Court File and Parties

Court File No.: FC-08-3322-2 Date: 2017/05/11 Ontario Superior Court of Justice

Between: Lanita Rachelle Luckman (born Dreher), Applicant And: Brent Luckman, Respondent

Counsel: Leighann Burns, Counsel for the Applicant Christopher Rutherford, Counsel for the Respondent

Heard: November 8, December 20 and 21, 2016

Reasons for judgment

Overview

1The applicant (“Lanita”) and the respondent (“Brent”) started living together in 1996 then married each other on December 6, 2003. There are two children of the marriage namely Kennedy, born April 27, 2004 and Kade, born April 8, 2006.

2The parties separated on November 22, 2008 when Brent assaulted Lanita. Brent was convicted of assault and careless storage of a firearm and placed on 18 months probation.

3On June 21, 2012, the parties settled the issues of custody and access based on Minutes of Settlement. The Honourable Justice Kershman ordered:

(a) Lanita shall have sole custody of the children, Kennedy Luckman, born April 27, 2004 and Kade Luckman, born April 8, 2006;

(b) Lanita shall be free to obtain passports and other legal documents for the children and to travel with the children without the Brent’s consent;

(c) Brent shall have telephone and/or Skype access with the children each Tuesday evening at 6 p.m. and any other time as initiated by the children;

(d) Brent shall have access to the children on alternate weekends from Friday at 5:30 p.m. to Sunday at 7:30 p.m. which shall extend to Monday at 7:30 p.m. should access fall on a statutory long weekend;

(e) should Brent not be able to exercise weekend access, he shall advise Lanita in advance and shall have telephone or Skype access between 5 and 6 p.m. on the Saturday of the missed weekend;

(f) Brent shall have access for the seven day period preceding the children’s return to school at the end of their Christmas break; and

(g) Brent shall have access to the children for two non-consecutive weeks in each of July and August.

4By Divorce Order dated August 23, 2012, pursuant to Minutes of Settlement, the Honourable Justice Kershman granted Lanita’s request to relocate with the children to Regina, Saskatchewan and granted other relief as follows:

(a) ordered Brent pay table child support of $1,184 per month commencing August 1, 2012 and the first day of each month thereafter based on his income of $82,000 plus his proportional contribution section 7 expenses;

(b) ordered Brent to maintain in force life insurance to secure his child support the sum of $200,000 payable to the applicant mother in trust for the children;

(c) ordered that the contact between the parties related to the children was to be conducted by email or text message and only in case of emergency was Brent permitted to telephone Lanita;

(d) ordered that during access exchanges, Brent was to remain in his vehicle except for the purpose of assisting the children with their car seats, seatbelts or luggage;

(e) ordered Brent no later than June 1, 2013 and every year thereafter, to provide to Lanita copies of this T4, tax return, notice of assessment and reassessment and any other information necessary to determine his income in any given year;

(f) ordered Brent to pay the sum of $10,000 on or before September 27, 2012 as an amount due and owing by him to Lanita for section 7 expenses. In the event the amount was not paid by that date, the amount would be increased from $10,000-$20,000 and would be collectible as child support. In addition, a further sum of $12,000 on account of section 7 expenses was to be paid by Brent on or before March 27, 2013. In the event that this amount was not paid on or before that date, that amount was to increase from $12,000 to $24,000 and would be collectible as child support by the appropriate Family Responsibility Office;

(g) ordered Brent to add the children to his benefits plan, ordered that Lanita could submit her receipts to Brent’s benefit plan directly and that Brent would sign whatever consents and directions are necessary to ensure that Lanita can submit the claims and receive the payments; and

(h) granted Brent additional access to the children from Saturday to Saturday during Spring break in odd numbered years.

Motion to Change

5On November 5, 2014, Brent brought a Motion to Change the access, vary the child support obligations retroactive to October 2012 and other relief. Lanita opposes any variation and seeks her own relief set out herein.

Issues

6The issues raised in this litigation are as follows:

(a) has there been a material change in Brent’s circumstances?

(b) what is Brent’s contributions for special and extraordinary expenses for the calendar years 2012, 2013, 2014 and 2015;

(c) should Brent’s obligation to maintain security for child support be terminated effective January 1, 2013;

(d) should Brent be required to obtain extended health/benefit plan coverage for the benefit of the children;

(e) what access should Brent have to his two children?

(f) should Brent be permitted to travel with the children, including international travel, on the provision of a written itinerary including flight details (carrier and flight number) and accommodation location to Lanita within 10 days prior to departure;

(g) should Lanita be ordered to provide to Brent the children’s passports and shall sign a travel consent letter to facilitate Brent’s travel with the children;

(h) what restrictions should be placed upon Brent’s Canadian passport, American green card and other travel documents when his access to his children;

(i) should Brent be prohibited from bringing any further motions without leaving the court; and

(j) costs.

7On November 8, 2016, the parties appeared to argue their respective claims for relief. Both parties filed extensive affidavit material and I indicated that I could not make decisions regarding credibility without hearing oral testimony. I adjourned the motion to December 20 and 21, 2016 and ordered that the affidavit material would be considered the evidence of each party, that each party may be cross-examined and that then the parties would make submissions.

8On December 20, 2016, both parties were cross-examined and the parties made the respective submissions.

Position of the Parties on the Child Support Issues

9Brent seeks the following relief:

(a) an order varying all or part of the child support arrears owed by Brent;

(b) in the alternative, an order that Brent be credited for payments and monies previously made and received through the Family Responsibility Office for child support for the calendar years 2013, 2014 and 2015;

(c) in the alternative, an order determining Brent’s retroactive periodic child support obligations for the child support for the years 2012, 2013, 2014 and 2015;

(d) in the alternative, an order that Brent be credited for payments and monies previously made and received through the Family Responsibility Office for child support for the calendar years 2012, 2013, 2014 and 2015;

(e) an order determining Brent’s ongoing child support obligations for the period from January 1, 2016 to present day;

(f) an order determining Brent’s contributions for special and extraordinary expenses for the calendar years 2012, 2013, 2014 and 2015;

(g) an order that Brent’s obligation to maintain security for child support be terminated effective January 1, 2013;

(h) an order that Brent is not required to obtain extended health/benefit plan coverage for the benefit of the children;

(i) cost on a substantial indemnity basis; and

(j) such further and other relief as counsel may advise in this honourable Court permit.

