NEWMARKET COURT FILE NO.: FC-10-034882

DATE: 20150807

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

ROSARIO FIGLIANO
Applicant

– and –

RAFFAELA GRAZIA FIGLIANO
Respondent

Self-represented

Self-represented

HEARD: December 2, 3, 4 and 5, 2014 and May 19, 2015 followed by written submissions

REASONS FOR JUDGMENT

DOUGLAS J.

[1] This application was commenced in March 2010 and came before me by way of trial regarding the following issues:

(a) Custody;

(b) access;

(c) child support;

(d) spousal support;

(e) restraining order;

(f) equalization of net family properties;

(g) sale of family property;

(h) insurance as security for support;

(i) benefits;

(j) an accounting regarding the applicant’s neutralization of an “insurance settlement” of $107,000;

(k) divorce; and

(l) costs and interest.

[2] I have reviewed the parties’ written closing submissions. My consideration of same will be restricted to matters put in evidence at trial, not events transpiring after trial or upon which no evidence was heard.

[3] The following facts are uncontroversial:

(a) The applicant was born on January 31, 1968;

(b) the respondent was born on August 7, 1972;

(c) the parties were married August 8, 1992;

(d) the parties separated in January 2010. The applicant alleges separation on January 26, 2010. The respondent alleges separation on January 18, 2010;

(e) there are three children of the marriage, namely:

i. Alessandro Figliano born March 1, 1996 (19 years of age at time of trial);

ii. Francesco Figliano born February 13, 2003 (12 years at time of trial);

iii. Sofia Figliano born February 22, 2007 (eight years at time of trial).

(f) Alessandro graduated from St. Joan of Arc Catholic High School in June 2014. Francesco and Sofia Figliano attend St. Raphael the Archangel Catholic Elementary School in Maple;

(g) The matrimonial home at 59 Tuscana Blvd., Concord, Ontario has been sold. The respondent received her share while the applicant’s share of the home went to his Trustee in Bankruptcy after the applicant declared bankruptcy on November 18, 2010.

[4] Prior to commencement of the trial I entertained the respondent’s motion to strike the applicant’s pleadings. For reasons set out in my endorsement of December 1, 2014, on December 2, 2014, the applicant’s pleadings were struck on the financial issues and he was thereafter entitled to participate in this proceeding regarding the issues of custody and access only.

[5] On behalf of the applicant oral testimony was provided by Bruno Pistilli, the respondent, the applicant, and in reply, Sgt. Jeff Broughton. On behalf of the respondent the court received testimony from Dorothy Dellamora, Gary Carrers, Onorfilo Figliano, Sonia Pennino, Fatima DaSilva, Luciano Ridolfi and the respondent.

[6] The evidence at trial was incomplete on many important issues. This is not surprising given the parties were representing themselves. My obligation is to provide judgment on the evidence presented, not on the evidence desired.

Credibility

[7] Where the evidence of the applicant contradicts that of the respondent on an important issue, I will generally prefer the evidence of the respondent to that of the applicant. I come to this conclusion because of many examples highlighted during the trial of inconsistencies and other problems with the applicant’s evidence, examples of which include the following:

(a) He admitted having no signing authority regarding cheques at Figliano Custom Tailors, a business he maintained was owned and operated by his father. He admitted signing cheques he had no authority to sign and he admitted forging his father’s signature on cheques.

(b) He maintained that a motorcycle in the garage at the house where he resides was not his and that in fact it belonged to his father. His father does not have a licence permitting him to operate a motorcycle. This is a painfully obvious subterfuge designed to shield the Applicant’s ownership of the motorcycle from scrutiny by the Respondent and perhaps this court.

(c) Ownership of his residence at 2 St. Clare Avenue, Woodbridge is registered in the name of his parents. It is a four bedroom home. He maintained that it was his parents’ residence and that he is living there rent free because he cannot afford to pay rent; however, his father, while confirming that he was the owner of 2 St. Clare Avenue, described the applicant’s sister’s residence as his “home”. Also, the Applicant’s father shows the Applicant’s sister’s address as his residence on his driver’s licence. It appears likely that the applicant’s parents actually physically reside at the residence of the applicant’s sister while 2 St. Clare Avenue is the residence solely of the applicant. Again, it appears more likely than not that the Applicant is the beneficial owner of this property and ownership registered in the name of his parents to maintain the illusion of the Applicant having few assets

(d) He testified that he has not made suits for any hockey players; however, shortly after making that statement he contradicted himself and indicated that he had in fact made a suit for a hockey player who was getting married. He complicated matters by then indicating that his employer made a suit for the hockey player and then further that “we made him a suit”.

(e) In his trial testimony he confirmed that “we’ve made suits” for Minister Derwin Shea. During his questioning on October 5, 2011 he denied under oath that Derwin Shea was a customer and denied ever selling him clothing and indicated that he could not answer whether Derwin Shea ever purchased any clothing from Figliano Tailors. When confronted with this inconsistency at trial he sought to clarify his evidence during questioning by indicating he denied that Mr. Shea was his client because Mr. Shea was his father’s client and that it had nothing to do with him and that his father made suits for Mr. Shea. This is evidence that he did not share, even though clearly relevant, during his questioning.

