Court File and Parties

COURT FILE NO.: FC-14-2239 DATE: 2018/10/30 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Karissa Grenier Applicant – and – Marc Imbeault Respondent

COUNSEL: Alice Weatherston and Emma Costain, for the Applicant Self-represented, for the Respondent

HEARD: September, 25, 26, 27, 2018 and October 1, 2, 3, 4 and 9, 2018 (at Ottawa)

REASONS FOR JUDGMENT

SHELSTON J.

OVERVIEW

[1] The issues for this trial are the custody and access to the two children of the relationship, namely Mathieu, born September 9, 2009, and Alexandre, born December 19, 2011, retroactive and prospective table child support and section 7 expenses, extended health coverage, security for the child support and costs.

[2] Since separation, the children have resided in the primary care of the applicant and the respondent has had access since September 2014, every second weekend from Friday at 5:00 p.m. to Sunday at 7:00 p.m. and later at 6:30 p.m.

Position of the parties

Custody

[3] The applicant seeks sole custody of the two children because she has been the main caregiver of the children since birth and the primary parent for the last five years, she provides a stable and loving home, she provides consistency and stability to the eldest child Mathieu (who has special needs), because the respondent refuses to administer the Ritalin to Mathieu while in his care and that changing the children’s primary residence would be a significant and fundamental change in the children’s home and school environment, which would adversely affect the children.

[4] The respondent submits that the applicant has engaged in conduct amounting to parent alienation, brainwashing of the children, that the applicant was and is unable to see the difficulties that the boys have, that the children’s behavioural issues are a result of the applicant’s inaction, that the children are not properly cared for by the applicant, and that the respondent is best able to care for the children’s needs. Further, the respondent submits that the applicant suffers from anxiety and some type of mental health issue and that she is unable or unwilling to seek mental health assistance.

[5] The parties agree that access to the noncustodial parent should be every other weekend from Friday at 5:00 p.m. until Sunday at 6:30 p.m. The parties agree to certain sharing of holidays and disagree on other holidays further described in these reasons for judgment.

Child support

[6] The applicant seeks table child support for the children retroactive to the date of separation as well as an order that the respondent share in the section 7 expenses for the children, specifically daycare and hockey retroactive to September 1, 2014. In addition, the applicant seeks an order that the respondent contribute to the monthly cost for Alexandre’s orthodontic treatment. The applicant seeks to impute an income of $30,000 to the respondent for the tax year 2017.

[7] On a prospective basis, the respondent seeks table child support for the children if he is granted primary residence of the children. The respondent agrees that child support should be readjusted based on his actual income as of 2014 but denies that an income of $30,000 should be imputed to him in the tax year 2017 and that his line 150 income of $9,722.65 should be used in the calculation of the child support.

[8] With respect to section 7 expenses, the respondent indicates he is not in a position to pay, cannot afford to pay, was never consulted, does not live in the same area as the applicant and that it was not in the best interests of the children to spend 12 hours each weekend at hockey rinks.

[9] With respect to the child care expenses, the respondent submits that the maternal grandmother could have taken care of the children as of September 2016 and such expenses should not be shared. On the issue of the orthodontic expenses, the respondent indicates he does not have such coverage through his extended benefits from his employment and does not have the ability to contribute to this expense.

Extended health coverage, security for child support and costs

[10] The applicant seeks an order that the respondent maintain the children as the beneficiaries of an extended health plan and seeks security for support by way of life insurance.

[11] The respondent submits that he does not currently have a life insurance policy and that his extended health care through work does not cover orthodontic expenses. He is prepared to designate the children as the beneficiaries of his extended health care through his employment.

[12] Both parties seek costs.

FACTUAL FINDINGS

[13] At the date of the trial, the applicant is 37 years of age. She graduated high school in 1999 in Windsor, Ontario and moved to Ottawa in September 1999 to attend college. In January 2000, the applicant returned to Windsor where she worked odd jobs, continued her education by graduating with a diploma in Hotel and Restaurant Management in June 2003. She worked in various jobs until March 2008 when she moved to Ottawa. Between 2008 and January 2018, the applicant worked at a hotel and at a retirement home.

[14] Since March 2018, the applicant had been working at Verdun Windows and Doors as a full-time employee earning an annual salary of $42,500. However, during this trial, the applicant received an email on October 2, 2018, advising her that she was terminated from her employment effective October 9, 2018, because she allegedly took a two-week leave to attend this trial without approval of her employers. She denies that allegation and is retaining counsel to address the termination.

[15] At the date of trial, the respondent is 47 years of age. The respondent completed high school in 1990 and worked various jobs until 2001 when he completed a diploma in Hotel Restaurant Management at a college in Ottawa. He worked in a variety of jobs after college until he began to work for the federal government. He worked in various positions and was unemployed for a period of time in 2009. He was employed with Public Works from 2010 until May 12, 2016, when his contract ended. He collected employment insurance benefits until April 2017 and then received benefits from Ontario Works until December 2017. He did not work until December 17/18, 2017, when he started to work for the Corps of Commissionaires where he remains employed.