10Lanita’s seeks the following relief:

(a) that Brent’s application to vary the child support order of the Honourable Justice Kershman dated August 23, 2012 be dismissed with costs;

(b) an order fixing the child support and extraordinary expenses amounts owed to be merely paid in full or in two equal instalments, the first being immediate and the second within three months, or, in the alternative;

(c) an order fixing the amounts of child support and extraordinary expenses payable at levels that reflect the respondent’s lifestyle, rather than his income claims;

(d) an order prohibiting Brent from bringing any further motions without leaving the court;

(e) costs on a substantial indemnity basis; and

(f) such further and other relief as is honourable Court deems just.

Brent’s Income

11Since the party’s separation in 2008, determining Brent’s income has been problematic. He has consistently stated that he is working on projects that will generate income but has no income to pay support.

12Brent has had a history of working as an entrepreneur. He does not have a university degree or college diploma but has been working since the age of 19. He has worked as a retail sales clerk, store manager, industrial commercial sales person, regional sales manager in Ottawa, worked in Dallas, Texas as the head distributor of Canadian sales for Texas instruments, he has been the manufacturer’s representative for Toshiba Canada to name a few.

13From 1989 to 2008, he has founded a series of companies in the technology field. In 2008, he and Roland Deschamps founded Maxa Fuel Saver Inc. (“Maxa”). In 2010, he founded DDCI, a Delaware company that sold HP products. He received commissions until the third quarter of 2011 when he ceased employment.

14In July 2012, he obtained employment with Ontario Environmental Solutions (“OES”) that lasted six weeks. In 2013, he travelled to the Ukraine to pursue business opportunities for Maxa. In 2014, he and another individual started a company to work on research and development for over the top television. He did some work in 2015 for the company until May 2015.

15In January 2016, he was involved in the formation of a Los Angeles-based technology company who was going to enter the on demand liquor delivery service in the United States with incorporation to occur in November 2016.

16In June 2016, he co-founded Totem Liquors and negotiated to be the exclusive agent for the sale of spirits and wines from Rebel Spirits, located in Los Angeles, California, for the Canadian market.

Financial Information as Basis for the Final Order

17Prior to the final agreement of 2012, Lanita believed that Brent had other sources of income. Brent’s actions do not support the declared income on his income tax returns. For example:

(a) Brent consistently claimed that he had no income, but he was developing businesses and income was imminent. In his affidavit dated January 9, 2012, Brent made the following statements:

11(O). Finally, I admit I am still in arrears of child support, as substantial business payments I have been expecting for months have not yet transpired. It is my hope there will be a significant change in the situation in the coming month, but I cannot be assured. In any event, I am advised by my solicitor that the failure to pay a monetary amount cannot be the subject matter of a contempt motion.

(b) Brent was driving a Lexus motor vehicle and in 2011 a Bentley motor vehicle;

(c) On May 24, 2012, Brent signed a promissory note as the director of 1605798 Ontario Inc. promising to pay Ginette Grandmont the sum of $138,000 plus interest of 5% per annum over the next three years. Brent paid $38,000 to the Family Responsibility Office and $30,000 to three separate credit cards;

(d) On May 24, 2012, Brent paid the sum of $38,000 from a Bank of Montréal account 3219 1002-135 in the name of 1605798 Ontario Inc. as outstanding child support and requested that his passport and driver’s license be reinstated;

(e) From June 1 to September 3, 2012, Brent paid $13,160 for his fiancée’s apartment in Vancouver while he lived in Ottawa; and,

(f) In early August, 2012, Brent exchanged emails with Premier Funding USA and Clearview Leasing making inquiries about his interest in acquiring a 2012 Bentley Continental GT motor vehicle for $179,500. At that time, Brent was in arrears of child support.

18When the parties settled the matter in August 2012, Lanita was aware that in the period of November 2010 to August 2011, Brent received over $100,000 in commissions. At the settlement conference in August 2012, Brent disclosed that he had obtained a position with OES as of July 30, 2012 as vice president of business development with an annual income of $82,000.

19Based on that disclosure, Lanita agreed that Brent would pay child support for the two children based on his income of $82,000. Based on that agreement, the Court set the amount of monthly child support for two children based on the income of $82,000 at $1184 per month.

20Lanita was employed earning $95,000 and both children were residing in Ottawa with Lanita but moving to Regina, Saskatchewan for work.

Circumstances After the Divorce Order

21Following the divorce order, Lanita moved to Regina and moved back to Ottawa in May 2013. She is employed with an annual income of $95,000.

22Brent worked for the OES for four weeks but stopped when he had not been paid a salary and did not receive the signing bonus. He says he realized that the owner of the company was not in the position to pay him. Consequently, Brent went back to developing the automotive fuel saver for gasoline and diesel motors for Maxa.

23Brent decided to pursue the development of Maxa on a full-time basis. He travelled to the Ukraine starting on January 4, 2013 to investigate the opportunities for low-cost manufacturing of his product in the Ukraine. However, Brent’s efforts were unsuccessful.

24On March 28, 2013, Brent married his wife, Olena in the Ukraine who had her own company which produced and sold energy bracelets in the Ukraine.

25While in the Ukraine, Brent became ill and was diagnosed with a ventral hernia and was operated on May 7, 2013. He was discharged on May 22, 2013. After being discharged, Brent’s health situation worsened and he was diagnosed with deep vein thrombosis which required medication. He was advised to reduce his activities for an 8 to 10 week period. In June 2013, he was also diagnosed with gallstones and a bacterial infection. Brent admits that in the summer of 2013, he assisted his wife in her business selling energy bracelets. He also resumed work with Maxa.

26By August 2013, Brent returned to Canada to see his children. He stayed for approximately one month and returned back to the Ukraine in September 2013.

27In December 2013, Brent returned to Canada and was hoping to return to the Ukraine in January 2014. Brent could not return to the Ukraine because of the political situation.

