COURT FILE NO.: 05-FL-3478

DATE: 20180605

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LESLEY SKALJAC

Applicant

– and –

MIKE SKALJAC

Respondent

Zane R. Handysides, for the Applicant

Mike Skaljac, acting in person

HEARD: October 23, 24, and 25, 2017

REASONS FOR JUDGMENT

HOWARD J.

Overview

1The applicant, Lesley Patricia Nickleson (formerly Skaljac), is 46 years old and resides in LaSalle.

2The respondent, Mike Skaljac, is 53 years old and resides in Windsor.

3The parties were married on February 12, 2000, separated on August 4, 2004, and divorced on August 7, 2009. Theirs was a marriage of some four-and-a-half years.

4There are three children of the marriage, namely, Lauren Victoria Skaljac, born April 7, 2000 (now 18 years of age), Benjamin Michael Skaljac, born September 29, 2001 (now 16), and Katelyn Nicole Skaljac, born January 18, 2004 (now 14).

5Ms. Nickleson commenced this application on September 6, 2005, originally seeking a divorce, custody of the children, child support for the children, exclusive possession of the matrimonial home, equalization of net family property, and related relief. Over the years, however, all of the original claims were ultimately resolved, with the exception of the issue of child support.

6Thus, the only issue remaining for trial before me – and it was a trial of first instance, despite the application having been originally issued in August 2005 – was the issue of the appropriate amount of child support payable by Mr. Skaljac, including the claim of Ms. Nickleson that she was entitled to retroactive child support in order to address Mr. Skaljac’s historic under-payment of support, and the claim of Mr. Skaljac that he was entitled to an adjustment in order to address his alleged over-payment of support.

7Necessarily entailed in the issue of child support is Mr. Skaljac’s claim that during the period from September 1, 2013, to August 31, 2015, the parties maintained a shared custody arrangement, pursuant to which the children resided with him for 50 per cent of the time. As a result, Mr. Skaljac claims there has been an over-payment of child support by him in the amount of $29,400.

8While this matter was originally on the trial list for the week of June 19, 2017, the trial was heard before me on October 23, 24, and 25, 2017. The only two witnesses to give evidence at trial were Ms. Nickleson and Mr. Skaljac.

Factual Background

9I do not propose to summarize the evidence of each of the witnesses who testified before me over this three-day trial, nor to recount the history of the dealings between Ms. Nickleson and Mr. Skaljac post-separation. There is no need to repeat all of that detail here. However, the parties should know that while I have considered all of the evidence presented at trial,¹ my decision deals with the particulars of the material evidence only insofar as necessary to determine the legal issues in question or provide sufficient context for the determination of those issues.

10Ms. Nickleson is a registered dietician by training and is currently employed as a Clinical Nutrition Support Specialist at Windsor Regional Hospital, where she has been for over 12 years. Ms. Nickleson works a steady day shift, Monday to Friday, 7:30 a.m. to 3:30 p.m.

11Mr. Skaljac is a Border Services Officer who has been employed with the Canada Border Services Agency for over 20 years. He is currently assigned to Ambassador Bridge Commercial Operations, a position he has held since April 2012. Mr. Skaljac’s work schedule is not straight-forward and has varied over the years. At the time of separation, Mr. Skaljac was assigned to Ambassador Bridge Travellers’ Operations, in the course of which he processed motor vehicles entering Canada. The evidence of Mr. Skaljac was that the work schedule in his previous assignment in Travellers’ Operation was more difficult than his current assignment; then, he was required to work four weekends out of eight.

12The matrimonial home was located at 489 Kenwood Boulevard, LaSalle, Ontario.

13Following the parties’ separation on August 4, 2004, Ms. Nickleson ultimately remained in the matrimonial home with the children. At the date of separation, Lauren was four years of age, Ben was two years, and Katelyn was just seven months.

14Following the separation in 2004, Mr. Skaljac went to live with his sister in Riverside, in a two-bedroom townhouse, where he remained until in or around 2012.

15The parties are in general agreement that there were very few overnight access visits during the period of years when Mr. Skaljac was living with his sister. According to Ms. Nickleson’s evidence, her records indicate that there were only eight nights when Mr. Skaljac had the children in his care overnight from the time of separation through 2008. The evidence of Mr. Skaljac is generally consistent with that position. In his examination-in-chief, Mr. Skaljac agreed that he did not have the children for many overnight visits during the period 2005 to 2010. Mr. Skaljac explained that the living arrangements at his sister’s townhouse made overnight visits with his three children “unfeasible.”

16The evidence of Ms. Nickleson was that in those early years the access of Mr. Skaljac to the children consisted of short but frequent visits. However, there was a great deal of uncertainty because the parties were not following a fixed access schedule.

17Moreover, Ms. Nickleson testified that the situation was made more difficult by reason of the fact that, despite her numerous and repeated requests, Mr. Skaljac would not provide her with his work schedule. Her evidence was that his refusal to provide his schedule caused unnecessary confusion, turmoil, frustration, and chaos in the lives of herself and their children.

18Mr. Skaljac confirmed in cross-examination that for the first several years after separation Ms. Nickleson did in fact request a copy of his work schedule. Put bluntly, Mr. Skaljac did not believe she required his schedule. He believed she should have been able to just project from the last schedule and figure it out for herself. I would note that there was no evidence led that simply providing Ms. Nickleson with the schedule would have actually caused Mr. Skaljac any undue cost, inconvenience, or prejudice. On the contrary, he admitted in cross-examination that it would have been a relatively simple matter to provide Ms. Nickleson with his schedule. In my view, it is clear that, as reviewed below, Mr. Skaljac intentionally refused to provide Ms. Nickleson with his schedule, and his refusal was motivated by what he considered to be tactical objectives.

19As referenced above, the application was issued on September 6, 2005. The evidence of Ms. Nickleson was that one of the primary reasons she commenced the application was to obtain Mr. Skaljac’s work schedule so that the parties could find some measure of certainty in the access schedule.

20By order of Rogin J. dated March 3, 2006, which was made on consent of the parties, the court ordered that an assessment was to be conducted by a qualified professional on the issues of custody of and access to the children of the marriage.

21To that end, Dr. Rueben L. Schnayer performed a psychological custody and access assessment pursuant to s. 30 of the Children’s Law Reform Act.² On January 23, 2007, Dr. Schnayer delivered his assessment report to the parties, in which he opined that it would be in the children’s best interests for both parents to maintain consistent and frequent involvement in the children’s lives. Dr. Schnayer recommended that Ms. Nickleson maintain primary residence of the children and that Mr. Skaljac should have additional time with the children, including overnight stays. In particular, Dr. Schnayer recommended that:

1. The children with reside primarily with Ms. Nickleson and will have frequent and consistent contact with their father.

2. This contact with their father would include the current arrangement of days when Mr. Skaljac is not working. In addition, on any successive days when the children are not in school, and it is Mr. Skaljac’s day with the children, an overnight would be included. For example, if Mr. Skaljac had the children on a Monday, Tuesday, Wednesday, and Thursday and there was no school on the Tuesday, the Monday night contact would include an overnight stay.³

22The evidence of Ms. Nickleson was that the continued refusal of Mr. Skaljac to provide her with his work schedules caused ongoing unnecessary stress and confusion in the context of her family life and parenting responsibilities. Put generally, her evidence was that the timing of Mr. Skaljac’s access visits were dictated by him. Access visits were scheduled or cancelled by Mr. Skaljac by way of his text messages to either Ms. Nickleson or even the children (which was increasingly the case as the children grew older). Often the messages were received at the eleventh hour. It is not unfair to say that, especially as the children grew older (in which event Mr. Skaljac’s text messages to the children directly, to the exclusion of their mother, became more frequent), Ms. Nickleson would often not know when she got home from work whether she would find all, some, or none of the children at home. She described the resulting impact as chaotic.

23In his closing submissions, Mr. Skaljac admitted that his failure to provide his work schedule to Ms. Nickleson caused disruption to her life but not, he maintained (rather speciously, or at least short-sightedly, in my view) to the lives of his children.

24I note in passing that the said order of Rogin J. dated March 3, 2006, also provided that Mr. Skaljac was to provide Ms. Nickleson “with a copy of his work schedule as soon as possible.”

25By temporary order of Rogin J. dated October 3, 2008, the court ordered, on a without prejudice basis, that Mr. Skaljac should pay interim child support to Ms. Nickleson in respect of the three children in the amount of $1,223 per month in accordance with the tables under the Federal Child Support Guidelines⁴ based on Mr. Skaljac’s then income of $62,533. Mr. Skaljac was represented by legal counsel at the time the order was made.

26This interim court order of October 3, 2008, has been in place since the time it was made. The interim order has never been varied.

27However, it is common ground that in the years that followed the making of the October 2008 support order, Mr. Skaljac’s income increased.

28As referenced above, the parties were divorced by court order dated April 7, 2009.