(f) During trial he gave evidence that he made a wedding suit for a Dennis Dibiase and he identified the cheque relating to that transaction in the amount of $1,000; however, during questioning in October of 2011 he denied under oath that Mr. Dibiase was a customer of his and indicated that the money related to the purchase of some tickets. He described himself as “100 percent” certain that Mr. Dibiase was not a customer.

(g) At trial he gave evidence that a Mr. Bill Williams was not a customer of his or his father and he could not recall if Mr. Williams bought any tickets. During questioning under oath in October of 2011 he confirmed that the cheque from Mr. Williams in the amount of $700 was for purchase of Raptors tickets.

(h) At trial he gave evidence regarding a cheque from Derwin Shea dated March 20, 2007 in the amount of $1,900 payable to “cash” re “clothing”. He testified that Mr. Shea gave this cheque to his father and the applicant asked his father if he could borrow it because the parties were drowning in debt. This is inconsistent with evidence that he gave during questioning in October 2011 when he testified that the cheque was not for “clothing” and that the cheque was given simply to be cashed on behalf of Mr. Shea.

(i) In his statement of affairs for bankruptcy purposes he represented his rent expense as $900 per month. He confirmed that in fact there was no rent expense.

(j) During trial he gave testimony that he had fully complied with his disclosure obligations but then conceded that he had not provided the last four years of his account statements because he “could not afford to do so”.

[8] The foregoing list represents some, but not all, instances of concerning inconsistencies in the applicant’s evidence. It is not clear whether the inconsistencies are as a result of faulty memory or deliberate fabrication; regardless, the consequence is that his evidence must be considered with considerable caution when measured in the balance against the evidence of the respondent on important issues.

Custody and Access

[9] This is a divorce proceeding and accordingly s. 16 of the Divorce Act applies to the issues of custody and access.

[10] Given Alessandro’s age, practically speaking, the issues of custody of access relate only to Francesco and Sofia. It appears that Alessandro graduated from high school in June 2014. No evidence was presented as to his current academic or employment circumstances. I will invite the parties to identify in writing their respective positions regarding Alessandro, particularly in relation to:

a. Whether he is attending school, working, or both?

b. If attending school, what are the associated expenses?

c. If working, what is his income?

d. With whom is he currently residing?

[11] Depending upon the responses I will determine how next to proceed in this regard.

[12] Following separation of the parties in January 2010, they continued to cohabit at the former matrimonial home until approximately March 17, 2010 when the applicant was arrested and charged in relation to alleged incidents pertaining to his conduct toward the respondent. The charge was later withdrawn upon the Applicant entering into a Peace Bond.

[13] Following physical separation in March 2010 the parties’ evidence is largely consistent to the effect that the respondent had primary care and control of the children.

[14] In making an order under s. 16 of the Divorce Act the court must take into consideration only the best interests of the children of the marriage as determined by reference to the conditions, means, needs and other circumstances of the children. The court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child. Further, in making an order under s. 16, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[15] The applicant seeks an equal sharing of care and control of the children with joint decision making.

[16] The respondent seeks sole custody of the children and sole decision making authority.

[17] With respect to care and control of the children, the status quo has been in place for over five years; in other words, the children have resided primarily with the respondent for that length of time, subject to access by the applicant. The Applicant acknowledged during his evidence that Alessandro does not attend his home at all, something he attributes to the Respondent’s failure to impose a curfew. There was no expert testimony presented at trial favouring either party’s position. No unusual difficulties are being encountered by the children at school. The children have no particular health concerns.

[18] The applicant submits that the parties should equally share care and control of the children as it is important to have both parents’ input on the children’s education, religion and medical situations. I agree that input from both parents is important on these issues; however, an equal sharing of care and control of the children is not necessary to achieve these objectives. Care and control on the one hand and decision making on the other are separate although related issues.

[19] The applicant argues that his time with the children should be expanded to equal sharing of care and control because the children have the right to equal time with both parents and Francesco and Sofia continue to ask the applicant to have more time with him, especially during the summer months. The applicant relies in part upon an email from the respondent to third parties in which he describes the applicant as a “phenomenal person” and one who knows “the true meaning of love”.

[20] In her evidence the respondent confirmed the applicant’s involvement in the children’s swimming lessons but also noted that he was away 70 to 90 percent of the time working or attending Raptors games. According to the applicant he rarely attended karate lessons with Alessandro. She testified that the applicant was the soccer coach for Francesco and Alessandro’s team for several years. She further testified that she stayed home with the children following their births, although the applicant’s mother did babysit from time to time. Both sets of grandparents assisted in this regard.

[21] The respondent denied trying to restrict the applicant’s access to the children. She indicated that when the applicant asks for more access she generally agrees unless there is a scheduling conflict with child related events. The respondent is concerned that when the children spend time with the applicant they are often left in the care of his parents or his sister. The respondent cited the applicant’s failure to attend school events and interviews with respect to the children including Francesco’s school speech.