28On March 27, 2014, Brent was diagnosed with atrial fibrillation, water on his lungs and congestive heart failure. He was treated with the medication as well as monitoring his heart and blood pressure. Brent stated that he also was diagnosed with sleep apnea, had persistent problems with arrhythmia and by the fall of 2014, he was waiting for an appointment with the heart Institute arrhythmia specialist.

29During this time, Brent focused on Maxa. One of his customers, KLT Innovations LLC, placed a large order. Brent tried to sell Maxa to KLT but that transaction fell through in late November/early December 2014.

30Throughout 2015, Brent stated that he had various health conditions relating to his heart that affected his ability to breathe, to stand, to do groceries and to walk without difficulty. By letter dated March 18, 2015, Dr. Mankal, a family doctor in Ottawa provided correspondence indicating that Brent had been under his care since 2007 and specifically stated:

He suffered a deep vein thrombosis in his left leg complicated by pneumonia. He has also developed atrial fibrillation, congestive heart failure and severe sleep apnea which has greatly affected his function and quality of life. A nuclear cardiac test showed that Mr. Luckman has an ejection fraction of 30%. Normal heart function is over 60%. Mr. Luckman has undergone a failed attempt at cardioversion in an effort to improve his heart function. He must take several medications which impair his ability to function normally including blood thinners and beta blocker. He has not been able to work or exercise as a result. These medications are known to cause fatigue, poor concentration and can effect higher cognitive functions. He is currently seeing multiple specialists to aid in his medical conditions. Due to his present condition, additional stress such as court proceedings should be avoided for a period of 90 days. He will complete further cardiac test and meet with his cardiologist during that period to assess medications and review new treatment options.

31In a follow-up letter dated March 31, 2015, Dr. Mankal, stated:

Mr. Luckman suffers from atrial fibrillation and congestive heart failure. These have been stabilized by medication and he is under the care of a cardiologist. Although he should avoid stressful situations such as court proceedings and business dealings, there is no reason to avoid driving or interaction with his children at this time. His medications do not affect his ability to supervise children and he does not pose a risk to them.

32In April 2015, Brent became aware that there was a procedure that was being performed by Dr. Narayan, in California that was not available in Canada that could assist Brent. Brent forwarded his medical information to this doctor who was prepared to perform the procedure at his office in the Stanford, California. By letter dated May 13, 2015 and June 16, 2015, Dr. Narayan stated that Brent needed to be excused from work duties, court hearings or strenuous physical activities as part of the recovery process and the procedure.

33On June 8, 2015, the doctor performed the procedure on Brent and on June 20, 2015, Brent returned to Ottawa. By July 2015, he was able to walk without having to stop or fight to breathe. For the rest of 2015, Brent was recovering from his health related issues. By November 2015, the doctor confirmed that the procedure was a success.

34In February 2016, Brent travelled to California to have a meeting with Dr. Narayan. At that time, he was hospitalized for five days a result of having severe abdominal cramps and vomiting. During his hospital stay, Brent had his stomach pumped numerous times and underwent a series of tests and x-rays. The doctors diagnosed that he had an abdominal adhesion or kink in his intestines related to accidentally ingesting glass in 1993. The doctors are reluctant to operate as further abdominal surgery may lead to more abdominal adhesions. Brent was released with recommendation to eat a low to medium residue diet to avoid future blockages in his intestines.

35By March 2016, Brent was off beta-blockers and his breath was back but he had to go back on beta blockers in May 2016. Over the course of the summer, Brent monitored his blood pressure. In September 2016, he went to the emergency department. His heart rate was 227/145. He was discharged after and went to see Dr. Mankal.

36By letter dated October 6, 2016, Dr. Mankal indicated:

“his medical history is positive for atrial fibrillation for which he was treated surgically in June 2015…….. He no longer takes any medication for this problem. Mr. Luckman is being treated for hypertension with Cozaar 25 MG daily…… He’s also being treated for obstructive sleep apnea with cpap therapy. He takes no other medication and is not dealing with any other active issues at this time.

Brent’s income

37According to Brent’s income tax returns, has earned the following income:

(a) 2011-$16,219;

(b) 2012-$12,600;

(c) 2013-one dollar;

(d) 2014-taxes not filed but a letter dated October 7, 2014 from Art Bowles confirms that Brent was gainfully employed full-time with Maxa and has received dividend payments of approximately $6500/month for part of the year and that Maxa had gross sales of $134,163.00 in 2014;.

(e) 2015-$27,866 less expenses through 2449984 Ontario Inc., a company he co-founded with Mark Green; and

(f) in 2016, Brent indicates that he received $24,000 in commissions as president of Totem Liquors Inc. for sales in July, August and September 2016.

Child Support

The Legislative Framework and Jurisprudence

38Section 17(1)(a) of the Divorce Act, 1985, c. 3 (2nd Supp.) provides that a court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively a support order or any provision thereof on application by either or both former spouses.

39Section 17(4) provides that before the court makes a variation order in respect of a child support order, the court shall satisfy itself that the change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

40Section 17(4.1) provides that before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

41The term “material change” is a change such that if known at the time, would likely have resulted in a different term in the order. The change must not have been known at the relevant time and the burden is on the moving party to prove on a balance of probabilities that the change relied upon meets this definition. (Willick v Willick, 1994, S.C.J. No 94 SCC).

42Before the court can embark upon an inquiry, the moving party must meet the threshold under section 17 (Willick, supra).

43The change must not be temporary but must have a degree of continuity (Marinangeli v Marinangeli and O.J. No. 2819. ONCA).

44Once the threshold of section 17 has been met and the court finds that there has been a material change in circumstance, the court is to determine what variation is applicable in light of the change in circumstances (P. v S., 2011 SCC 64, 2011 S.C.J. No. 64 SCC).

45Section 19 of the Federal Child Support Guidelines, S.O.R./97-175, as am. [“Guidelines”] states as follows:

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

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

46There is a three-part test for determining whether income should be imputed on the basis of intentional under-employment or unemployment as follows:

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

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

3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances? (Drygala v. Pauli (2002), 61 O.R. (3d) 771 (C.A.))