29The evidence of Mr. Skaljac was that towards the end of 2011 and into early 2012, he moved out of his sister’s home in Riverside and into his mother’s home in south Windsor. He acknowledged there was a lot of “back and forth” between the two residences for a variety of reasons, and he would often return to his sister’s residence because he felt he had “more privacy” at his sister’s townhouse. Mr. Skaljac’s evidence was that his move to his mother’s residence was motivated by his desire to have his children for overnight access visits.

30In April 2012, Mr. Skaljac was re-assigned from Ambassador Bridge Travellers’ Operations to Ambassador Bridge Commercial Operations. Mr. Skaljac testified that the schedule in his current assignment in Commercial Operations is completely different and much better than it was in Travellers’. He explained that in his current assignment he is able to bid, based on his seniority, so that he can receive a satisfactory schedule. He later explained that he is required to work one weekend out of eight, and that none of either himself or his colleagues have straight Monday to Friday shifts. Generally speaking, Mr. Skaljac’s current schedule has him working Tuesday, Wednesday, and Thursday, from 7:00 a.m. to 7:00 p.m. He said he is required to work the occasional Friday but never on Monday. Mr. Skaljac’s evidence was that they usually received their schedules on a four month basis. It seems plain that those schedules were not provided to Ms. Nickleson.

31It is common ground that, commencing in August 2012, Mr. Skaljac started to skip payments of child support to the Family Responsibility Office (“FRO”).⁵ As appears from the statement of arrears produced by FRO on March 13, 2017, the first missed payment was in August 2012.⁶ That was followed by additional missed payments in the months of November 2012, April 2013, September 2013, November 2013, March 2014, and May 2014.

32By letter dated May 28, 2013, legal counsel for Ms. Nickleson wrote to Mr. Skaljac (who was then no longer represented by counsel) to request that Mr. Skaljac provide income disclosure for the taxation years 2008 through 2012 in order to address the issue of retroactive and ongoing adjustment to child support.

33By notice of motion dated July 16, 2014, returnable August 8, 2014, Ms. Nickleson brought a motion requesting, inter alia, an order requiring Mr. Skaljac to produce his income tax records for the taxation years 2008 through 2013 and his 2014 year-to-date income, as well as an order for a specified access schedule. That motion was adjourned several times over the next three years and, ultimately, was not heard before trial.

34Following the first return date of the applicant’s motion, sometime in the autumn of 2014, Ms. Nickleson and Mr. Skaljac attended a one-day mediation session with Bridging Family Conflict. It appears from the records of Bridging Family Conflict that the mediation was conducted on October 19, 2014.⁷ Although there was some considerable dispute at trial about the date of the mediation, ultimately nothing turns on the precise date it was held.

35Commencing July 1, 2015, Mr. Skaljac unilaterally decided to stop payment of all child support under the interim order of Rogin J. dated October 3, 2008. No further child support payments were made until August 2016, as described below.

36I note from a review of the court file – and our Court of Appeal very recently held that a judge is entitled to take judicial notice of what is in the court file⁸ – that Mr. Skaljac retained new counsel on or about November 13, 2015, and then brought a motion dated November 23, 2015, returnable November 27, 2015, seeking, inter alia, an order terminating all child support payable by him.

37However, much like the applicant’s motion of August 2014, the respondent’s motion for termination of child support was also adjourned several times over the next two years and, ultimately, was never heard before trial. Subsequently, Mr. Skaljac discharged his counsel on or before February 4, 2016, the date upon which he delivered a notice of change of representation, advising that he had decided to act in person. He has continued to be self-represented since that time.

38In or about June 2016, Mr. Mark Donlon, M.S.W., was retained to perform an updated custody and access assessment pursuant to s. 30 of the Children’s Law Reform Act. Subsequently, by order of Thomas J. dated November 14, 2016, made on consent of the parties, the court ordered that a s. 30 assessment be completed.

39Given that the respondent’s motion to terminate support was never heard, leaving the court order of October 2008 in full force and effect, and given further Mr. Skaljac’s unilateral decision to cease compliance with the court order, considerable arrears of unpaid child support began to accumulate. Indeed, according to the FRO statement of arrears, the amount owing under the court order reached $21,532.85 as of August 1, 2016.

40Not surprisingly, FRO responded by exercising its extraordinary enforcement powers and, as of August 4, 2016, it commenced garnishment of 50 per cent of Mr. Skaljac’s net pay.

41In October 2016, Mr. Skaljac stopped all regular overnight access visits with the children.

42On December 19, 2016, Mr. Donlon released his clinical investigation report following completion of the updated s. 30 custody and access assessment.⁹ Pursuant to s. 30(9) of the Children’s Law Reform Act, the report is admissible in evidence at the trial of the application. As referenced in the report, the information at the time of Mr. Donlon’s assessment was that the then “current access schedule was established through mediation in August 2015. It provides for the children to be with Mr. Skaljac on two weekends followed by one with Ms. Nickleson. The children are with Ms. Nickleson for the balance of the week.”¹⁰

43Mr. Donlon’s report recommended that Ms. Nickleson be awarded full custody of the three children but that Mr. Skaljac should be consulted regarding significant decision-making, receive all medical and school reports, and be free to arrange his own parent/teacher interviews. In particular, Mr. Donlon recommended that:

1. Full custody to Ms. Nickleson. Both parties should have input to significant decision making, along with the children, particularly Lauren and Benjamin.

2. If Mr. Skaljac secures adequate housing in LaSalle, an equal access schedule is recommended rotating on a weekly basis. If he is unable to secure a residence in LaSalle that resolves transportation issues, the current access schedule should be maintained.¹¹

44It is common ground that Mr. Skaljac has not secured a residence in LaSalle. As of the date of trial, he was continuing to reside with his mother in south Windsor. As such, he does not own his own home and does not have the expenses associated with maintaining a property.

45As of March 7, 2017, the last date of entry on the FRO statement of arrears, the cumulative arrears of child support owing by Mr. Skaljac under the October 2008 order was then $14,638.29.

46On June 2, 2017, the parties executed partial minutes of settlement on the issues of custody and access, which were then filed with the court. Pursuant to the minutes, the parties agreed, inter alia, that Ms. Nickleson shall have custody of the three children and the Mr. Skaljac shall have reasonable access to the children in accordance with their wishes.

47I note in passing that, upon my review of the court file, it does not appear that the partial minutes of settlement executed in June 2017 were ever embodied in a court order. If that is correct, I invite the parties to file with the court the appropriate draft consent order, directed to my attention, and I will sign the order.

Issues

48As presented at trial, the material issues that remain to be determined are as follows:

a. What were the parenting arrangements for the period September 1, 2013, to August 31, 2015?

b. Has there been an over-payment of child support by Mr. Skaljac?

c. Has there been an under-payment of child support by Mr. Skaljac?

d. What is the appropriate amount for child support on an ongoing basis?

Analysis

49There are a number of points that are not in dispute between the parties.

50First, the claim of Mr. Skaljac that there was a shared custody arrangement between the parties pursuant to which he had the children for at least 50 per cent of the time, largely in accordance with his work schedule, is limited to a very specific window: September 1, 2013, to August 31, 2015. In cross-examination, Mr. Skaljac confirmed that he did not have the children for 50 per cent of the time, and he is not claiming that any similar shared custody arrangement was in place, for the years 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2016, 2017, nor for the periods from January 1 to August 31, 2013, or September 1 to December 31, 2015.

51Accordingly, the parties are, in effect, agreed that for the years 2004 to and including 2012, 2016, 2017, and at least the periods from January 1 to August 31, 2013, and September 1 to December 31, 2015, Mr. Skaljac’s child support obligations should be governed by the presumptive rule in s. 3(1) of the Federal Child Support Guidelines that the amount of child support payable is that which is set out in the applicable tables under the Guidelines, according to the number of children and the payor’s income.

52Second, the parties are in agreement as to what Mr. Skaljac’s income was during the years in question. Mr. Skaljac’s income tax records were in evidence before the court. With the exception of 2014, which I address below, this is not a case where there is any disagreement about what amount of income should be used for purposes of calculating child support. To that end, Mr. Skaljac agreed in cross-examination that for the purposes of calculating child support his income was $73,594 in 2010,¹² $73,016 in 2011,¹³ $73,883 in 2012,¹⁴ $76,563 in 2013,¹⁵ $78,915 in 2015,¹⁶ and $79,506 in 2016.¹⁷

53For the 2017 year, the parties agreed that Mr. Skaljac’s projected income is $84,121. Mr. Skaljac produced at trial his most recent pay-slip. That statement of earnings, dated October 18, 2017, indicates that Mr. Skaljac’s year-to-date gross income was $67,944.09.¹⁸ Mr. Skaljac testified that he is paid every other Wednesday and agreed that the statement of earnings reflected his year-to-date income for the 42nd pay period. Extrapolating the $67,944.09 earned for 42 pay periods, Mr. Skaljac agreed that on an annualized basis he is on track to earn $84,121.25 in 2017.