[22] The applicant testified that when the children are in his care they stay either with him or at his mother’s or sister’s house. The applicant is self-employed on a full-time basis and thus less available to care for the children on an equal sharing of care and control basis.

[23] The applicant relies in part upon the “draft parenting plan” entered into evidence upon which he says the parties have been relying in part. The draft parenting plan has not been signed by the parties and appears to have been achieved through mediation. It is not binding upon the parties as it does not qualify as a domestic contract within the meaning of the Family Law Act in that it is neither signed nor witnessed.

[24] The applicant confirmed that the Respondent never denied him an opportunity to attend the children’s events.

[25] The applicant submits that fathers are just as essential as mothers to the healthy development and well-being of children and that a father’s involvement makes a positive difference in children’s upbringing. He further submits that children who have involved fathers are more likely to be emotionally secure, confident to explore their surroundings and have better social connections with peers. While there is no evidence to support these broad assertions, it is only common sense that children benefit from active and loving engagement from both parents and that continuation of that engagement, to the extent reasonably possible in a post-separation environment, can only benefit children on an ongoing basis. Such is consistent with their best interests.

[26] The difficulty with the applicant’s position is that his proposed care and control regime of equal sharing is untested. In other words, whether the children would respond positively to it in relation to emotional well-being and academic performance remains unknown; on the other hand, the respondent’s primary care and control of the children has been tested by over five years of day to day living, routines associated with attending school and appointments and access visits with the applicant. There is simply no compelling reason offered by the applicant to conclude that the existing care arrangement is inconsistent with the best interests of the children. I am of the view that disturbing this long established status quo by testing an unproven parenting model would be destabilizing to the children and inconsistent with their best interests.

[27] The draft parenting plan which was negotiated with the assistance of Dr. Barbara Fidler, was never finalized but it does contain elements which would be of assistance to the parties and consistent with the best interests of the children. Both parties have expressed support for the inclusion of most of the non-schedule related components of the terms developed with Dr. Fidler’s assistance; accordingly I will include some of those elements in my final judgment below.

[28] For the foregoing reasons, the children shall continue to reside primarily with the Respondent subject to the additional terms set out below.

Decision making and communication regarding children

[29] The applicant seeks joint decision making with respect to the children.

[30] The respondent seeks and sole custody in respect of decision making.

[31] As indicated above, I have concluded that primary care and control of the children should go to the respondent. That leaves the issue of decision making authority.

[32] It is trite to say that for joint decision making to be effective and workably consistent with the best interests of the children, it is preferable and in most cases necessary for the parties to have the capacity to communicate constructively. While litigation is underway it is not surprising to see parties struggling to communicate with one another in a constructive fashion. Posturing for the court often trumps applying common sense for the best interests of the children.

[33] The evidence before me confirms that on several occasions the applicant refused to communicate directly with the Respondent regarding straightforward parenting issues such as travel consents and contribution toward swimming expenses.

[34] Forcing the respondent to engage the services of counsel and incur the delays that are necessarily associated with communications between counsel represents, in my view, a deliberate effort on the part of the applicant to be obstinate and uncooperative. It is clear from his evidence that he views the respondent as the person responsible for the breakdown in the relationship given her admission to him of having started another relationship and it appears the applicant was determined to punish the respondent for her perceived misbehaviour. Punishment came, in part, in the form of his lack of co-operation on these issues.

[35] I see no evidence to support the conclusion that this will change in the foreseeable future, although that is certainly possible and, if it does, may constitute a material change in circumstances.

[36] Requiring the parties to jointly decide major issues affecting the welfare of the children would, in these circumstances, probably prove unworkable and work against the best interests of the children.

[37] Having said that, I nevertheless see no basis for exclusion of the applicant’s participation in decision making altogether.

[38] Therefore, I will order that the respondent have sole custody of the children and that she consult with the applicant regarding major decisions affecting the welfare of the children.

[39] Communication between the parties should occur via text, email or Our Family Wizard or similar program.

Applicant’s Income

[40] One of the primary issues in this proceeding is the applicant’s income for the purpose of addressing the issues of child and spousal support.

[41] While the evidence is wholly imperfect, even from the imperfect evidence before me a clear picture emerges of the Applicant attempting to present himself as a man without assets or means. Again, due to major inconsistencies, I reject this position advanced by the Applicant for reasons including those that follow.

[42] There is evidence that the applicant has a Range Rover motor vehicle parked in his garage and which he uses. The applicant claims that it is owned by his sister; however, this is contradicted by his references in text messages to “my truck”. He uses the truck at times to manipulate Alessandro’s behaviour thus demonstrating his control of the truck. Yet he says the truck is not his.

[43] In a Facebook conversation he refers to the orange motorcycle in his garage as “mine” and indicates that “Alessandro has his own” referring to another motorcycle, perhaps one of those in his garage. The applicant testified that two of the three motorcycles in his garage were being stored there by a friend who was going through a separation, and of course the Harley Davidson motorcycle is registered in the name of his father.

[44] The import of the text messages between the applicant and Alessandro is clear that the applicant has acquired at least two new motorcycles and Francesco was to have the “first choice”. The details of acquisition of these motorcycles were not presented at trial.