47The following factors are to be considered:

(a) A spouse is intentionally under-employed if he or she chooses to earn less than he or she is capable of earning having regard to all of the circumstances (Drygala, at para. 28);

(b) There is no requirement that the under-employment or unemployment be undertaken in bad faith or with the intention of avoiding support payments (Drygala, at paras. 29-36);

(c) The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed (Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28);

(d) There is a duty on the spouse to “actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children” (Thompson v. Thompson, 2014 ONSC 5500, at para. 99);

(e) A spouse’s capacity to earn income can be influenced by his or her age, education, health, work history, and the availability of work that is within the scope of his or her capabilities (Marquez v. Zaipola, 2013 BCCA 433, 344 B.C.A.C. 133, at para. 37);

(f) Once intentional underemployment is established, the onus shifts to how one of the exceptions of reasonableness (Jackson v. Mayerle, 2016 ONSC 72);

(g) Where the spouse is intentionally and unreasonably under-employed or unemployed, the court has a large range of discretion to impute as income an amount founded on a rational basis (D.D. v. H.D., 2015 ONCA 409, 335 O.A.C. 376); and

(h) The main factors a court should consider are the age, education, skills, and health of the spouse, along with the number of hours that can be worked in light of competing obligations and the hourly rate the spouse could reasonably obtain (Drygala, supra).

Has there been a material change in circumstances?

48Brent argues that he suffered a material change in circumstances in the fall 2012 and that he has not been able to earn the $82,000 that was the basis of the Divorce Order, that his arrears of support should be rescinded to equate to his actual income earned in those years.

49Brent admitted that the company that he had DDCI, a US-based company, was closed to avoid the court imputing an income to him. Brent produced a letter dated September 11, 2011 that indicates Brent and DDCI received commission income from CentricsIT and that Lanita calculates generated income of approximately $104,662.20 in 2011.

50On July 9, 2012, Brent sent an email to his lawyer in Chicago, Illinois to close down his Delaware company where he stated as follows:

Hi Michael,

Yes I need to close a company that it is causing me grief in my divorce settlement as opposing counsel in Canada always makes it appear like I have a huge income in their attempt to have the judge impute one whereby I have ridiculous support payments. So it appears best to close the issue and shut it down.

Brent

51In email exchanges between Brent and his then Ontario counsel, Brent stated on June 24, 2012 by email at 4:59 p.m. the following:

Hi Jeremy,

I hope you are enjoying your vacation.

One of the issues that was raised by my ex and counsel was this section 7 daycare costs. This was the first I had ever heard of it on Thursday.

I need to take this into account going forward. I now know it is tax-deductible however child support is not.

I wish someone in 4 years could have explained everything to me from the outset as it makes it all more palatable.

It looks like I am going to take the consulting gig for a year. It has some extensive travel however they will cover all costs including flying my home to see my kids if it is in the US or Europe. There may be an upside if I can raise them funding or find a strategic partner to acquire them.

They will provide an offer within 2 weeks. Let’s see.

52On June 27, 2012, then counsel for Brent responded as follows:

If you could confirm that it would be awesome. I am hoping the salary will be more than $50 K or it might raise some suspicion. Keep in mind that if we don’t settle it is extremely unlikely that I can lower child support prior to the trial in about a year……

They did end up signing the custody and access agreement. That’s good.

53As the settlement conference was approaching, on August 2, 2012, at 9:18 p.m., Brent emailed Mark Green, a friend and business associate in the past, and stated as follows:

Hi Mark,

Can you make any comments to the pseudo-job I am taking at least for two months in order to get out of my existing imputed support order by the court to my ex which is over 2.5 years old and is totally un-supported.

Thanks

Brent

54That same day, at 11 p.m., Mr. J-F Soulard, CFO of OES emailed Brent and stated:

I suggest we make your compensation bi-monthly, a common practice. Ask Mark if 6 weeks is too much. Tell me what date you want this offer signed not (sic) make it look like you just got it before your court date but after your probation is over!

Change what you need and send it back to me.

J-F

55On August 2, 2012, Brent replied by email to Mr. J-F Soulard and said:

Okay change to bi-monthly, 4 weeks, offer dated July 30 2012 and start date leave as is. Make the changes from your end.

56On August 3, 2012, Mr. J-F Soulard replied by email:

Changes are made. The company is registered: 1531415 Ontario Inc., should I state that in the letter?

57Brent produced a two-page employment contract between OES and himself. The agreement was signed by OES by Mr. Soulard on July 30, 2012 and by Brent on August 3, 2012. The agreement confirmed that Brent had been hired as Vice President of business development and that he would be paid a signing bonus of $10,000, a car allowance of $500 per month and biweekly payments of base salary of $66,000 for a total income of $82,000. Brent’s evidence is that within a month he had not been paid, had not received a bonus and there was no possibility that he would be paid. He consequently stopped working for the company. He was never paid any salary or bonus.

58As a result of that letter from OES, the parties settled child support reducing the amount from $2200 per month to $1184 per month. Both Lanita and the court relied upon that evidence to determine the proper amount of table child support.

59Once Brent started to work for OES, when he indicated he was not being paid a bonus or a salary, on September 7, 2012, Brent signed a letter as president of Maxa confirming the Jean Francois Soulard was part owner of 1605798 Ontario Inc. following an investment made of $138,000 on May 24, 2012. In his testimony, Brent indicated that the letter was signed but the transfer was never effected. Brent’s testimony is that the funds were dispensed to other parties but that $68,000 was used to pay personal expenses.

60Despite alleging that he had no income from OES, on September 13, 2012, Brent sought information about the cost of cosmetic surgery fee regarding liposuction of his flanks with an estimated cost of $4633 and a second procedure of Upper Blepharoplasty with an estimated cost of $2768.50.

61Again, while alleging he had no income, on October 15, 2012, Brent sent a letter of instructions for redemption to the HSHC Bank, directing that upon maturity, to deposit the nonredeemable GIC in the amount of €1 million to the account of Michael Gold Hill/Gold Hill Associates.

62Brent stated that he was able to survive based on a series of loan including loans from three individuals totalling approximately $120,000 being Mr. Green, his sister Tanis Luckman and a friend Ms. Mott. Brent further testified that his sister, Ms. Mott and his wife Olena have all paid for rental cars since returning to Ottawa in 2014 and that he also has an $800 month allowance towards his vehicle from Totem Liquors. Finally he indicates that his wife is working and earned $37,000 net since January 2015.

