and also has regular account holders who are billed. For fares that are collected by these methods, the applicant was provided with a cheque from Barrie Taxi.

[44] The respondent takes the position that income should be imputed to the applicant due to his self-employment, cash income, and due to his failure to provide the income information ordered. The pretrial orders for disclosure made in this proceeding clearly target the applicant's responsibility to provide proof of his self-employment earnings. Section 19 (1) of the Ontario Child Support Guidelines, at clause (f), provides that the Court may impute such amount of income to a parent as it considers appropriate in the circumstances, including where that parent has failed to provide income information when under a legal obligation to do so. Throughout this proceeding, there were five orders for disclosure made between the time of the first case conference on March 4, 2014, and the first trial management conference held on April 1, 2015. At the outset of trial, the respondent provided evidence that 17 individual items of disclosure remained outstanding. Although the applicant showed up in court on the first day of trial with a bundle of documents that partially responded to the orders in question, those last minute efforts did not fulfill the requirements of the court orders made in this proceeding. Of particular significance, on April 1, 2015, an order was made that the applicant was to provide written proof of income from all sources for the current year, as well as his statement of income and expenses, balance sheets and profit and loss statements for his self-employment with Barrie Taxi for 2011, 2012 and 2014. None of this was provided. He also failed to provide a current sworn financial statement, a net family property statement, copies of any applications for loans, lines of credit or credit cards since January 1, 2011, among other things, all in non-compliance with those interim disclosure orders. The applicant was given a number of opportunities to provide this financial disclosure, and this Court draws an adverse inference from his failure to do so.

[45] Despite the applicant’s failure to produce all of the financial information ordered, this Court has sufficient information to make an informed decision as to his income. In particular, the applicant's bank account statements for his BMO chequing account were provided. For 2012 the deposits into the account totalled $43,718. For a 10 month period in 2013, total deposits were $39,385.58. Over the 10 months these deposits average $3,938.56 per month. Accordingly, I find as a fact that the approximate amount of deposits for the entire year of 2013 could reasonably be calculated at $47,262.70. For 2014, total deposits were $51,801.29. By contrast, the declared total income to Canada Revenue Agency at line 150 of the applicant’s personal tax return for each of those years was as follows: 2012 - $12,098; 2013 - $7,728; and 2014 - $7,315. The other piece of evidence comes from the only financial statement filed by the applicant in this proceeding, sworn on August 28, 2013. In that financial statement he deposed that his gross income from all sources in the previous year was $29,800.67. He stated his total annual income for 2013 to be $42,400 before expenses. He also indicated in that financial statement that the total amount of his yearly expenses in 2013 was $47,280. He failed to list any debts or liabilities. The only evidence of debt that he provided was a single statement for the period ending May 8, 2015 for his Capital One credit card, showing a balance of $1,883.37.

[46] This evidence establishes that the applicant is earning cash income and not reporting it to Revenue Canada. In such circumstances, it is appropriate to gross up the applicant's income, as he is declaring and paying tax on less income than he is actually earning. As explained by Sherr, J. in Richardson v. Richardson, 2013 ONCJ 599 at para 60, this is done to ensure consistency of treatment where a party is found to have arranged his affairs to pay less tax on income. See also Sarafinchin v. Sarafinchin, 2000 22639, 189 D.L.R. (4th) 741, 2000 CarswellOnt 2640 (Ont.S.C.), cited therein.

[47] The applicant has legitimate business expenses, which are the brokerage fee paid to Barrie Taxi as testified to by the respondent, as well as motor vehicle expenses and a license fee. The respondent's counsel provided support calculations to the Court which were generous to the applicant, in that they allow for all of the business expenses declared on his income tax returns for the relevant years, to the extent that that information was provided. Even though he uses his taxi for personal use, the respondent did not ask that the vehicle expenses be reduced.

[48] The approach taken by the respondent’s counsel is a reasonable one and acceptable to the Court. For each year, the total deposits in the applicant's bank account were grossed up, with the assistance of Divorcemate software, to reflect non-taxable cash income. Business expenses as reported by the applicant on his tax return were then deducted from this grossed up amount, to reach a sum for child support purposes. As indicated in the preceding paragraph, all expenses were allowed other than the capital cost allowance for his vehicles. For 2012, that portion of his income tax return showing his business expenses was not included, and accordingly the business expenses reported in 2013 were used instead.