54Third, both parties are in essential agreement, and it is clear from the evidence and submissions at trial, that Mr. Skaljac did not want to pay child support throughout the years in question.

55The evidence of Ms. Nickleson is that Mr. Skaljac frequently communicated his discontent with paying child support to her in text messages and by other methods, as a result of which she was left with the feeling that he resented paying child support.

56That is consistent with the submission that Mr. Skaljac himself put to me in his closing argument, in the course of which he expressly admitted that, “of course, I don’t enjoy paying child support.” Mr. Skaljac explained that he does not enjoy paying child support because he believes it interferes with his ability to purchase, for example, a home for himself and the children and make other preferred financial expenditures. His disposition is consistent with – and, indeed, in my view, largely explains – his several missed payments of child support over the years and his unilateral decision in July 2015 to stop making all payments of child support, which he did for over a year.

57Mr. Skaljac’s discontent with paying child support was also reflected in some of the communications he had with Ms. Nickleson over the years. For example, on May 8, 2013, Mr. Skaljac texted Ms. Nickleson to say that, “I’ll give u a schedule for $1125/mth. Deal?”, which presumably was intended to make reference to the amount of child support he was required to pay (albeit the amount is incorrect).¹⁹ In a similar vein, on February 27, 2014, Mr. Skaljac texted Ms. Nickleson to say that he no longer wanted to pay child support so that he can “have a life with my kids.”²⁰ (I note that March 2014 was one of the months that Mr. Skaljac decided to skip paying child support.) On May 8, 2014, Mr. Skaljac sent a text message to Ms. Nickleson to say that, “I don’t see how a schedule will help the kids since I am getting my licence suspended” and later that day, quite remarkably, he gave an envelope to the youngest child, Kate, to give to her mother, which envelope contained a printed form from FRO for the consensual withdrawal of child support, which Mr. Skaljac wanted Ms. Nickleson to sign.

58However, the clearest evidence of Mr. Skaljac’s discontent with paying child support came during his cross-examination, in the course of which counsel for the applicant put to Mr. Skaljac that his refusal to provide Ms. Nickleson with his work schedule was a form of control mechanism on his part. The response of Mr. Skaljac, and his bald admission, is telling:

It was certainly a point of contention. But let me explain this … We both wanted something from the other, and each of us was unwilling to give the other. It was a give and take. Ms. Nickleson wanted a schedule. I wanted not to pay child support. Ms. Nickleson wasn’t willing to give up child support. So I used that as my leverage: “I won’t be that easy in giving you a schedule.” [Emphasis added.]

59I do not know whether the animosity that Mr. Skaljac harbours for Ms. Nickleson had clouded his judgment in this regard – and both parties admitted that they do not like each other, get along with each other, communicate with each other, or trust each other – but I must say that I was struck, repeatedly, by the apparent absence of any acknowledgement, or perhaps even appreciation, on the part of Mr. Skaljac that his various decisions to stop making the required child support payments, to skip a month here or there, etc., had a detrimental impact on his three children. It was clear that he was not concerned about the financial impact that his decisions would have on Ms. Nickleson. But I saw no evidence that he made the connection that those decisions would also adversely affect his children. It does not square easily with the submission he made to me in closing argument that he would never do anything to harm his children.

60Finally, it is common ground that the children enjoy a loving relationship with their father. Both Dr. Schnayer’s psychological custody assessment²¹ and Mr. Donlon’s clinical investigation report²² speak to the very strong and close positive attachment and emotional bonds that the children feel towards both of their parents. And that is consistent with the observations of Ms. Nickleson, who very candidly offered in her testimony, that the children “love their dad. I support that relationship 100 per cent. … They think very highly of their father.”

What were the parenting arrangements for the period September 1, 2013, to August 31, 2015?

61As referenced above, Mr. Skaljac claims that during the period from September 1, 2013, to August 31, 2015, the parties maintained a shared custody arrangement, pursuant to which the children resided with him for 50 per cent of the time, which, he says, was largely in accordance with his work schedule. As a result, Mr. Skaljac claims that he paid more child support than was legally required of him during that time period.

62In fairness, however, I should note that there was some initial dispute at trial concerning the relevant time period. I understand that at the trial management conference, which was held on June 2, 2017, before Hebner J., Mr. Skaljac took the position, as reflected in his trial management conference brief, that the children were in his care for 50 per cent of the time “for the calendar years 2013 and 2014.” Subrule 17(21) of the Family Law Rules²³ provides that “[t]rial management conference briefs form part of the continuing record.” As such, I note page 5 of Mr. Skaljac’s brief, under the heading “Part 2: Issues for Trial,” where Mr. Skaljac said:

The respondent will show that for the calendar years 2013 and 2014 the three children of the marriage to the applicant were in a 50/50 access schedule comprised of weekend visitation of three and four overnights, in addition to weekday overnights during the summer and holiday breaks, spent in the care of the respondent’s place of residence. [Emphasis added.]

63However, in his opening statement at trial, Mr. Skaljac said that the relevant period for the purposes of his s. 9 claim was September 1, 2013, to August 31, 2015. Mr. Handysides for the applicant, quite naturally, pointed out the discrepancy between the position Mr. Skaljac had taken at the trial management conference and that which he was asserting at trial. By way of explanation, Mr. Skaljac offered that he had meant school year, not calendar year.

64Notwithstanding the clear discrepancy in the two positions, I permitted Mr. Skaljac to advance his amended position at trial, as I was not satisfied that the amendment would cause the applicant to suffer any real trial unfairness that counsel could not address over the three days scheduled for trial, and Mr. Handysides did not request an adjournment of the trial.

Legal principles

Section 9 of the Guidelines

65The starting point for consideration of Mr. Skaljac’s claim is s. 9 of the Federal Child Support Guidelines, which provides that:

9. Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

66I would simply note that while much of the time at trial, in both testimony and argument, was focussed on Mr. Skaljac’s allegation that he had the children for 50 per cent of the time during the relevant time period, the actual legal requirement under s. 9 of the Guidelines is that the claimant must have the children for not less than 40 per cent of the time.

67As the Supreme Court of Canada held in Contino v. Leonelli-Contino, the “framework of s. 9 requires a two-part determination: first, establishing that the 40 percent threshold has been met; and second, where it has been met, determining the appropriate amount of support.”²⁴

Calculating the 40 per cent threshold

68In respect of the first part of the two-stage analysis, our Court of Appeal in Froom v. Froom, 2005 3362 (ON CA),²⁵ and other appellate courts in British Columbia²⁶ and elsewhere, have held that there is no universally accepted method for determining whether the 40 per cent threshold created by s. 9 has been crossed.

69The two most common approaches to calculating access and custody time are in days, and in hours. If using days, to reach 40 per cent, the access parent must have the child in his or her care for 146 days per year. When calculating in hours, the 40 per cent threshold lies at 3,504 hours per year.²⁷

70Cases decided after Froom have highlighted that the method chosen for calculating the 40 per cent threshold is often critical to the outcome of the support analysis in shared parenting situations. In L.(L.) v. C.(M.), Czutrin J. (as he then was) concluded that in light of the importance of this issue, it is desirable to be as precise as possible when carrying out the calculation. Justice Czutrin noted that the overwhelming weight of authority in Ontario and other provinces supports calculating the 40 per cent threshold on an hourly basis.²⁸

71That said, in Froom, our Court of Appeal held that the trial judge there did not err in approach in choosing to calculate the amount of time that the child was in the general care and control of the parent on the basis of days and not hours.

72In the instant case, I propose to approach the calculation by counting days as well. I choose that approach primarily because that is the way the parties themselves approached the calculation and how they presented their respective cases at trial. For example, in his closing argument, Mr. Skaljac submitted that his testimony demonstrated that he had the children for “146 days per year” (which claim he based on his records of his overnight access).

73Further, because the parties approached their respective cases on the basis of counting days (i.e., days where the respective party had overnight access), they did not lead comprehensive evidence of whether the 40 per cent threshold would have been met using an hourly approach. Accordingly, in the absence of the parties presenting their positions on an hourly basis, it is not possible at this stage to make valid a determination using an hourly basis. Moreover, it would not be procedurally fair to either party at this point to determine the question using an hourly approach when they presented their evidence and presented their cases using a daily approach. I note that in Gauthier v. Hart, although J. Mackinnon J. affirmed the appropriateness of an hourly approach, the parties’ evidence did not support an hourly calculation, so the court did not adopt an hourly approach.²⁹

Onus

74It is well established that the onus of proving on the balance of probabilities that the 40 per cent threshold has been met rests on the spouse who seeks to invoke s. 9 of the Guidelines.³⁰ In this case, that onus rests with Mr. Skaljac.