[45] The applicant involved Alessandro in the purchase of the Range Rover motor vehicle including deciding on rims and text messages suggest that Alessandro viewed the vehicle as his.

[46] On balance I conclude it is much more likely than not that the Ranger Rover, while registered in his sister’s name, actually belongs beneficially to the Applicant. Likewise regarding the Harley Davidson motorcycle registered to his father.

[47] In an email to the respondent dated September 30, 2011 the applicant refers to “my motorcycle”. This is inconsistent with his evidence that he does not own a motorcycle.

[48] The house in which the Applicant resides is registered in the names of his parents; however, for reasons set out above, I believe it more likely that the Applicant is the beneficial owner of the house. His efforts to conceal assets from scrutiny belie a desire to deceive the court as to his true financial means.

[49] In November 2012 the applicant paid $540 in cash for an iPad Mini.

[50] In an email dated November 30, 2013 to the respondent the applicant stated: “I do everything for the kids but not through your hands because you will buy your lover gifts and pay for hotels.” This suggests the availability of resources to the applicant that he will not be providing to the respondent by way of child support.

[51] In an undated credit application he identified himself as owner of Figliano Custom Tailors. In a Declaration dated October 27, 2008 he confirmed his income was $75,000 per annum. A letter dated November 5, 2008 signed by his father confirmed that the applicant has been the president of Figliano Custom Tailors for over 20 years and that his “take home” is approximately $75,000 including salaries and bonus. His father further represents in a letter that the applicant “runs the company and makes all decisions for this company all day to day operation sees through.” This evidence is inconsistent with the Applicant’s evidence that he was simply an employee or salesman at his father’s business who helped take measurements from time to time.

[52] Over three dozen cheques were tendered in evidence by the respondent through her cross-examination of the applicant. These cheques ranged in quantum from $150 to $5,000. Many of these cheques he claimed, although made out to “cash” were for payment of Raptors tickets or cheques that he cashed for friends in need. There is no evidence confirming that the applicant acquired Raptors tickets and resold them apart from his own verbal testimony. Similarly, the applicant’s evidence that he was cashing cheques on behalf of friends who were in need is inconsistent with the applicant’s evidence of his dire financial circumstances; after all, if his situation was so tight financially, how could he so readily access cash for friends in need?

[53] The applicant’s financial statements filed in this trial may be summarized as follows:

(a) Financial Statement sworn April 29, 2011 indicates the applicant is self-employed carrying on business under the name of Ross Figliano Sales and Service. His gross income from all sources is approximately $26,000 and he shows total monthly expenses of $2,060. On the date of separation he showed total debts owing to members of his family in the amount of $20,000 and as of the date of swearing the financial statement $87,762.

(b) Financial Statement sworn August 26, 2014 indicates that he is self-employed with gross income from all sources of $26,000. He attached a statement of business or professional activities identifying gross self-employment revenue of $31,347, deductions of $13,061, leaving net income of $18,286. These figures related to the fiscal period from January 1, 2014 to July 31, 2014. His monthly expenses remained roughly the same, totalling $2,169 per month. He showed the previous family debts noted above as having been extinguished by bankruptcy, but new debts owing to his parents and sister totalling $45,400, child support arrears of $75,023 and costs awarded to respondent and outstanding in the amount of $50,000.

[54] The applicant’s income tax returns can be summarized as follows:

(a) Post-bankruptcy return for the fiscal period November 18, 2010 to December 31, 2010:

i. Gross self-employment income $3,327

ii. Net self-employment income $2,454.88

iii. Total line 150 income $2,454.88

iv. Post-Bankruptcy Notice of Assessment showed total Line 150 income of $2,526

v. Pre-Bankruptcy Notice of Assessment showed total Line 150 income of $17,845

(b) 2011:

i. gross self-employment income $21,620

ii. Net self-employment income $12,586.51

iii. Total Line 150 income $12,586

iv. Notice of Assessment showed total Line 150 income of $12,586

(c) 2012:

i. Gross self-employment income $21,254

ii. Net self-employment income $12,764

iii. Total Line 150 income $12,764

iv. Notice of Assessment showed total Line 150 income of $12,764

(d) 2013:

i. gross self-employment income $22,083

ii. Net self-employment income $12,349

iii. Total Line 150 income $12,349

(e) Notices of Assessment for 2013 and 2014 not provided.

[55] In his written submissions the applicant asks that “imputed income be adjusted to reflect the actual income of the applicant”. Unfortunately, the applicant does not identify his position as to what his actual income is. That is left for me to determine.

[56] I shall presume that the applicant maintains that his actual income is consistent with that which he reported to Canada Revenue Agency in his most recent income tax return, being $12,349 according to his 2013 Return.

[57] The Applicant maintains that he is self-employed operating as “Custom Made Suits” travelling to meet customers. No detailed information was included with his August 26, 2014 Financial Statement to assist in confirming the accuracy of the numbers referred to therein. There is no confirming evidence confirming gross income. There is no evidence confirming business expenses.