Brent’s Lifestyle

63Brent admitted in cross-examination that over the last eight or nine years he is spent over $150,000 in legal fees for civil, family and criminal proceedings.

64In 2011, Brent was paying $2,582 per month for lease payments for a motor vehicle.

65From January to April 2014, Maxa paid the rent of a condo that Brent lived in with a monthly cost of $1,260 per month. In May 2014 until May 2015, Brent rented a two storey, four bedroom, single-family home across from a golf course in the Stonebridge area of Ottawa with a monthly rent of $2195 per month.

66Brent’s purchased $6,000 in household goods between his financial statement sworn on November 3, 2014 and his most recent financial statement sworn October 27, 2016 without explanation.

67When Brent came to Ottawa in August 2013 to have summer access with his children, he spent $29,313.10 in a 10 day period according to his Toronto Dominion Bank statements for account number 646-7646.

68In 2014, Brent was not working but he paid rent of $26,340 a year and $12,550 towards child support. In the months of June and July of 2014, Brent spent $39,950.60 from two accounts with the Toronto Dominion Bank in the name of Maxa and he transferred a further sum of $37,154.68 to another unknown bank account. Brent testified that it was not all his own expenses but provided insufficient evidence to support that contention.

69Since July 2015, Brent is residing in a residence in Gatineau, Québec owned by a friend where he does not pay a monthly rent but is responsible for Hydro and the snow removal cost of $600 per year. He anticipates living in the property until the spring 2017.

Analysis

70I find that Brent has embarked upon a course of conduct to convince the court that he has little or no income. I find that Brent has consistently signed agreements and breached the agreements at a later date as follows:

(a) failed to pay the child support order of $2000 per month as ordered by Justice Kealey on April 9, 2010 (Brent did not appeal this decision);

(b) failed to pay table child support of $16,000 representing the child support from April 2010 to November 2010 and failed to pay the ongoing child support of $2000 per month as of June 1, 2011 as ordered by Justice Robertson on March 25, 2011;

(c) failed to pay the table child support of $1184 commencing August 1, 2012 as ordered by Justice Kershman on August 23, 2012, which was based on minutes of settlement signed by the parties;

(d) failed to pay the sum of $22,000 on or before March 27, 2013 representing his share of section 7 expenses as ordered by Justice Kershman on August 23, 2012 which was based on minutes of settlement signed by the parties;

(e) failed to pay $4250 per month negotiated with the family responsibility office towards his child support arrears, ongoing child support and interest other than three payments in May, June and July 2014;

(f) defaulted on his credit payments in his consumer proposal in November and December 2012 and January 2013;

(g) failed to provide proof of the life insurance to secure child support as ordered by Justice Kershman on August 23, 2012 which was based on minutes of settlement signed by the parties; and

(h) failed to provide proof that he added the children to any benefit plan as ordered by Justice Kershman on August 23, 2012, which was based on minutes of settlement signed by the parties.

71On February 17, 2012, the Honourable Justice Kershman found that Brent was in contempt of court in finding that Brent had deliberately and wilfully misled both Lanita and Justice Robertson on March 25, 2011 that he owned a property that he agreed to pledge as security for the payment of support when he, in fact, did not own the property. On March 25, 2011 Brent’s signed minutes of settlement that formed the basis of a temporary order of Justice Robertson, that included, that he make two payments of $8000, with the first due on April 15, 2011 and the second on May 12, 2011 representing arrears of child support from April through November 2010; he agreed to pay $2000 per month as of June 1, 2011 as ongoing child support and agreed to secure his child support payments against land owned in Pontiac, Québec which would become enforceable if the payments were not made by June 1, 2011. The payments were not made. Lanita could not move against the land because it came to light that Brent had sold the property in December 26, 2009, 16 months before the consent order of Justice Robertson.

72On April 18, 2012, Justice Kershman ordered that Brent pay costs of $7500 by May 18, 2012 or his pleadings would be struck, ordered Brent to provide the balance of the outstanding disclosure within the next 50 days, failing which, a motion could be brought to strike his pleadings and ordered that Brent deposit his Canadian passport and permanent resident card with the court. Further, Justice Kershman imprisoned Brent for contempt of court from April 18, 2012 until April 23, 2012 and that he pay the costs of the contempt motion fixed at $5500 inclusive of disbursements and HST within 30 days of the order.

73Regarding the OES employment contract, I find that the agreement was a fiction to create a paper trail to allow Brent to reduce his monthly child support from $2200 per month to $1184 per month based on an income of $82,000. I note that in the contract that was signed by Mr. Soulard on July 30, 2012 but the email evidence indicates that on August 2 and 3, 2012, Brent and Mr. Soulard exchanged emails determining the specific terms of the agreement and agreed that the offer date of the contract would be July 30, 2012.

74Further, upon a review of the emails exchanged between Brent and his legal counsel in Canada and United States, he was very well aware that the issue of imputation of income needed to be addressed. I find that Brent enlisted the assistance of business associates to create the offer dated July 30, 2012 to provide Brent with proof of an income to allow him to reduce the monthly amount of table child support.

75I find that Brent is not a credible witness. For example:

(a) Brent testified that when he made a proposal in bankruptcy in May 2012, the proposal was rejected by his creditors. However, the proposal failed because Brent failed to make the required payments;

(b) As part of the bankruptcy proceedings, Brent signed an affidavit dated May 4, 2012 where he confirmed that he had no credit or debit cards. However, on May 3, 2012 Brent opened an account with the Bank of Montréal account number 8994-704 and account number 3995-409 which provided him with the debit card;

(c) Brent testified that he did not know the CEO of OES, was Mr. Boyd. However in his affidavit dated October 14, 2016, at paragraph 29, Brent stated that he met with the CEO. When confronted with this inconsistency, Brent stated that he remembered that he actually spoke to the CEO on the phone;

(d) In the years 2011, 2012, 2013 and 2014, Brent stated that his total income earned was $28,820 because he says tax losses were offset against income to reduce his income to that amount. Brent did not provide any corroborating evidence to support such a contention;