“Over the course of a year”

75Returning to the language of the enactment, s. 9 of the Guidelines requires that Mr. Skaljac establish that he had the children in his care and control “for not less than 40 per cent of the time over the course of a year.” It has been noted that the phrase “over the course of a year” in s. 9 is not defined in the Guidelines and, arguably, is capable of supporting more than one interpretation. Mr. Skaljac submits that the language of s. 9 does not necessarily mean a calendar year but, in effect, could mean any contiguous 12-month period, including, for example, a school year.

76Mr. Skaljac did not submit any decided case, particularly any decision of our court, upon which he relies for the proposition that the reference to a “year” in s. 9 does not mean a calendar year. However, I note that some courts have appeared to adopt that interpretation, including courts in Saskatchewan, Nova Scotia, the Ontario provincial court, and, it has been suggested, Master Nolan (as she then was) of the Ontario Superior Court of Justice in Chickee v. Chickee.³¹

77It is true that in Chickee, Master Nolan allowed a claim by the respondent father that he had the children in his care for at least 40 per cent of the time since April 1, 2000. On the father’s motion, Master Nolan held that s. 9 applied to the case before her on an interim basis. However, a close reading of Master Nolan’s decision indicates that the precise issue of whether the reference to a “year” in s. 9 means something other than a calendar year was not argued before the court, and she did not decide that issue. Rather, the argument before Master Nolan was whether s. 9 could have any application when a full year had not yet elapsed; in that case, again, the father claimed that he had the children since April 2000, and the motion before the court was argued and decided in July 2000, with Master Nolan expressly indicating that a full consideration of the matter “can be determined on evidence at the hearing to take place during the week of September 11.”³²

78The most comprehensive analysis of the issue in our court appears to be the decision of Mackinnon J. in Gauthier v. Hart, where the court conducted an extensive review of the authorities, including the decision in Chickee and the other cases referenced above from Saskatchewan and Nova Scotia, and concluded that the more appropriate interpretation of s. 9 requires a calculation of time over a calendar year.³³ The decision in Gauthier was adopted in Thompson v. Thompson, where Chappel J. observed that “it has been held that the appropriate time for the calculation of time spent with each parent is the calendar year.”³⁴

79While I acknowledge that the language of s. 9 is, arguably, capable of supporting more than one interpretation, in my view, the better interpretation is to read s. 9 as requiring a calculation that demonstrates whether the parent had the child for not less than 40 per cent of the time over the course of a calendar year, as Mackinnon J. concluded in Gauthier and Chappel J. concluded in Thompson.

80In my view, such an interpretation more closely accords with the text of the language of the Guidelines, which, it is worth noting, does not say “for not less than 40 per cent of the time over the course of any contiguous 12-month period.” If Parliament had intended to permit “any 12-month period,” it could have expressly said so.

81I acknowledge that, by the same token, Parliament did not use the express language of a “calendar year” in s. 9. However, the interpretation of “a year” as meaning “a calendar year” is more consistent with the language that Parliament did use in the Guidelines. In this regard, I note that under s. 2(1) of the Guidelines “income” is defined to mean “the annual income determined under sections 15 to 20.” The term “annual income” is used throughout ss. 15 to 20 of the Guidelines, and there is no suggestion that it means anything other than income determined on a calendar basis.

82In this regard, I agree with the observation of Mackinnon J. in Gauthier that it makes sense that the definition of income, which, in accordance with s. 2(1) of the Guidelines, means annual income determined on a calendar basis, should coincide with the same period contemplated by the phase “over the course of a year” under consideration in s. 9.³⁵

83I also agree with the reasoning of the court in Gauthier that a retroactive consideration of child support lends itself to a calendar year approach, and a calendar approach better promotes the objectives of the Guidelines, as set out in s. 1 thereof, which provides that:

1. The objectives of these Guidelines are

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

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

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

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.³⁶

84In my view, it would neither “reduce conflict and tension between spouses” nor make “the calculation of child support orders more objective” if the Guidelines were interpreted in a fashion that would, in effect, allow a support payor to choose whatever contiguous 12-month period was more advantageous to him or her in the sense of reducing the amount of child support payable. Indeed, such an interpretation would have the opposite effect: it would promote self-serving, subjective interpretations, which can only be expected to heighten and inflame conflict and tension between spouses.

85Further, such an interpretation would undermine the “efficiency of the legal process” – and, indeed, would complicate it – by requiring multiple calculations of child support, using different bases for the calculation under different sections within the Guidelines, within the same calendar year. So, for example, if Mr. Skaljac’s approach were adopted, then for the 2013 year, the parties would have to agree on, or the court would have to determine, Mr. Skaljac’s child support obligations for the stub period January 1 to August 31, 2013, using the presumptive approach under s. 3(1) of the Guidelines, and then engage in the s. 9 analysis for the subsequent period of September 1, 2013, to August 31, 2014. And that in turn raises the question of what income should one consider and apply for that 2013-2014 period: Mr. Skaljac’s income for the 2013 taxation year? Or his income for the 2014 taxation year? Or some pro rata income figure combing both? It is plain that the approach advanced by Mr. Skaljac would make the calculation of child support considerably more cumbersome, thereby defeating the objectives of efficiency in the legal process.

86Further, the problems would only be compounded in a case where there are multiple children if each of the children do not share the same access schedule with the support payor. In such circumstances, the interpretation proposed by Mr. Skaljac applied to, for example, a situation of three children, where the eldest child resides with the custodial parent, the second child resides with the support payor for 40 per cent of the 12-month period from September 1, 2013, to August 31, 2014, and the third child resides with the support payer for 40 per cent of the 12-month period from April 1, 2013, to March 31, 2014, would result in a highly cumbersome accounting.

87In my view, for all of these reasons, such an interpretation should be avoided. I conclude that the reference to a “year” in s. 9 of the Guidelines should be interpreted as meaning a calendar year.

Application to 2013

88Adopting what I hold to be the correct calendar year approach to s. 9, it is clear that Mr. Skaljac’s claim for the 2013 year must fail.

89The evidence of Mr. Skaljac at trial was that after he moved out of his sister’s residence in late 2011 and early 2012 and transitioned over to living with his mother at her home in south Windsor, by September 2013 the overnight access situation had changed, and he began to have the children for 50 per cent of the time. Mr. Skaljac claimed that, while he did not have the three children in his care for 50 per cent of the time during the period January 1 to August 31, 2013, he did have the children for 50 per cent of the time from September 1 to December 31, 2013. That is, his evidence was that he did not have the children in his care during the January to August period as much as he did in September to December, 2013.

90The evidence of Mr. Skaljac, based on the calendars he produced, was that he had the children for 44 days during the period September 1 to December 31, 2013, as follows: seven days in September, 13 in October, 11 in November, and 13 in December.³⁷

91There were 122 days from September 1 through and including December 31, 2013.

92Accordingly, even assuming for the purposes of argument that the court accepts all of the evidence of Mr. Skaljac – and as indicated below, I have certain concerns regarding that evidence – taking his case at the very highest, and thus assuming that Mr. Skaljac had the children for 44 days over the 122 day period, that amounts to only 36.07 per cent of the time over that four-month period.

93Of course, s. 9 requires a calculation of whether Mr. Skaljac had the children for at least 40 per cent of the time over the course of a year, which requires consideration of his access to the children during the period January 1 to August 31, 2013. However, Mr. Skaljac did not produce the same kind of records for the January to August period that he did for September to December 2013, no doubt because, of course, he was not claiming that he had the children for 50 per cent of the time during the January to August period.

94However, again, the evidence of Mr. Skaljac was that he did not have the children as much during the January to August period as he did during the September to December 2013 period. But assuming for the moment that that is incorrect, and assuming in Mr. Skaljac’s favour that he had the children in his care during the January to August period at least as much as he did during the September to December period – and again, his evidence is that he had the children less frequently during the January to August period – then, at best, he would have the children no more than 36.07 per cent of the time in the 2013 calendar year.

95In fact, given Mr. Skaljac’s evidence that he had the children less frequently during the January to August period, the percentage of time Mr. Skaljac had the children in his care during the 2013 calendar year must be less than 36.07 per cent of the time, again assuming all of the evidence in his favour and taking his case at its very highest. That does not pass the 40 per cent threshold established by s. 9 of the Guidelines.

96I therefore conclude that Mr. Skaljac has failed to meet the onus on him to establish that his access time with the children meets the 40 per cent threshold for the year 2013 and, thus, his claim under s. 9 of the Guidelines does not survive the first stage of the analysis under s. 9.

Application to 2015

97Much like the analysis of his claim for 2013, it is clear that Mr. Skaljac’s claim for the 2015 year must also fail.

98The evidence of Mr. Skaljac, based on the calendars he produced, was that he had the children for 95 days during the period January 1 to August 31, 2015, as follows: 13 days in January, 12 in February, 15 in March, eight in April, 12 in May, nine in June, 14 in July, and 12 in August.

99There were 243 days from January 1 through and including August 31, 2015.

100Accordingly, even assuming for the purposes of argument that the court accepts all of the evidence of Mr. Skaljac, taking his case at the very highest, and assuming that Mr. Skaljac had the children for 95 days over the 243 day period, that amounts to 39.09 per cent of the time.