[58] For child support purposes the Child Support Guidelines provides at s. 19 as follows:

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

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

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

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

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

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

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

(g) the spouse unreasonably deducts expenses from income;

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

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

[59] If the evidence supports a finding that a parent is intentionally under-employed, s. 19 is not an invitation to the court to arbitrarily select an amount as imputed income. The amount selected as an exercise of the court’s discretion must be grounded in the evidence. A court must consider what is reasonable in the circumstances (see Drygala v. Pauli 2002 41868 (ON CA), [2002] O.J. No. 3731 Ont. C.A.).

[60] The categories listed in s. 19(1) above are merely examples of situations where income may be imputed. A fundamental principle is that the court must estimate the actual means which the parent has available for child support (see Riel v. Holland 2003 3433 (ON CA), [2003] O.J. No. 3901 Ont. C.A.).

[61] The Applicant has failed to provide up to date income information as required by the Child Support Guidelines. This obligation continues regardless of whether his pleadings have been struck; doing so only prevents the Applicant from presenting or advancing evidence in support of his financial claims; it does not absolve him from compliance with his disclosure obligations.

[62] As noted above, there is very good reason to question the applicant’s credibility in presenting his evidence, including evidence regarding his income. Quite apart from the factual inconsistencies, some of which have been outlined above, it is clear that the applicant has routinely had access to significant amounts of cash and he has not offered an adequate explanation for same. Also, I find that the applicant has access to significant assets including the motorcycle which, though registered in his father’s name, is most probably beneficially owned at least by the applicant. He has described it as his motorcycle in his emails and his father does not hold a licence that would permit him to operate the motor cycle. The applicant has described the Range Rover that he drives as “my truck” and he has taken credit for providing motorcycles for his sons suggesting that he is the person responsible for their acquisition. He has purchased electronics with cash. On balance of probabilities, the evidence supports the conclusion that the applicant is living beyond his disclosed means and manipulating evidence in an attempt to cover his tracks.

[63] For the foregoing reasons, I find that the applicant’s income is significantly more than the income that he is reporting to the Canada Revenue Agency in his income tax returns.

[64] The question is what is a fair and reasonable income to impute to the applicant in the circumstances.

[65] The respondent’s position is that income of $103,144 ought to be imputed to the applicant. She relies on the reasoning set out in Justice Kaufman’s ruling on motion dated May 1, 2013 which concluded that income of $103,144 ought to be imputed to the Applicant (being $75,000 grossed up for tax).

[66] Evidence that the applicant’s income was as high as $75,000 is somewhat stale in that such evidence is dated 2008, seven years ago. The question for me is what is the applicant’s income now, or what is his ability to earn income now? Unfortunately, the Applicant, who is the in the best position to provide this information and has a positive duty to do so, has failed to provide meaningful up to date income disclosure including proof of his income from all sources in 2014. I am entitled to and I do draw an adverse inference in this regard. His obligation to provide meaningful disclosure pre-dated my order striking his pleadings on the financial issues and survives such order.

[67] The evidence is incomplete and imperfect but I must find a figure that is reasonable and fair on the evidence that is available to me at trial. I do not have a copy of the applicant’s 2014 income tax return, a document that is wholly within his power to provide. He provided no disclosure regarding his 2014 income.

[68] I conclude that income of $99,061 (i.e. income of $12,500 representing income he likely reports in his income tax return plus $60,000 unreported but imputed income enjoyed on a tax free basis and thus grossed up to $86,561 for child purposes) for the following reasons:

(a) I reject the applicant’s evidence that the cheques that he was receiving were all for the purchase of Raptor’s tickets given the inconsistencies in the applicant’s evidence in this regard highlighted above in part. It is more likely that these cheques were in payment for custom suits made by the applicant for various customers. There is no reason to believe that his practice in this regard has changed.

(b) The Applicant’s Financial Statement sworn August 26, 2014 includes a Statement of Business Activities for the period January 1, 2014 to July 31, 2014 resulting in alleged and unconfirmed net income of $18,286. Extrapolating this net income over the year results in net income for all of 2014 in the amount of $31,482, compared to the $26,000 alleged in his Financial Statement.

(c) The applicant’s earning ability is probably best measured by his representations in credit applications that his income was $75,000 per annum in 2008 which, with modest annual improvements from that time to reflect expansion of his business (whether actual or reasonably to be expected) can bring the total income of the applicant into the realm of $80,000 per annum.

(d) This level of income is more consistent with the applicant’s luxury acquisitions both for himself and the boys in a post-separation environment.

(e) The Respondent has taken the position in her submissions that the Applicant’s income ought to be imputed at $103,144 after gross up.

(f) His Income Tax Returns declare income that appears inconsistent with his lifestyle and enjoyment of luxury items, and are therefore unreliable.

(g) An adverse inference is drawn from his failure to provide complete income disclosure.

(h) The Applicant’s evidence at trial on this issue is riddled with inconsistencies and is unreliable.

(i) The Applicant appears fond of cash transactions that are difficult, if not impossible, to track for taxation and support purposes. This reality must be reflected to the extent reasonably possible given the available evidence.