[49] In the results, this Court finds the applicant's income in the years indicated to have been as follows:

2012

2013

2014

Bank account deposits

$43,718

$47,262.70

$51,801.29

Gross-up Amount

$54,196

$59,345

$65,936

Business Expenses

$23,691.84

$23,691.84

$25,805

Grossed-up Amount less Expenses

$30,504.16

$35,653.16

$40,131

Table Support for 2 children

$445

$508

$581

Section 7 Expenses

[50] The respondent seeks an order requiring the applicant to share the special and extraordinary expenses commencing only as of June 1, 2015 and continuing.

[51] The respondent provided an up-to-date financial statement sworn on April 20, 2015.[^1] She works part-time on Saturdays and Sundays for 3 to 4 hours per day cleaning stores, and her earnings are $450 per month, or $5,400 annually. She also receives Child Tax Benefits and GST rebates in the amount of $1,033 per month. The respondent filed her income tax returns for 2013 and 2014. As a result of legitimate business expenses associated with her cleaning business, in 2013 her total income was $6,822, and in 2014 it was $4,583.

[52] Since the parties’ separation, the children have been involved in various extracurricular activities. The applicant has paid for half of these sports and related equipment. The respondent provided him with the receipts and he paid a 50% share. She testified that more recently, however, he was reluctant to assist with paying for the children’s swimming lessons. Both are currently enrolled in swimming at a cost of $60 each. In the past, Eathen has played floor hockey and soccer, and Brianna did ballet and tap dancing. The cost of each of these activities was relatively modest, with enrollment fee for ball hockey being the highest at $160. However, given the respondent’s income, she should not have to bear the cost of 50% of enrollment fees, together with equipment and apparel costs. The respondent testified that in addition to swimming, Brianna has asked to be enrolled in gymnastics. She testified that the expense would be between $150 and $200. Eathen wants to play both hockey and ball hockey.

[53] Even taking into account the increased amount of child support to be awarded, paying for such costs exceeds the reasonable ability of the respondent. The respondent is seeking to have each child enrolled in only one activity at a time. Given the applicant's contribution to these expenses in the past, I infer that he views such activity expenses to be reasonable and incurred in each child's best interest. This Court agrees.

[54] Given their respective current incomes of $5,400 and $40,131, the applicant will be required to pay 83% of the special and extraordinary expenses under section 7 of the Child Support Guidelines. As their method has been working so far, with the applicant paying for such expense after receiving proof of the expense from the respondent, this Court will make an order formalizing that arrangement.

Life Insurance

[55] The applicant testified in this proceeding that he continues to own a life insurance policy on his life with a face value of $100,000. He indicated that Brianna and Eathen are the beneficiaries, together with his other son Smile. It is reasonable that the applicant continue coverage for Smile, such that Brianna and Eathen be the beneficiaries of only two thirds of the face amount of the policy. The respondent seeks an order appointing her as trustee of the fund in the event of the applicant's death, in the event that the policy becomes payable while the children are still eligible for child support. This is reasonable, provided that she be designated as the trustee for only two thirds of the policy amount.

Health Insurance

[56] During the relationship, the respondent testified that the applicant had medical and/or dental health benefits available to him through Trillium Drug Plan. She is unaware of whether he continues to maintain such coverage for the children. She is also unaware as to whether he has any health benefits available to him through his employment with Barrie Taxi. In the event that either such coverage is available, her request that the children be named under those plans is a reasonable one in the circumstances, and the Court will make an order accordingly.

[57] In the result, this Court orders:

1. Commencing on October 1, 2013, and on the first day of each month thereafter and until December 31, 2013, the applicant shall pay to the respondent Guideline child support for the two children, Eathen Ali Williams, born May 21, 2005 and Brianna Maria Ali Williams, born June 26, 2009, in the amount of $445 per month, based upon income imputed to the applicant of $30,504 for 2012.

2. Commencing on January 1, 2014, and on the first day of each month thereafter and until December 31, 2014, the applicant shall pay to the respondent Guideline child support for the two children in the amount of $508 per month, based upon income imputed to the applicant of $35,653 for 2013.

3. Commencing on January 1, 2015, and on the first day of each month thereafter until further Order of the Court, the applicant shall pay to the respondent Guideline child support for the two children in the amount of $581 per month, based upon income imputed to the applicant of $40,131 for 2014.