101Mr. Skaljac did not keep the same kind of records for the September to December 2015 period as he did for January to August. But again, his evidence was that he did not have the children as much during the September to December months as he did during January to August.

102Accordingly, the percentage of time that Mr. Skaljac had the children in his care during the 2015 calendar year must be less than the 39.09 per cent of the time that he says he had them from January to August, again assuming all of the evidence in his favour and taking his case at its very highest. Again, that does not pass the 40 per cent threshold established by s. 9 of the Guidelines.

103No doubt it will be thought by Mr. Skaljac that 39.09 per cent (and again, the actual percentage must be less than 39.09) is obviously very close to the 40 per cent threshold established under s. 9 of the Guidelines. That is true, but the courts have repeatedly held that “the courts do not have discretion to round up or down to reach (or avoid) a finding that a parent has access 40 per cent of the time. Forty per cent is fixed as a firm threshold.”³⁸

104The strictness of the 40 per cent threshold is reflected in the result in Gauthier v. Hart, where Mackinnon J. calculated that the father had the children 39.6 per cent of the year but still dismissed his claim under s. 9.³⁹ Indeed, the court expressly held that, “Mr. Hart comes close but does not exceed the 40 per cent threshold. He is about one and one-half days short over the course of the year.”⁴⁰

105Similarly, in Maultsaid v. Blair, the British Columbia Court of Appeal held that even though the father was only two days short over a 12-month period, that was insufficient to meet the 40 per cent threshold under s. 9.⁴¹

106Moreover – and it is critically important for Mr. Skaljac to understand this – it must be appreciated, as Mackinnon J. pointed out in Gauthier, that even where one surpasses the 40 per cent threshold, that does not necessarily mean that one will pay less child support.⁴² It means only that the first stage of the two-part analysis has been met, and the court would then proceed to the second part and consider the factors enumerated in s. 9 of the Guidelines for determining the quantum of support. However, as was noted in Reynolds v. Higuchi, the court “may still conclude that the Guidelines amount is proper. There is no presumption in favour of reducing the child support obligation downward from the Guidelines amount.”⁴³ Indeed, in some circumstances, a trial judge will commit no reversible error where the full amount of table support under the Guidelines is ordered, even where the parties had a shared parenting arrangement in place that engaged s. 9 of the Guidelines.⁴⁴

107I therefore conclude that Mr. Skaljac has failed to meet the onus on him to establish that his access time with the children meets the 40 per cent threshold for the year 2015 and, thus, his claim under s. 9 of the Guidelines does not survive the first stage of the analysis under s. 9.

Application to 2014

108Somewhat different considerations apply to the analysis of the 2014 year.

109The evidence of Mr. Skaljac, based on the calendars he produced, was that he had the children for 155 days during the period January 1 to December 31, 2014, as follows: 12 days in January, 12 in February, 8 in March, 14 in April, 16 in May, 10 in June, 16 in July, 14 in August, 13 in September, 11 in October, 14 in November, and 15 in December.

110Accordingly, if the court were to wholly accept the evidence of Mr. Skaljac, and if the court were then to find that Mr. Skaljac had the children for 155 days over the 365 day period, that would amount to 42.47 per cent of the time over the course of the year, thus surpassing the 40 per cent threshold under s. 9 of the Guidelines.

111It thus becomes necessary to subject the parties’ evidence to further scrutiny.

112Both parties produced documents and records in support of their respective positions on the s. 9 issue. At the trial management conference held June 2, 2017, Hebner J. ordered both parties to disclose, by June 9, 2017, copies of all calendars upon which they planned to rely at trial.

113Among other records, Ms. Nickleson produced a small pink-coloured notebook, which was referred to as her “Access Record Diary” in these proceedings, in which she made, from time to time, notes providing a daily access log for certain portions of the years 2012, 2013, 2014, 2015, and 2016.⁴⁵ The Access Record Diary also contains, in various instances, notes about interactions she had with the children and Mr. Skaljac, including, for example, text messages she received from Mr. Skaljac. The Access Record Diary also records, from time to time, entries reflecting Ms. Nickleson’s personal thoughts and observations about certain events, somewhat akin to diary entries.

114The evidence of Ms. Nickleson, which was not challenged on cross-examination and which I accept, was that her notations in her Access Record Diary were made contemporaneously with the events in question. As I review the handwriting in her notebook, I observe that Ms. Nickleson’s various notations are written at times in pencil, at times in blue ink, and at times in black ink.

115Based on her handwritten notes contained in the Access Record Diary, Ms. Nickleson then prepared, in effect, a typewritten version of her access log and notes,⁴⁶ as well as a summary of the overnights the children spent with each of the applicant and respondent.⁴⁷

116Ms. Nickleson also produced other records, which are not directly relevant for present purposes.⁴⁸

117It is to be noted that Ms. Nickleson did not keep notes and daily log entries for the entire 2014 calendar year. Her 2014 notes and records generally cover only the first half of the year, as follows: January (from the 4th to 31st), February, March (from the 3rd to 31st), May, and June (from the 1st to the 14th). Ms. Nickleson was questioned as to why she did not keep records for the entire year, and she explained that she originally started to maintain her diary in order to give her previous counsel some sense of what the respondent’s access looked like. She generally tried to find some time at work to keep her notebook up to date, but work priorities often intervened. Ms. Nickleson said that never did she think to find herself in court one day recounting her diary entries. That is, she did not foresee the need to maintain log entries for all the months in question.

118However, her evidence at trial was that, while she may not have kept records for certain months in question, the pattern of access during those “missing months” was consistent with that of the months for which she did have records.

119To summarize the evidence of Ms. Nickleson on the respondent’s access to the children, Ms. Nickleson steadfastly denied Mr. Skaljac’s central allegation that he had the children for 50 per cent of the time during the period from September 1, 2013, to August 31, 2015. That proposition was put to her, in chief and cross, and she replied, “absolutely not.” She was not shaken on cross on that point.

120As indicated above, it is common ground that in the early years following separation Mr. Skaljac had the children with him for overnight access on very few occasions. Again, the evidence of Ms. Nickleson was that there were only eight such overnights from separation until 2008. That was not contested by Mr. Skaljac.

121Ms. Nickleson testified that in subsequent years it was very rare that Mr. Skaljac would have the children with him overnight on a school night. However, beginning in or about September 2013, Mr. Skaljac’s weekend access started to increase, and he started to take the children from Friday after school until Sunday at 7:00 p.m. She also said that, beginning in 2013, he started to build some consistency with after-school visits on Thursday evening from 3:00 to 7:00 p.m.

122As Mr. Skaljac’s access became more consistent, Ms. Nickleson asked for some scheduled weekend time with the children as well, such that, by March 2014, they had established a pattern whereby Mr. Skaljac would have the children for two weekends in a row and then Ms. Nickleson would have the children for one weekend. That pattern continued throughout 2014, and the outcome of the mediation (which Ms. Nickleson thought took place in August 2014) simply confirmed and solidified the same pattern that the parties had already established.

123Mr. Skaljac produced certain records as well. However, by his own admission, Mr. Skaljac did not keep separate track of the days that he had the children in his care. He has no direct records of the days he had access to the children. Certainly, none were produced to the court.

124Rather, the records produced by Mr. Skaljac at trial were ultimately based on his work records. Mr. Skaljac produced a print-off of the computerized records of the time sheets that he submitted to and were logged by his employer.⁴⁹ It appears that from those time sheets, Mr. Skaljac then marked up a “Day-Timer” calendar booklet, i.e., a pocket-sized booklet that he received from his union, which contains monthly Day-Timer calendars for the year in question. Mr. Skaljac produced three such Day-Timer calendar booklets, one for each of the years 2013, 2014, and 2015, each of which was marked as an exhibit at trial.⁵⁰

125In his closing submissions, Mr. Skaljac clarified that these Day-Timer calendars were created contemporaneously with the events in question, a point to which I return below.

126Mr. Skaljac made very few notations on the monthly calendar pages in each of the three Day-Timer booklets. Those notations that he did make were meant to show only three things.

127First, Mr. Skaljac took a yellow highlighter and made a slash or hash mark through any day on the monthly Day-Timer calendars when Mr. Skaljac was working. Any day without any such hash mark was a day that Mr. Skaljac had off. As such, at first blush, what the Day-Timer calendars primarily tell the reader is those days that Mr. Skaljac worked that month.

128Second, Mr. Skaljac took an orange highlighter and circled the dates of any days where, he says, Ms. Nickleson had the children.

129And finally, on occasion, Mr. Skaljac made a notation, handwritten in blue ink, on certain days when he was either off sick or on vacation.

130Apart from the markings for those three limited purposes, the Day-Timer calendars bear no other notations or annotations. They contain no other detail and, again, they do not directly record those days where Mr. Skaljac says he had the children in his care.