(j) The Applicant testified that he disposed of his tailoring equipment. The Applicant’s father testified that the Applicant’s equipment remained in the basement of the Applicant’s residence. Given my concerns regarding the Applicant’s evidence, I prefer the evidence of his father that this equipment remains available to the Applicant for income-generating purposes.

Respondent’s Income

[69] There does not appear to be a significant issue with respect to the respondent’s income for support purposes.

[70] The applicant’s written submissions do not identify the applicant’s position with respect to income to be attributed to the respondent for support purposes. The applicant does express concern regarding never having received the respondent’s “detailed tax returns” instead of only her tax summaries. He also expresses concern in his submissions that he has never received “information regarding child tax credits, sales tax credits, property tax credits any other federal/provincial tax credits that would show we were a low income family”. I do not have evidence that this information was requested.

[71] In any event, the evidence that is available to me regarding the respondent’s income includes the following:

(a) Financial statement sworn November 10, 2014 confirming that she is employed by the York Catholic District School Board, that she earned gross income in the last year of $43,573, that her income at the time she swore the statement (excluding support) was $1,600 per month before deductions (i.e. $19,200/year), that her total monthly expenses were $9,532 per month.

(b) Her financial statement sworn March 25, 2010 confirms employment income of $1,244 per month working 15 hours per week at an hourly rate of $25.51. She was employed by the York Catholic District School Board. Her monthly expenses totaled $2,023 per month.

(c) Her financial statement sworn June 22, 2010 indicating that she is employed by the York Catholic District School Board but on unpaid leave since March 22, 2010.

(d) Financial statement sworn December 14, 2010 confirming her employment with York Catholic District School Board, disclosing no employment income.

(e) The Respondent is employed on a part-time basis as an educational assistant.

[72] Her notices of assessment confirm line 150 total income for the following years as follows:

(a) 2006 total income is $7,591

(b) 2007 total income line 150 is $7,918

(c) 2008 line 150 total income is $9,092

(d) 2009 line 150 total income is $18,704

(e) 2010 line 150 total income is $18,240

(f) 2011 line 150 total income is $38,497

(g) 2012 line 150 total income is $36,555

(h) 2013 line 150 total income is $43,573

[73] There was scant evidence at trial regarding the Respondent’s income.

[74] In her written submissions the respondent’s position regarding her income is not identified.

[75] I find that the respondent’s income is $39,500 for support purposes. I do so for the following reasons:

a. The most recent evidence of her income is her Financial Statement sworn November 10, 2014 showing income from employment of $19,200 per year.

b. Her 2013 Income Tax Return shows income of $43,573.

c. She failed to provide proof of her income in 2014 or 2015.

d. I have not been provided an adequate explanation for the drop in her income from 2013 to November 2014 when she swore her most recent Financial Statement.

e. The average income of her last three years disclosed tax returns is $39,500 and in the absence of further or better evidence this is a reasonable figure to use representing the Respondent’s demonstrated ability to earn income.

Equalization

[76] Both parties identify equalization as an issue in respect of which they are advancing claims. The applicant is not entitled to pursue this financial issue by virtue of my having struck his pleadings in this regard.

[77] The applicant made an assignment in bankruptcy in November of 2010. As a consequence the respondent’s claim for an equalizing payment and for “sale of family property” is stayed by operation of the Bankruptcy Act.

[78] There is therefore no jurisdiction pursuant to which any relief can be granted to the respondent in respect of her claim in this regard.

Restraining Order

[79] Each party seeks a restraining order against the other.

[80] The parties separated in January of 2010. On March 17, 2012 the Applicant was charged with assault against the Respondent. This charge was later withdrawn upon the Applicant entering into a Peace Bond. In relation to this event I have no reason to prefer the Respondent’s assertion over the Applicant’s denials. Although the applicant gave evidence of having received threats which she attributes to the applicant, there is no evidence confirming that the applicant was responsible. I am therefore left with no evidence that either party has misconducted themselves in a manner that would suggest a restraining order of any variety would be appropriate.

[81] I am therefore dismissing the claims of both parties in this regard.

Child Support

[82] Having found that the Applicant’s income is $99,061 for support purposes, he shall be required to pay base child support pursuant to the Child Support Guidelines. The quantum will be determined after I receive submissions from the parties regarding Alessandro’s current circumstances.

Special or Extraordinary Expenses

[83] Pursuant to the Child Support Guidelines special or extraordinary expenses are to be shared proportionately to the parties’ respective incomes.

[84] There are no specific extraordinary expenses identified in the evidence but an order that the parties share any such expenses proportionally to their respective incomes is appropriate in the more precise terms as set out below.

Spousal Support

[85] Spousal support is governed by s.15.2 of the Divorce Act. The factors and objectives to consider are set out in s.15.2(4) and (6). Unfortunately the evidence presented at trial provided scant assistance in considering this issue.

[86] The parties were married for 17 years. The Applicant is 47 years old and the Respondent is 42 years old. The evidence reveals that the Respondent stayed at home initially with the children, thus absenting herself from the workplace.

[87] There is only vague and general evidence as to the Respondent’s economic disadvantages arising from the marriage or its breakdown. Similarly the financial consequences to the Respondent arising from the care of the children are foggy at best. While it is likely the Respondent is experiencing economic hardship, such may well be a consequence of the Applicant’s failure to pay any support, child or spousal.