(e) Brent’s evidence was that he paid his expenses based on loans from business partners, family and friends. Brent’s produced a schedule of promissory notes indicating that he, Maxa and 2449984 Ontario borrowed approximately $241,000 from friends and family and then since July 2015, he has borrowed an additional approximately $120,000 from his sister, Mr. Greene and Ms. Mott. All the documentation relied on by Brent have been prepared by Brent. The promissory Notes are signed by Brent. There is no witness and there is no corroborative evidence from his sister and Ms. Mott confirming said loans. Mr. Green has passed away and consequently, he cannot provide corroboration. However, Ms. Mott signed a letter dated October 11, 2016 that was relied upon by Brent concerning her dealings with JF Soulard. Despite Lanita questioning the veracity of the loans, neither Ms. Mott nor Ms. Luckman, Brent’s sister, filed an affidavit corroborating their financial efforts to assist Brent. Considering my finding that Brent is not a credible witness, I reject Brent’s evidence that he is been subsisting on loans from family and friends. His evidence is simply not credible;

(f) Brent disclosed four different sources of income in 2014. Firstly, the letter from Art Bowles indicates he received dividends totalling $32,000. Then, his financial statement dated November 3, 2014 discloses an annual income of $52,000. Thirdly, Brent was paid a salary from Maxa that do not appear on the financial statements of Maxa and fourthly, in his affidavit dated October 14, 2016, he states that he had no income.

76The jurisprudence directs the court that in determining an imputed income, the court is to use a rational basis based on the evidence presented to the court. In these circumstances, it is very difficult to determine Brent’s actual income. However, Brent was prepared to hold out to the court that he was able to earn $82,000 as income when he settled the matter in 2012.

77I find that Brent has been able to maintain a very comfortable lifestyle without an apparent commensurate income, that he has lied to the court in the past, has been found in contempt of court for such lies and that he continues to do so in this proceeding.

78Lanita and Justice Kershman relied on that information to base the calculation of table child support. I find that I cannot rely on his information regarding his income. In the circumstances, I find it is fair, reasonable and rational to impute the income selected by Brent to determine his child support in 2012 being the sum of $82,000 per year.

79Having done so, I also find that there has been no material change in circumstances of Brent’s financial situation except in the year 2015 which I will canvass later in this decision.

Year 2012

80Brent submits that his income in 2012 was $46,000 despite his income tax return indicating at line 150 an annual income of $12,600. I reject such submission and will impute an income of $82,000 to Brent for the reasons set out herein.

81Brent further submits that in the Divorce Order of Justice Kershman, there were two penalty clauses whereby if Brent did not pay $10,000 of section 7 expenses by September 27, 2012 the amount was increased to $20,000. In addition, if Brent did not pay a further sum of $12,000 on account of section 7 expenses by March 27, 2013 the amount was increased to $24,000. Brent has submitted that the penalty provisions should be eliminated because the children will not suffer any prejudice because those were not actually additional section 7 expenses but were penalties in the event of noncompliance. I disagree. The order was made with Brent’s consent based on his past history of not abiding by court orders. Brent has not provided any evidence that he did not consent. Despite agreeing to these clauses and not paying them, Brent now seeks to avoid the payments. In the circumstances, I reject that request.

Year 2013

82Brent submits that in 2013 he had no income. Upon a review of the evidence, Brent went to the Ukraine in January 4, 2013. He married his wife Olena on March 28, 2013. He indicates he became ill and that he was operated on May 7, 2013 after being diagnosed with a ventral hernia. He was discharged from the hospital May 22, 2013. Brent indicates that his situation worsened and he was advised to reduce his activities for an 8 to 10 week period.

83Lanita submits that Brent actually went to the Ukraine as a “medical tourist “to have performed the medical procedures that he inquired about in September 2012 at a much reduced cost in the Ukraine. While I have concerns, the evidence does not convince me on a balance of probabilities that Brent had cosmetic surgery done in the Ukraine.

84Brent returned to Canada in August 2013 because his visa expired, to explore business opportunities, to see his children, to see friends and family and to take care of tax issues. He stayed for a month and returned to the Ukraine in September 2013. He returned to Canada in December 2013.

85Having found that Brent is not credible, I do not believe Brent’s evidence that he could not work for 8 to a 10 week period after his hernia surgery. Consequently, for the year 2013, I do not accept that the hernia surgery and assorted medical difficulties were a material change in circumstance sufficient in nature as to permit a variation of his imputed annual income of $82,000.

86As of January 2013, the table amount of child support for two children based on an income of $82,000 from $1,184 per month to $1,198 per month based on changes to the Federal Child Support Guidelines, S.O.R./97-175, as amended.

Year 2014

87Brent testified that he was employed full-time with Maxa receiving a dividend of $6500 per month which was confirmed by a letter for Mr. Art Bowles. Brent testified that he received $32,500 for the period of May through October 2014. However, Brent submitted that in 2014 his income should be determined to be $52,000 based on the dividends he received from Maxa even though his tax return indicated no income because apparently his income was offset by shareholder loans. There was no evidence, other than from Brent, corroborating this statement concerning the shareholder loans. Despite Brent’s statement, he asks the court to impute an income of $52,000.

88In 2014, Brent testified that he was ill in January, February and March and on March 27, 2014 was diagnosed with atrial fibrillation, water in his lungs and congestive heart failure. He was treated with medication as well as monitoring his heart and blood pressure. He was not hospitalized and produced no evidence to indicate that he was unable to work.

89During this period of time he indicated that one of his customers placed a large order and that he tried to sell his company to this customer without success.

90I reject this submission that Brent’s income in 2014 should be set at $52,000 because I do not believe Brent’s evidence regarding his income. I also do not find that the medical evidence supports a finding that Brent’s medical issues prevented him from being employed and earning income and I impute an annual income to him of $82,000.

Year 2015

91Brent submits that in 2015, his income should be based on $27,866 which is the income that he earned from 244-9984 Ontario.

92In the year 2015, Brent suffered from deep vein thrombosis complicated by pneumonia; atrial fibrillation; congestive heart failure and severe sleep apnea which according to Dr. Mankal, deeply affected his function and quality of life. Further, the doctor stated in his report dated March 18, 2015 that he was not able to work and that he should avoid additional stress such as court proceedings for a 90 day period.