131Based on his Day-Timer calendars, Mr. Skaljac then prepared a second set of summary calendars for the months of September 2013 through to August 2015, on the face of which, he said, he noted any day that he had the children overnight by inserting a typewritten “O” on the calendar for that day. It is common ground that these summary calendars were not made contemporaneously with the events in question but were made for the purposes of the litigation and were produced to the applicant only in June 2017, on the eve of what was then the expected trial.

132To summarize the evidence of Mr. Skaljac on his access to the children, his position in chief was that he had the children in his care for 50 per cent of the time from September 1, 2013, through to August 31, 2015, i.e., throughout the calendar year 2014. He testified that, beginning in or about September 2013, he had the children on any day when he was not working.

133Further, Mr. Skaljac testified that the parties generally followed the recommendations of Dr. Schnayer that Mr. Skaljac not have the children for any overnight that was a school night, and so that, looking at his Day-Timer calendars for 2014, he had the children with him on any days on the calendar that were not marked by a yellow highlighter hash mark, unless (a) that unmarked day was a school night, in which case, in accordance with Dr. Schnayer’s recommendation, he did not have the children overnight on school nights; or (b) that day was circled by an orange highlighter, which denoted that Ms. Nickleson had the children; provided that (c) Mr. Skaljac would have the children overnight on Thursday night if the following Friday was not a school day.

134Mr. Skaljac absolutely denied that the parties followed the pattern of two weekends with him followed by one weekend with Ms. Nickleson in the year 2014, as described by Ms. Nickleson in her evidence.

135There are obvious discrepancies in the evidence of the parties. Indeed, their respective testimony about the pattern of access of the respondent to the three children in 2014 cannot be reconciled. They each dispute the access schedule described by the other. I have therefore placed some considerable weight on the records produced by each party to substantiate their respective positions.

136In this regard, I have various concerns with the evidence presented by Mr. Skaljac. Weighing the respective merits of the evidence of the parties, and considering the credibility and reliability of the evidence, I note the following:

a. Mr. Skaljac maintained right up to trial and throughout the proceedings that he had the children in his care for 50 per cent of the time, and yet when he was cross-examined on his records, he admitted that – for almost every single month in issue – that he did not have them for 50 per cent of the time.

b. Mr. Skaljac kept no contemporaneous access records for any of the years in question.

c. Ms. Nickleson did keep detailed contemporaneous access records for almost half of the instant year in question in 2014.

d. In cross-examination, Ms. Nickleson was not questioned on the daily access logs that she did produce for the months January to June 2014. Insofar as Ms. Nickleson’s access records were concerned, the focus of the cross-examination by Mr. Skaljac concentrated on Ms. Nickleson’s inability to produce records for the entire year. In my view, her explanation for the missing months of July to December withstood cross-examination. But apart from the question of the missing months, Ms. Nickleson’s evidence in respect of the daily access logs that she did produce was, essentially, entirely unchallenged.

e. I accept the explanation of Ms. Nickleson for the missing months. I do not ascribe any ulterior motive to her inability to produce daily logs for those months, nor do I draw any adverse inference in that regard. Moreover, it is not clear to me that it lies in the mouth of Mr. Skaljac to fault Ms. Nickleson for failing to produce contemporaneous notes for all the months in question when he produced no contemporaneous notes at all.

f. Further, I accept the evidence of Ms. Nickleson that the pattern of Mr. Skaljac’s access during the missing months of July to December largely resembled the pattern of access that was followed during January to June, in respect of which she did produce contemporaneous access records. I note that the level of access reflected in Ms. Nickleson’s records for January to June 2014 is also largely consistent with the access reflected in her records for June to December 2013,⁵¹ June to December 2015,⁵² and January to September 2016.⁵³ There was nothing in the evidence of either party to suggest that there was some extraordinary event that occurred in the lives of the parties or the children that would have radically altered the pattern of access during the months of July to December 2014.

g. In cross-examination, Mr. Skaljac admitted that when he looked at his records for October 2014, he agreed that he could see a pattern of access (two weekends with him followed by one weekend with her) that was consistent with the evidence of Ms. Nickleson.

h. As referenced above, Mr. Skaljac admitted early on his examination-in-chief that he did not keep track of the days he had the children.

i. That evidence is consistent with the evidence he gave on his questioning on April 28, 2016, when he was examined by Mr. Handysides for the applicant, and the following exchange took place:

186. Q. Do you have any notes or records to backup what you’re saying?

A. I do not, no.

187. Q. Okay. Do you keep a calendar or a log?

A. I do not. I did not, no.⁵⁴

j. However, the submission of Mr. Skaljac at trial was that the entries in his three Day-Timer calendars for the years 2013, 2014, and 2015 were made contemporaneously with the events in question.⁵⁵

k. I have some difficulty accepting that the Day-Timer calendars were made contemporaneously with the events. First and foremost, as set out above, when he was asked in April 2016 whether he kept a calendar or a log, Mr. Skaljac replied that he did not. Copies of the Day-Timer calendars were only subsequently produced in June 2017, more than a year after the questioning.

l. Secondly, I have examined the originals of the three Day-Timer calendars, and I note that all of the hash marks, indicating the days Mr. Skaljac was working, appear to be the same yellow highlighting colour, suggesting that they were all made by the same yellow highlighter. Similarly, the dates that Mr. Skaljac said he circled to indicate any night that Ms. Nickleson had the children all appear in the same orange highlighting colour, suggesting that they were all made by the same orange highlighter. As well, on those relatively few dates where there is some notation that Mr. Skaljac made to indicate he was off sick or was on vacation, all of those notations were apparently made in the same blue ink colour. I do not rest my decision on this point alone, but unless one were prepared to accept the unlikely notion that whenever Mr. Skaljac went to make a notation in his calendars he used the same yellow highlighter and the same orange highlighter and the same blue pen (or even multiple instruments of the same colour) each and every time – over the course of three years – the markings and writings in the calendars suggest that the entries were in fact not made contemporaneously with the events. The circumstances of the markings are certainly suspicious.

m. Further, I have concerns regarding the reliability of the Day-Timer calendars. They are very sparsely annotated and contain very little detail. They record only certain work-related events, e.g., when Mr. Skaljac had booked off sick. They are not a comprehensive account of his day. And they do not record any dealings with or events concerning the children. They do not record, for example, the incident on May 8, 2014, regarding the FRO form. Notes taken contemporaneously with events often include such details.

n. Further, even with respect to the information that Mr. Skaljac says the calendars were intended to convey, they are not reliable records. The evidence of Mr. Skaljac was that he circled in orange highlighter any day where Ms. Nickleson had the children. But, to take one obvious example, if one looks at the calendar for March 2014 and, in particular, the week commencing Monday, March 10, Mr. Skaljac has written the word “Rigaud” across that week. It is common ground that Mr. Skaljac had to travel for work that week in order to attend some training program in Rigaud, Quebec. As such, the children were in the care of their mother that week. However, Mr. Skaljac’s calendar shows orange highlighter circles around only Friday, March 14th and the subsequent weekend. There are no orange circles around Monday the 10th, Tuesday the 11th, Wednesday the 12th, or Thursday the 13th, and yet it is common ground that the children were in the care of their mother that week. I therefore conclude that the Day-Timer calendars are not a complete or reliable record of which parent had the children in their care.

o. Fundamentally, the Day-Timer calendars are not access records. Mr. Skaljac admits that he kept no records that separately tracked the days he had access to the children. What he did do is keep track of the days he worked, and that is really all the Day-Timer calendars show. All that he did was mark the Day-Timer calendars to show what days he worked, and then in his evidence he applied certain assumptions inherent in his position (e.g., that he had the children on any day that he did not work) to his work schedule, as reflected in his Day-Timer assumptions. That is not record-keeping; that is assumption-keeping. In my view, the Day-Timer records server no greater function than that of an aide memoire: when Mr. Skaljac looks at the calendars, if he sees no yellow highlighter hash mark on that day, he in effect concluded, “oh, well I must have had the kids that day.”

p. Further, at numerous times during Mr. Skaljac’s testimony, it was evident that Mr. Skaljac had little independent memory of the events in question. For example, Ms. Nickleson testified in chief that, as referenced, Mr. Skaljac was away in Rigauld for training the week of March 10th. Her log entry for Saturday, March 8th indicates, “Dad leave for work training in Quebec.” She also testified that, the very next week, she took the children on vacation to the Turks and Caicos. Her entry for Friday, March 14th indicates, “Vacation to Turks & Caicos with Mom.” Mr. Skaljac had no recollection of the children’s vacation to Turks and Caicos the week after he got back from Rigauld.

q. In a similar vein, in Mr. Skaljac’s cross-examination of Ms. Nickleson, it was established and agreed that the incident when Mr. Skaljac gave Katelyn the envelope with the FRO form to give to her mother because he wanted her to voluntarily agree to withdraw child support occurred on May 8, 2014. Mr. Skaljac said that, “I do not dispute the date” and “I fully accept the date.” However, the very next day during cross-examination of Mr. Skaljac, he said he could not recall whether the incident with the FRO form occurred on May 8, 2014. He testified, “I have absolutely no specific recollection of the day that that form had been given to my daughter to give to her mother.”

r. When Mr. Skaljac was examined about Ms. Nickleson’s repeated requests for his work schedule – which was a fairly significant theme in the evidence of both parties at trial – Mr. Skaljac said that he could not recall when Ms. Nickleson stopped asking him for his work schedule. He could not remember when she last asked him for his schedule. He could not recall whether she asked for a schedule in 2017. He could not recall whether she asked for one in 2016. He could not recall whether she asked for one in 2015. He could not recall whether she asked for one in 2014.