4. The respondent acknowledges that the applicant paid to her directly the sum of $1,200 ($200 x 6 months) in child support for the period of time from April 15, 2014 to October 14, 2014 in accordance with the temporary Order of Justice Graham dated April 1, 2014.

5. The Family Responsibility Office is requested to adjust their records in accordance with the terms of this Order. They shall credit the applicant with any payments received by them, as reflected in their records, since October 1, 2013, and for the $1,200 sum as acknowledged by the respondent in paragraph 4 above.

6. The current annual income of the applicant is $40,131. The current annual income of the respondent is $5,400. The applicant shall pay 83% of the special and extraordinary expenses under section 7 of the Child Support Guidelines per month to the respondent for the children, commencing on June 1, 2015 and continuing until further Order of the Court.

7. These special and extraordinary expenses to be contributed to by the applicant are those listed in section 7 of the Child Support Guidelines, and shall include the cost of enrollment and equipment for one extracurricular activity per child at a time.

8. The respondent shall provide the applicant with documentary proof of a special and extraordinary expense within thirty (30) days of the expense being incurred. The applicant shall then pay to the respondent 83% of the expense within fourteen (14) days of receiving said proof. If the respondent does not receive payment within fourteen (14) days, payment may be enforced by the Family Responsibility Office by submitting a Statement of Arrears.

9. Should the applicant have medical and/or dental health benefits available to him through his employment or through Trillium Drug Plan, he shall maintain the children as beneficiary of those benefits. This obligation shall remain in place for so long as the children are eligible for child support.

10. The applicant shall maintain his life insurance policy on his own life with a face value of at least $100,000 and shall irrevocably designate the respondent as trustee of two thirds of the face amount of the policy, for the benefit of the children. In the event of the applicant's death, the respondent, as trustee, shall receive two thirds of the insurance proceeds on the following terms:

a. The respondent shall hold the funds as trustee and keep them invested;

b. The respondent shall apply so much of the income and/or capital of the funds to meet the deceased applicant's obligation to pay child support and special and extraordinary expenses for the children;

c. the respondent shall have discretion to apply the income and/or capital of the fund to pay for medical, educational or other expenses of the children so long as the expense is for the child's long-term benefit; and

d. When there is no longer any child for whom child support is payable, the trustee shall pay or transfer the balance to the children in equal shares.

[58] This obligation shall remain in place so long as the children are eligible for child support, but the applicant shall be free to designate a new beneficiary and/or trustee after this obligation has terminated. If at the time of the applicant's death he has not complied with this obligation, this clause shall constitute a first charge against the applicant's estate in an amount equivalent to $66,667, or the value of two thirds of the policy, whichever is greater. The applicant shall provide to the respondent a copy of his life insurance policy and an irrevocable designation within thirty (30) days of the date of this order.

[59] Child support will end for each child when,

a. The child ceases to be a child as defined in the Family Law Act;

b. the child no longer resides with the custodial parent, including when the child is away from home for school, summer employment or vacation;

c. the child turns 18 years of age, unless the child is unable to become self-supporting due to illness, disability, education or other cause;

d. the child becomes self-supporting;

e. the child attains one post-secondary degree or diploma;

f. the child turns 23 years of age;

g. the child marries; or

h. the child dies.

[60] A Support Deduction Order shall issue. Unless the Support Order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Order shall be paid to the Director, who shall pay them to the person to whom they are owed.

[61] For so long as child support is payable, the applicant and respondent shall provide updated income disclosure to each other by June 30 of each year, in accordance with section 24.1 of the Child Support Guidelines.

[62] The applicant’s approval of the form and content of this order is dispensed with.

Costs

[63] If the parties are unable to reach a decision on the costs of this case, including the respondent’s motion to strike the pleadings of the applicant, they may make written submissions to the Court in respect of an award of costs. Written submissions shall be no longer than 3 double-spaced, typed pages and may include a Bill of Costs, Offers to Settle, and any legal authorities on which a party seeks to rely.

[64] As the respondent has been successful in all of her claims, she is presumptively entitled to costs of the case, subject to an evaluation of any Offers to Settle and other considerations set out in the Family Law Rules and jurisprudence.

[65] If the parties cannot agree on the costs, the respondent shall serve and file her material by June 12, 2015. The applicant shall serve and file his material by June 19, 2015. Any reply shall be served and filed by June 24, 2015.

HEALEY J.

Released: June 2, 2015

[^1]: Trial record, Tab 6.