93By letter dated March 31, 2015, Dr. Mankal confirmed that Brent suffered from atrial fibrillation and congestive heart failure but that it had been stabilized by medication and he was under the care of a cardiologist. Further, he opined that Brent should avoid court proceedings or business dealings but there was no reason, according to the doctor, to avoid driving or interacting with his children.

94Brent went to California for a procedure to deal with his medical issues. The attending physician, Dr. Narayan, in his reports dated May 13 and June 16, 2015 indicated the Brent needed to be excused from work, court or strenuous physical activities as a result of the procedure as part of his recovery process. The procedure occurred on June 8, 2015. By November 2015, the doctor confirmed the procedure was a success.

95Based on the medical evidence, I find that Brent was not able to work in 2015 for part of the year. However, Brent should have been able to work at the beginning and at the end of the year. In the circumstances, I will impute an income to Brent of one third of $82,000 being $27,000 which is consistent with Brent’s submission that he earned $27,000 in 2015. The table amount of child support for two children is $397 per month.

Year 2016 going forward

96In 2016, Brent was hospitalized for five days a result of having severe abdominal cramps and vomiting while in California to see Dr. Narayan, as a follow-up to his procedure. There were no further medical interventions in 2016 and in the letter from Dr. Mankal dated October 6, 2016 confirms that he is no longer taking medication for his atrial fibrillation but takes medication for hypertension.

97I do not find that there was any medical reason why Brent could not work full time. Brent now submits that he earned $45,000 in 2015 based on commissions from Totem Liquors. However, for the reasons given though out this proceeding, I do not find that Brent is credible and will impute an income to him of $82,000.

Child support payments made

98Brent has made the following payments of child support:

(a) $38,000 in May 2012 (at the same time he paid $30,000 on three credit cards to reduce the balance);

(b) $12,300 in 2013;

(c) $12,300 in 2014;

(d) no child support payments in 2015; and

(e) no child support payments in 2016.

99I find that there has not been a material change in Brent’s financial circumstances as of August 2012 save and except the year 2015 where I fixed his income at $27,000.

100Lanita requests that the arrears of child support be payable in two instalments. I have considered Brent’s ongoing obligation to pay $1198 per month, his imputed income of $82,000 per year and find that Brent should pay back the arrears, once calculated, at $1000 per month commencing July 1, 2017 until paid in full.

Life Insurance

101Brent never complied with the Divorce Order of Justice Kershman dated August 23, 2012 to have life insurance in place to secure his child support obligation. Brent admitted in cross-examination that he was obligated to give Lanita confirmation that the life insurance was in place within one week but it was never done. He indicated he did not know why it was not provided.

102Despite being in breach of the terms of the Divorce Order, Brent seeks relief from the court to vary the order to remove his obligation to have life insurance.

103Based on Brent’s medical history, I do not have evidence that Brent has the ability to currently obtain life insurance. In the circumstances, I will not order Brent to obtain life insurance that he cannot qualify for.

104However, I have jurisdiction to order that Brent’s child support obligation form the first charge on his estate. In the circumstances, I exercise my jurisdiction and make my order accordingly.

105Further, Lanita has bought a life insurance policy in 2012 on Brent’s life and has been paying the premiums. She seeks an order to have the monthly premiums included in the child support. I reject this request as I find that Brent does not have the ability to obtain his own insurance policy. If Lanita wishes to have the insurance, it will be paid from the table child support.

Access and Other Parenting Issues

Position of the parties

106Brent seeks the following:

(a) an order that Brent be permitted to travel with the children, including international travel, on the provision of a written itinerary including flight details (carrier and flight number) and accommodation location to Lanita within 10 days prior to two departure;

(b) an order that Lanita shall provide to Brent with the children’s passports and shall sign a travel consent letter to facilitate Brent’s travel with the children;

(c) an order that Brent have access to the children as follows:

(i) every second Friday from 4 p.m. to Sunday at 7:30 p.m. except that access to commence on Friday at 10 a.m. where the Friday that Brent would exercise access is either a statutory holiday or a professional development day for the children;

(ii) every Wednesday evening from 4 p.m. to 7:30 p.m. except during Lanita’s summer vacation or Christmas break vacation with the children;

(iii) from December 26 at 7:30 p.m. to the children’s return to school following the end of their Christmas break;

(iv) access from Saturday to Saturday during the children’s Spring Break in odd numbered years;

(v) three weeks, no more than two of the week’s consecutively, in each of July and August; and

(vi) if Lanita adjusts Brent’s weekend access with the children, that Brent be provided with an alternate weekend for access with the children to occur within 90 days of the adjusted weekend.

107Lanita seeks the following:

(a) that the order of The Honourable Justice Kershman dated September 10, 2012 be varied as follows:

(i) Brent’s Friday pick-up be changed to 4 p.m. and the Sunday (or Monday on long weekends) drop off time be changed to 7 p.m.;

(ii) That all of Brent’s access with the children be confined to the National Capital region and that Brent not be permitted to travel with the children; and

(iii) Brent shall surrender his Canadian passport, his American green card and any other travel documents he has during his access time with the children.

108Despite Brent agreeing to having access to his children every second weekend, summer holidays and the like after August 2012, he was not involved in the children’s life until the summer of 2013.

109Further, when he was away for this period of time, Brent refused to disclose his location to Lanita. Brent currently has access every second weekend from Friday at 4 p.m. to Sunday at 7:30 p.m. and every Wednesday from 4 p.m. to 7 p.m.

110Brent submits that as a result of the passage of time, the children are older and should have more time with him and relies on the maximum contact principle set out in the Divorce Act regarding access by parents. Lanita submits that the children would not be properly cared for in Brent’s care and that he may disappear with the children.

Legislative framework

111Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interest of the child as determined by reference to that change (Section 17(5) Divorce Act).

112in making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact each former spouse as is consistent with the best interest of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact (Section 17(10) Divorce Act).

Analysis

113In 2012, at the time of the divorce order, the children were 6 and 8 years of age. Today the children are 11 and 13 years of age. It has been almost 5 years since the custody order.