137In all of these circumstances, I prefer and accept the evidence of Ms. Nickleson where the evidence of the respondent conflicts with the evidence of the applicant on the issue of when Mr. Skaljac had the children in his care.

138The access records maintained by Ms. Nickleson indicate that Mr. Skaljac did not have the children in his care for at least 40 per cent of the time. In particular:

a. Ms. Nickleson’s access summary for January 2014 (in respect of which she kept records for January 4th to the 31st, i.e., 27 days) indicates that Mr. Skaljac had the children for five overnights (two of which were with only the older two children, as the youngest Kate was with her mother) and five days of after-school visits from 3:00 to 7:00 p.m. Even making no deduction for the two nights when Mr. Skaljac did not have all three of the children, and allowing that the five days of after-school visits represents almost one further day of access, at most Mr. Skaljac had the children for no more than 22.22 per cent of the time (6/31).

b. Ms. Nickleson’s access summary for February 2014 indicates that Mr. Skaljac had the children for seven overnights (one of which was with only two children, as Kate was with her mother) and two days of after-school visits from 3:00 to 7:00 p.m. Again, even making no deduction for the one night Kate was with her mother, and (generously) allowing that the two days of after-school visits might be thought to reflect a half-day of access, at most Mr. Skaljac had the children for no more than 26.79 per cent of the time (7.5/28).

c. Ms. Nickleson’s access summary for March 2014 (in respect of which she kept records for March 3rd to the 31st, i.e., 29 days) indicates that Mr. Skaljac had the children for three overnights and two days of after-school visits from 3:00 to 7:00 p.m. Again, even allowing that the two days of after-school visits might be thought of as a half-day, at most Mr. Skaljac had the children for no more than 12.07 per cent of the time (3.5/29).

d. Ms. Nickleson’s access summary for April 2014 indicates that Mr. Skaljac had the children for nine overnights, which amounts to 30 per cent of the time (9/30).

e. Ms. Nickleson’s access summary for May 2014 indicates that Mr. Skaljac had the children for nine overnights, which amounts to 29.03 per cent of the time (9/31).

f. Ms. Nickleson’s access summary for June 2014 (in respect of which she kept records for June 1st to 14th) indicates that Mr. Skaljac had the children for three overnights, which amounts to 21.43 per cent of the time (3/14).

g. Ms. Nickleson’s access records therefore indicate that Mr. Skaljac never had the children for even a third of the time.

h. I find, on a balance of probabilities, that the level of access for the balance of the year would not have been materially different from what it was in January to June 2014.

139I therefore conclude that Mr. Skaljac has failed to meet the onus on him to establish that his access time with the children meets the 40 per cent threshold for the year 2014 and, thus, his claim under s. 9 of the Guidelines does not survive the first stage of the analysis under s. 9.

Has there been an over-payment of child support by Mr. Skaljac?

140The claim of Mr. Skaljac that he had over-paid child support by $29,400 was dependent on him establishing that he had the children in his care for at least 40 per cent of the time from September 1, 2013, to August 31, 2015. As I have found that the latter claim must fail, the former must also. I find that there was no over-payment of child-support.

Has there been an under-payment of child support by Mr. Skaljac?

141In cross-examination, Mr. Skaljac fairly readily agreed that he had under-paid child support for the years 2010, 2011, 2012, and 2016, and he ultimately agreed that he had under-paid for 2013, 2014, and 2015 as well.

142As referenced above, the parties are in agreement as to what Mr. Skaljac’s income was during the years in question. The only question that requires determination is what income should be used for the 2014 year for child support purposes.

143For the 2014 taxation year, Mr. Skaljac’s line 150 total income was $107,540. Included in that amount was what was called a “severance termination benefit” of $21,247.22, although it is common ground that Mr. Skaljac’s employment was not in fact terminated.

144The evidence concerning the nature of this payment was not entirely clear. As far as Mr. Skaljac understood it, the $21,247.22 was a payment in lieu of some benefit that his union had lost in a previous collective agreement and any employee, like him, who was entitled to the benefit at the time was grandfathered; and so he received the payment.

145In closing argument, Mr. Handysides likened it to a bonus that was received as a result of a collective agreement negotiation. There was no evidence called to that effect, and the evidence that is before me is not entirely satisfactory.

146What is clear, and this is conceded by Mr. Handysides, is that the $21,247.22 amount was a non-recurring payment.

147Given that the proper nature of the payment was not clearly established in evidence, except that it was non-recurring, I am not prepared to include the amount in Mr. Skaljac’s 2014 income for child support purposes. I would fix Mr. Skaljac’s income for 2014 as $86,293 for child support purposes.

148I therefore calculate the under-payment of child support as follows:

Year	Income	Support Payable under Tables	Support Payable under 2008 Interim Order	Difference in Support Payable	Support Owing
2010	$73,594	$1,411 x 12 mos.	$1,223 x 12 mos.	$188 x 12 mos.	$2,256
2011	$73,016	$1,402 x 12 mos.	$1,223 x 12 mos.	$179 x 12 mos.	$2,148
2012	$73,883	$1,423 x 12 mos.	$1,223 x 12 mos.	$200 x 12 mos.	$2,400
2013	$76,563	$1,472 x 12 mos.	$1,223 x 12 mos.	$249 x 12 mos.	$2,988
2014	$86,293	$1,630 x 12 mos.	$1,223 x 12 mos.	$407 x 12 mos.	$4,884
2015	$78,915	$1,513 x 12 mos.	$1,223 x 12 mos.	$290 x 12 mos.	$3,480
2016	$79,506	$1,522 x 12 mos.	$1,223 x 12 mos.	$299 x 12 mos.	$3,588
2017	$84,121	$1,595 x 10 mos.	$1,223 x 10 mos.	$372 x 10 mos.	$3,720
Total					$25,464

149Accordingly, I find that Mr. Skaljac under-paid child support for the years 2010 to October 31, 2017, by the total amount of $25,464.

What is the appropriate amount for child support on an ongoing basis?

150As indicated above, it is common ground that Mr. Skaljac’s projected gross income for the 2017 taxation year is $84,121. Child support should be based on that amount. Mr. Skaljac agreed in cross-examination that his obligation should be based on that amount for 2017. The table support payable under the Guidelines is $1,595 per month.

Conclusion

Child support issues

151For all of these reasons, a final order shall issue in accordance with the following terms:

a. The respondent, Mike Skaljac (the “respondent father”), shall pay child support to the applicant, Lesley Patricia Nickleson (formerly, Skaljac) (the “applicant mother”), for the three children of the marriage, namely, Lauren Victoria Skaljac, born April 7, 2000, Benjamin Michael Skaljac, born September 29, 2001, and Katelyn Nicole Skaljac, born January 18, 2004, in the amount of $1,595 per month, in accordance with the tables under the Federal Child Support Guidelines based on the respondent’s projected 2017 annual income of $84,121, commencing November 1, 2017, and continuing on the first day of each month that follows.

b. The respondent father shall pay to the applicant mother the amount of $25,464 as a retroactive adjustment, representing the cumulative under-payment of child support payable by the respondent father to the applicant mother under the temporary order of the Honourable Mr. Justice Rogin dated October 3, 2008, accumulated over the period from January 1, 2010, to and including October 31, 2017.

c. The said retroactive adjustment is owing, payable, and enforceable in addition to any arrears currently being enforced through the Family Responsibility Office pursuant to the temporary order of the Honourable Mr. Justice Rogin dated October 3, 2008.

d. The interim child support ordered in para. 1 of the temporary order of the Honourable Mr. Justice Rogin dated October 3, 2008, is terminated effective October 31, 2017, except that any arrears owing under the said order as of October 31, 2017, remain owing, payable, and enforceable through the Family Responsibility Office.

e. For as long as child support is payable, the respondent father shall, no later than 30 days after the anniversary of the date of this order, provide the applicant mother with updated income disclosure in accordance with s. 24.1 of the Child Support Guidelines (Ontario), including, in particular, a copy of his notice of assessment, notice of reassessment (if any), and income tax return (including any schedules, information slips, or other materials that were filed with the return), in respect of the most recent taxation year.

f. Unless this order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

g. This order bears interest at the postjudgment interest rate of two (2) per cent per year effective from the date of this order. A payment in default bears interest only from the date of default.