[88] Based solely upon the parties’ incomes as found and duration of marriage, the Spousal Support Advisory Guidelines suggest a range of support as follows:

a. High $781

b. Mid $483

c. Low $156

[89] The SSAG figures are not binding upon the Court, but they do represent a useful tool in determining a reasonable quantum; however, for the reasons outlined above I am simply not persuaded that the evidence is sufficient to form a basis, on balance, for either a compensatory or non-compensatory spousal support order. I am dismissing the Respondent’s claim in this regard.

Insurance and Benefits

[90] In his Financial Statement the Applicant discloses his ownership of an insurance policy with Empire Life. I am not sure if this is his only policy. It is reasonable to require the Applicant to maintain security for his support obligations.

[91] Therefore there shall be further orders in this regard as set out below.

Conclusion and Order

[92] For all of the foregoing reasons, judgment shall issue as follows:

(1) The Respondent Mother shall have sole custody of the children Alessandro Figliano born March 1, 1996, Francesco Figliano born February 13, 2003 and Sofia Figliano born February 22, 2007 and the children shall reside primarily with the Respondent.

(2) The Applicant shall have access with Alessandro in accordance with Alessandro’s wishes.

(3) The Applicant will have reasonable access with the children Francesco and Sofia upon reasonable notice to the Respondent, such access to include alternating weekends from Friday after school until Sunday after dinner, such weekend access to be extended to include the extra day of a Holiday weekend. The Applicant Father shall also be entitled to at least one mid-week visit with Francesco and Sofia per week, non-overnight.

(4) Regardless of the regular access schedule the children shall be with the Applicant from 9:00 a.m. to 7:00 p.m. on Father’s Day and with the Respondent from 9:00 a.m. to 7:00 p.m. on Mother’s Day.

(5) Each party is entitled to reasonable telephone access with the children while the children are in the care of the other party.

(6) During the summer the usual schedule shall continue subject to the following:

a. The Mother will plan two annual family picnics and she will notify the Father by February 15 each year. The Father’s annual family picnic is regularly scheduled on the Sunday after Father’s Day in June. If the annual picnics fall on the other parent’s weekend with the children, the children will be picked up at 6:00 p.m. the evening before the picnic and dropped off by 10:00 a.m. the following day.

b. In creating the summer schedule the parties will select events in the following order: Family Picnic dates, Ride for Sick Kids, the parties’ respective vacation dates, camp dates.

c. The Mother will plan and register the children for summer camp, subject to the Father’s prior consent if contribution from him is sought to the cost thereof.

d. For the parties’ respective summer vacations, the children shall be with each parent for seven consecutive nights. In even numbered years the Mother and in odd numbered years the Father shall have the first option to select the dates. The parent who has the first option to select dates shall provide notice of these dates to the other parent no later than March 1st of the subject year and the other parent shall do the same no later than March 15th of the subject year. If notice is not provided as required, the option to select dates automatically goes to the other parent who shall advise the other parent in writing within 48 hours which dates have been selected.

e. The annual Ride for Sick Kids fundraiser usually falls on the fourth Sunday in August. If this annual event does not fall on the Mother’s regularly scheduled weekend, the Mother shall pick up the children the night before at 6:00 p.m. and be entitled to retain the children until Sunday night at 9:00 p.m.

(7) Regarding the Christmas School Holidays, the Holidays begin at the close of school and end the morning of the first day school resumes. In odd numbered years the children shall be with the Father December 24 at 10:00 a.m. to December 25 at 10:00 a.m. and January 1st at 10:00 a.m. to January 2 at 10:00 a.m. drop-off to Mother or at school as the case may be. In odd numbered years the children shall be with the Mother from December 25 at 10:00 a.m. to December 26 at 10:00 a.m. and December 31st at 10:00 a.m. to January 1st at 10:00 a.m. In even numbered years the children shall be with Mother from December 24 at 10:00 to December 25 at 10:00 a.m. and from January 1st at 10:00 a.m. to January 2 at 10:00 a.m. In even numbered years the children shall be with the Father from December 25 at 10:00 a.m. to December 26 at 10:00 a.m. and from December 31st at 10:00 a.m. to January 1st at 10:00 a.m. In both odd and even numbered years, the remainder of the days not accounted for above will be shared by the parties in accordance with the usual schedule.

(8) Regarding the Thanksgiving long weekend in even numbered years the children shall be with the Father from Friday pickup at school at 3:30 until Sunday at 10:00 a.m., and with Mother from Sunday at 10:00 a.m. through Thanksgiving Monday. In odd numbered years the children shall be with the Mother from Friday pickup at school at 3:30 until Sunday at 10:00 a.m., and with Father from Sunday at 10:00 a.m. through Thanksgiving Monday to drop off at school on Tuesday.