114The father resides in Gatineau, Québec while the mother resides in Orleans, Ontario.

115With respect to the regular access, I find that it is in the best interest of the children to spend more time with their father because they are older and he has exercised access on a consistent basis since 2014. I have also considered the principles in the Divorce Act and I do not accept that the children are not properly cared for while they are in Brent’s care.

116Further based on Lanita’s consent and in keeping with the best interests of the children, I order that Brent shall have access to the children every second Friday from 4 p.m. until Sunday at 7:30 p.m. with such access to start on Friday at 10 a.m. on the Fridays that the children have a statutory holiday or a professional development day.

117Further, I order that Brent shall have access every Wednesday evening from 4 p.m. to 7:30 p.m. except during the summer vacation or Christmas break vacation at which time such access will be suspended.

118With respect to summer holidays, I find that it is in the children’s best interests to have more summer time with Brent. I reject his request that he have 6 weeks of summer vacation because Lanita works fulltime and having found that Brent has the ability to work full time, I order that Brent have access to the children for three non-consecutive weeks during the children’s summer school holiday.

119Regarding the Christmas break, the father wants 10 days while the mother seeks to split the Christmas holidays. The children have a two week Christmas school break every year. I find it is in the children’s best interest that this Christmas school break should be shared equally by the parents. I order that both parents shall be entitled to one week each of the children’s Christmas school break. Brent shall have the children for the first half of the Christmas school break and Lanita the second half of the school break in odd numbered years and said schedule to alternate in even numbered years.

120Lanita’s concern that Brent is a flight risk and relies on information obtained about Brent by a private investigator that was retained to repossess a Lexus motor vehicle leased by Brent. I find that Brent has used multiple date of births being April 25, 1958, April 26, 1958 and April 15, 1958 associated with his name. He also has an American social insurance number and several alias in the United States.

121With respect to Brent’s request to travel internationally with the children, I find that there is a risk that Brent may leave the jurisdiction with the children. I base my findings on the following factors:

(a) in the past Brent has left Canada and did not advise Lanita as to his location;

(b) Brent’s wife is Ukrainian national and has business interests in the Ukraine;

(c) Brent has no assets in Canada;

(d) Brent has significant arrears of child support;

(e) Brent has an obligation to continue to pay child support;

(f) Brent has been abusive to Lanita in the past resulting in his criminal conviction of assault;

(g) Brent is not a credible witness, and

(h) Brent has a record of 12 possible aliases.

122Based on my findings of fact, I find there is a risk that Brent may remove the children outside of the jurisdiction if he is granted permission to travel outside of Canada. I have considered Lanita’s request that all of Brent’s access be in the National capital region, that Brent not be permitted to travel with the children and that Brent surrender his Canadian passport, American green card and other travel documents.

123Having found that there is a risk that Brent may remove the children outside of the jurisdiction, I find that it is the best interests of the children that Brent’s access to the children be confined to Canada.

124I find that the restriction of allowing Brent to have access to his children for vacation the National Capital Region to be restrictive. However, Brent shall provide Lanita with a detailed itinerary, 30 days before leaving on vacation including the location of the vacation, the address and the telephone number where the children can be reached.

Miscellaneous

125Lanita seeks an order that Brent is prevented from bringing any further motions. Brent opposes such an order. As the issue of child support and access is always variation subject to a material change in circumstances, I will not order that Brent is prohibited from bringing a motion in variation.

126Brent seeks an order that he not be required to obtain medical/dental benefits. I find that at this time there is no evidence that Brent has or can qualify for such benefits and consequently this relief is granted.

Disposition

127I order as follows:

(a) Commencing August 1, 2012, Brent shall pay to Lanita table child support of $1,184 per month based on an income of $82,000;

(b) Commencing January 1, 2013, Brent shall pay to Lanita table child of $1,198 per month based on an income of $82,000;

(c) Commencing January 1, 2015 up to an including December 2015, Brent shall pay table child support of $327 per month based on an annual income of $27,000;

(d) Commencing January 1, 2016, Brent shall pay to Lanita table child support of $1,198 per month based on an annual income of $82,000;

(e) Brent shall pay the monthly amount of $1,000 per month commencing July 1, 2017 until the arrears of child support are paid in full;

(f) Paragraph four, six and seven of the order of Justice Kershman dated June 21, 2012 are deleted and replaced with the following:

4. Brent shall have access to the children on alternate weekends from Friday at 10 a.m. on Fridays if the Friday access is a statutory holiday or professional development day, failing which access will start at Friday at 5:30 p.m. to Sunday at 7:30 p.m. which shall be extended to Monday at 7:30 p.m. should access fall on a statutory long weekend;

5. Brent shall of access for the first week of the children’s Christmas school vacation and Lanita shall have the children in the second week of the children school vacation in odd numbered years with said schedule to alternate in subsequent years;

6. Brent shall have access to the children for three non-consecutive weeks during the children’s summer school holidays in each year;

(g) Brent shall be entitled to travel with the children for vacation or access purposes in Canada only and Brent shall provide Lanita with a detailed itinerary, 30 days before leaving on vacation including the location of the vacation, the address and the telephone number where the children can be reached.

(h) Paragraph 4 of the order of Justice Kershman dated August 23, 2012 is deleted and replaced with the following:

4. Brent’s child support obligation shall form the first charge on his estate.

(i) Paragraph 12 of the order of Justice Kershman dated August 23, 2012 is deleted; and,

(j) All other claims are dismissed.

128Regarding the arrears, as of December 31, 2016, the arrears of child support were $80,785.79. However, the table of child support changed as of January 1, 2013 and based on my determination that the table child support in 2015 should be $327 per month, the amount of child support arrears must be recalculated. I direct counsel the calculate the amount of child support due and payable by Brent as of August 2012 to the date of this judgment and to calculate the credits of any payments made or monies received by the Family Responsibility Office on account of child support. In the event the parties are unable to agree, they may contact the trial coordinator to schedule a date before me.

Costs

129In the event the parties are unable to agree on the issue of costs, both parties shall provide me with their cost submissions not to exceed three pages by June 9, 2017. Said cost submissions school here shall include any offers to settle and Bill of costs.

Shelston J.