Costs

152Costs should normally follow the event. Subrule 24(1) of the Family Law Rules provides that “[t]here is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.” The applicant was successful at trial and is presumptively entitled to her costs.

153Further, my presumptive view of the matter is that, as the sole issues at trial related to child support, the costs of the trial should be deemed to be related to child support and, as such, should be made enforceable as support by the Director, Family Responsibility Office. However, I will receive the parties’ submissions on that point as well before making a final determination.

154If the parties are unable to agree on the issue of costs, they may file brief written submissions with the court, of no more than five (5) double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the following schedule:

a. the applicant shall deliver her submissions within twenty (20) days following the release of these reasons;

b. the respondent shall deliver his submissions within twenty (20) days following service of the applicant’s submissions;

c. the applicant shall deliver her reply submissions, if any, which shall be limited to no more than three (3) double-spaced pages, within five (5) days following service of the respondent’s submissions;

d. if either party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue of costs, and the court will proceed to make its determination in the absence of their input.

Footnotes

1. 1Further, the parties should know that because there was more than one instance where there was some disagreement between Mr. Skaljac, as a self-represented litigant, and Ms. Nickleson, represented by legal counsel, as to what evidence had been given as previous testimony at trial, in the course of my deliberations, I reviewed the digital recordings of the entire proceedings at trial.
2. 2Children’s Law Reform Act, R.S.O. 1990, c. C.12.
3. 3Trial Record, Tab 7, Psychological Custody & Access Assessment of Dr. Rueben L. Schnayer dated January 23, 2007 (“Schnayer Assessment”), at p. 19.
4. 4Federal Child Support Guidelines, SOR/97-175.
5. 5In response to my request, on the last day of trial the parties submitted an agreed statement of facts concerning some basic events in the chronology. See “Joint Timeline” (undated), submitted October 25, 2017, being Exhibit No. 15 at trial.
6. 6Trial Record, Tab 13, Statement of Arrears dated March 13, 2017, issued by Ministry of Community and Social Services, Family Responsibility Office, pp. 4-5.
7. 7See the letter dated June 29, 2017, from Bridging Family Conflict Mediation and Information Services to Mr. Skaljac, being Exhibit No. 10 at trial.
8. 8Wallbridge v. Brunning, 2018 ONCA 363, at para. 18.
9. 9Trial Record, Tab 8, Clinical Investigation Report of Mr. Mark Donlon dated December 19, 2016 (“Donlon Report”).
10. 10Ibid., at p. 4.
11. 11Ibid., at p. 18.
12. 12Child Support Analysis Brief of the Applicant, being Exhibit No. 1 at trial, Tab 3, 2010 Tax Return Summary for Mike Skaljac, at p. 1.
13. 13Ibid., Tab 4, 2011 Tax Return Summary for Mike Skaljac, at p. 1.
14. 14Ibid., Tab 5, 2012 Assessment for Mike Skaljac, at p. 1.
15. 15Ibid., Tab 6, 2013 Assessment for Mike Skaljac, at p. 1.
16. 16Ibid., Tab 8, 2015 Assessment for Mike Skaljac, at p. 1.
17. 17Ibid., Tab 9, 2016 Assessment for Mike Skaljac, at p. 1.
18. 18Statement of Earning for M. Skaljac dated October 18, 2017, from Public Services and Procurement Canada, being Exhibit No. 13 at trial.
19. 19Access Records Brief of the Applicant, being Exhibit 2-D at trial, Tab 10, at p. 6, text message dated May 8, 2013, from Ms. Skaljac to Ms. Nickleson.
20. 20Ibid., Tab 7-B, at p. 2, Daily Access Logs prepared by Ms. Nickleson.
21. 21Trial Record, Tab 7, Schnayer Assessment, at p. 18.
22. 22Ibid., Tab 8, Donlon Report, at pp. 15, and 17-18.
23. 23Family Law Rules, O. Reg. 114/99.
24. 24Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, at para. 37.
25. 25Froom v. Froom, 2005 3362 (ON CA), [2005] O.J. No. 507, 11 R.F.L. (6th) 254 (Ont. C.A.). But see the critical commentary of Prof. James G. McLeod, “Froom v. Froom: Annotation,” 2005 CarswellOnt 545.
26. 26Maultsaid v. Blair, 2009 BCCA 102, 78 R.F.L. (6th) 45 (B.C.C.A.), at para. 25.
27. 27L. (L.) v. C. (M.), 2013 ONSC 1801, 28 R.F.L. (7th) 217 (S.C.J.), at para. 37.
28. 28Scott v. Chenier, 2015 ONSC 7866 (S.C.J.), at para. 41, citing L. (L.) v. C. (M.), at paras. 23-39.
29. 29Gauthier v. Hart, 2011 ONSC 815, 100 R.F.L. (6th) 178 (S.C.J.), at para. 24. See also L.(L.) v. C.(M.), at para. 31.
30. 30See, for example, Thompson v. Thompson, 2013 ONSC 5500 (S.C.J.), at para. 40; L. (L.) v. C. (M.), at para. 22; Gauthier v. Hart, at para. 61; and Meloche v. Kales (1997), 1997 12292 (ON SC), 35 O.R. (3d) 688, 35 R.F.L. (4th) 297 (Ont. Gen. Div.), at 694-695 (cited to O.R.).
31. 31Chickee v. Chickee, [2000] O.J. No. 2769 (S.C.J., Master), at paras. 4-6.
32. 32Ibid., at para. 6.
33. 33Gauthier v. Hart, at para. 65-76.
34. 34Thompson v. Thompson, at para. 40.
35. 35Gauthier v. Hart, at para. 76.
36. 36Ibid., at paras. 74-75.
37. 37Respondent’s Trial Brief of Documents, being Exhibit No. 7 at trial, Tab 13, Access Summary, and Tab 11, Monthly calendars showing access visits.
38. 38L. (L.) v. C. (M.), at para. 34.
39. 39Gauthier v. Hart, at paras. 25-29.
40. 40Ibid., at para. 33.
41. 41Maultsaid v. Blair, at paras. 13 and 30.
42. 42Gauthier v. Hart, at para. 34.
43. 43Reynolds v. Higuchi, 2016 ONSC 1997 (S.C.J.), at para. 8.
44. 44See, for example, Senchuck v. Senchuck, 2016 SKCA 167, 94 R.F.L. (7th) 37 (Sask. C.A.), at paras. 12-14.
45. 45The Access Record Diary was marked as Exhibit No. 2-A at trial.
46. 46See Access Records Brief of the Applicant, being Exhibit 2-D at trial, Tab 7-B, 2014 Access Records: Daily Access Log (Word document).
47. 47See Access Records Brief of the Applicant, being Exhibit 2-D at trial, Tab 7-A, 2014 Access Records: Summary of Overnights with each of the Applicant and the Respondent.
48. 48Ms. Nickleson also produced a summary of total overnight access visits with the respondent for the years 2005, 2006, and 2007; a summary of cancelled access days with the respondent for those same years; daily access logs for 2005; daily access logs for 2010; daily access logs for 2012; etc. However, as these records address years in question that are not in issue for the purposes of s. 9 of the Guidelines, I need not deal with them.
49. 49Respondent’s Trial Brief of Documents, being Exhibit No. 7 at trial, Tab 10, Print-out of “Display Time Sheet Data” from January 5, 2012, to March 1, 2017.
50. 50Mr. Skaljac’s Day-Timer calendar for 2013 was marked as Exhibit No. 4 at trial; the calendar for 2014 was marked as Exhibit No. 5; and the calendar for 2015 was marked as Exhibit No. 6. For ease of reference, Mr. Skaljac then made a photocopy of each of the Day-Timer calendars and included those copies in his Respondent’s Trial Brief of Documents, being Exhibit No. 7. The copy of the 2013 Day-Timer (Exhibit No. 4) is found at Tab 7 of Exhibit 7; the copy of the 2014 Day-Timer (Exhibit No. 5) is found at Tab 8; and the copy of the 2015 Day-Timer (Exhibit No. 6) is found at Tab 9.
51. 51Access Records Brief of the Applicant, being Exhibit 2-D at trial, Tab 6-A, 2013 Access Records Summary of June to December 2013.
52. 52Access Records Brief of the Applicant, being Exhibit 2-D at trial, Tab 8-A, 2015 Access Records Summary of June to December 2015.
53. 53Access Records Brief of the Applicant, being Exhibit 2-D at trial, Tab 9-A, 2016 Access Records Summary of January to September 2016.
54. 54Trial Record, Tab 9, Transcript of the Questioning of Mike Skaljac held April 28, 2016, p. 33, QQ. 186-187.
55. 55To be clear, the calendars that Mr. Skaljac asserts were maintained contemporaneously are Exhibit Nos. 4, 5, and 6. Mr. Skaljac admits that the summary calendars (Tabs 11 and 12 of Exhibit No. 7) were made for the purposes of the litigation and were produced in June 2017.