(9) The Easter, Labour Day, Family Day, Victoria Day, Canada Day and Simcoe Day long weekends shall be shared as follows:

a. In even numbered years the children will be with Father from Thursday pickup at school at 3:30 to Saturday at 10:00 a.m. and with Mother from Saturday at 10:00 a.m. to the end of the long weekend. In odd numbered years the children shall be with Mother from Thursday to Saturday at 10:00 a.m. and with Father from Saturday at 10:00 a.m. through to end of long weekend.

(10) Regarding March Break, the usual schedule will continue during the March Break except that during even numbered years Mother, and odd numbered years Father, shall have the option to take the children on vacation for seven consecutive days, keeping that parent’s usually scheduled weekend, upon 60 days written notice to the other parent.

(11) Regarding Halloween, the usual schedule shall continue. Both parents shall participate with the children in the celebrations in the neighborhood of the resident parent, who shall also be responsible for the children’s costumes.

(12) The Applicant shall be entitled to such further and other access with the children as the parties may agree upon from time to time.

(13) When one parent cannot be available to care for the children during the usual and/or holiday scheduled time for a period of 24 hours or more the other parent shall be given the right of first refusal to care for the children prior to a third party providing child care assistance. If the other parent cannot accommodate the request, the resident parent is responsible for arranging alternate child care and will inform the other parent of who will be caring for the children.

(14) If a child is ill on a school day and unable to attend school, the resident parent will notify the other parent and if the resident parent is unable to care for the child until drop-off, the other parent has first right of refusal to care for the child prior to a third party providing child care.

(15) The parties shall communicate regarding the children by way of email, text message or Our Family Wizard, including any requests for modification to the schedule set out herein. A response shall be provided by the answering party within 24 hours.

(16) Neither party shall make plans for the children when they are scheduled to be with the other parent, without first having secured the consent in writing of the other parent. In the event of emergency or unforeseen circumstances such as illness or inclement weather, changes in the scheduled pick-up and return times shall be communicated to the other parent as soon as possible.

(17) Each party shall be entitled to secure third party records relating to the general health and welfare of the children, including doctors, dentists, psychologists, social workers, counsellors, tutors, consultants, occupational therapists, orthodontists, etc. Each party shall execute such authorizations as are reasonably necessary to facilitate such access.

(18) The Mother shall be responsible for taking the children to routine medical and dental appointments. She shall advise the Father in advance of any scheduled appointments. He may attend. If she cannot take the children to a health care appointment she shall give the Father the first option to take the children. The party shall advise the other in advance if either takes the children to any health care professional.

(19) The Respondent shall be entitled to retain the children’s health cards and vaccination records subject to her obligation to provide copies to the Applicant.

(20) The Mother shall be entitled to decide major issues affecting the general welfare of the children including those of a medical or educational nature, subject to her obligation to consult with the Father in advance.

(21) The children shall be raised Roman Catholic.

(22) The parents may each attend Parent/Teacher meetings.

(23) Both parents shall be entitled to receive academic records pertaining to the children.

(24) Neither party shall remove the children from the Province of Ontario without the prior written consent of the other, such consent not to be unreasonably withheld.

(25) Neither party shall speak disparagingly of the other parent in the presence of the children, nor permit third parties to do so.

(26) The Respondent shall be entitled to retain the children’s passports and birth certificates subject to providing same to the Applicant as reasonably required to accommodate his travel with the children.

(27) Each party shall provide to the other at least 60 days’ notice in writing of any proposed change in residential address.

(28) The parties shall share the children’s special or extraordinary expenses pursuant to s. 7 of the Child Support Guidelines, two-thirds to the Applicant and one-third to the Respondent in proportion to their respective incomes. An expense subject to sharing shall be as agreed by the parties in writing with such agreement not to be unreasonably withheld.

(29) For support purposes the Applicant’s income is $99,061 and the Respondent’s income is $39,500.

(30) Child support quantum shall be determined following receipt of brief additional submissions from the parties regarding Alessandro and in particular:

a. Whether he is attending school, working or both?

b. If attending school, what are the associated expenses?

c. If working, what is his income?

d. With whom is he currently residing?

(31) The Applicant shall designate the Respondent as irrevocable beneficiary pursuant to his life insurance policies, including his Empire Life insurance policy, as security for his support obligations. He shall maintain such life insurance coverage for so long as he is required to pay child or spousal support.

(32) The parties’ claims for restraining order are dismissed.

(33) The Respondent’s claim for equalization is stayed.

(34) The Applicant shall provide immediate proof of his existing life insurance coverage to the Respondent and annually thereafter by August 1st of each year commencing August 1, 2016 for so long as he is required to maintain such insurance as security for support.

(35) The parties shall exchange copies of their Income Tax Returns, attachments and any Notices of Assessment or Re-assessment by May 1st each year. The Applicant shall provide such additional disclosure as may be requested of him by the Respondent in writing regarding his income including monthly bank statements, monthly credit card statements, business financial statements and ledgers.

(36) Within 30 days the parties shall make written submissions by filing same with my Judicial Assistant at Barrie - as to the following issues:

a. Costs, with such submissions being limited to three pages each;

b. Alessandro issues per paragraph 30 above; and

c. Details of Applicant’s current life insurance policies.

DOUGLAS J.

Released: August 7, 2015