[16] The parties started dating in May 2008 and began living together in November 2008. The parties never married.

[17] Throughout the relationship, the respondent worked except for a short period of unemployment in 2009. From February 2011 to separation, the respondent worked from 6:30 a.m. to 2:30 p.m. The applicant stayed home for periods of time after the birth of the children and worked, at times, from 4 p.m. to midnight.

[18] The parties separated on July 20, 2013, with the applicant remaining with the children in the matrimonial home in the Barrhaven area and the respondent moving in with his mother near Beechwood Avenue, in Ottawa. In late September 2014, the applicant moved with her children and her parents to her current residence, being a three-bedroom home. The applicant is currently renovating the basement to make a bedroom for her parents so that each child may have their own separate bedroom.

[19] From July 2013 until December 2013, the respondent had sporadic access. The applicant would bring the children to visit the respondent at work. At times, there were issues with the respondent’s access. The respondent wanted to see the children on his birthday on October 29, 2013, but the applicant denied it because it was her father’s birthday. The respondent sought Mathieu a few days after his birthday and was denied access to Alexandre on his birthday because the applicant had family members from out of town. The respondent saw the child for a few hours while they were at a hockey game.

[20] The parties attempted mediation in November/December 2013 without success. The respondent requested time for access during Christmas, which was denied. He saw the children on January 1 from the morning until 9:30 p.m.

[21] By January 2014, the respondent started to ask to see the children more and started to pay child support. There was no set schedule and the access was ad hoc.

[22] On May 8, 2014, the parties agreed to a without prejudice parenting schedule that permitted the respondent to see the children on a schedule that moved from a day visit to an overnight visit, starting Saturday morning until Sunday night, two days from July 4-6, two days from July 18-20, three days from August 1-4 and three days from August 29 -31, 2014.

[23] Based on that without prejudice agreement, starting September 13, 2014, the respondent would have access from Friday evening to Sunday evening at 7 p.m. and the respondent would have the children from December 24 in the morning to December 25 at noon and December 31 to January 3 at 7 p.m. The respondent would attend at the applicant’s home to pick up and return the children.

[24] In July 2014, the parties agreed to put the matrimonial home up for sale. The property was scheduled to close on September 30, 2014. On September 28, 2014, an incident occurred where the respondent refused to return the children to the applicant because the matrimonial home was selling and the applicant had not provided the respondent with her new address where she would be living with the children. The respondent testified that he feared that she was leaving the jurisdiction with the children and potentially returning to Windsor, Ontario. After the intervention of counsel, the children were returned to the applicant’s care on Monday at 5:30 p.m.

[25] The applicant commenced proceedings in October 2, 2014, seeking spousal support, child support, custody, a claim for unjust enrichment towards the respondent’s pension benefits, an order reconciling mortgage payments and other claims for relief including costs.

[26] In an Answer and Claim signed on November 16, 2014, the respondent claimed custody, child support, an equal division of the family debts and costs.

[27] The parties proceeded to a case conference where, with the consent of the parties, Master Roger (as he then was) granted various temporary relief including the following:

(a) the respondent to pay the applicant $910 per month in child support on a without prejudice basis commencing January 1, 2015; (b) the respondent to pay to the applicant $745 per month for his share of the daycare expenses on a without prejudice basis commencing January 1, 2015; (c) that neither party shall incur a special or extraordinary expense without the other’s written consent and such consent not to be unreasonably withheld; (d) granted disclosure orders; (e) granted the parties leave to attend questioning; (f) granted the respondent access during the Christmas holidays; and (g) costs of the conference were reserved.

[28] During the 2015 March break, for the second time, the respondent refused to return the children. There had been no agreement as to the sharing of the March break and the respondent was to return the children on Sunday night. He unilaterally retained the children until Wednesday, being, according to his view, halfway through the March break holiday.

[29] On July 2, 2015, Justice Maranger ordered the parties to obtain a custody/access assessment with the respondent to pay the applicant’s share on a without prejudice basis and ordered that the respondent have three non-consecutive weeks of summer access, being one week in July and two weeks in August.

[30] In May 2016, the respondent was terminated from his employment. The access schedule changed after the respondent had stopped working. The applicant agreed to pick the children up at the respondent’s home at 6:30 p.m. so that they could be home by 7 p.m.

[31] The respondent filed for bankruptcy on May 17, 2017, resulting in the property claims being stayed in this proceeding.

[32] On June 26, 2017, Justice Audet granted the respondent summer access, being every alternate week commencing on Friday, June 30, 2017, and terminating on August 27, 2017, and ordered the parties to provide specific disclosure within 15 days of her order. The respondent has had access in the summer of 2017 and 2018.

The children

[33] Mathieu started kindergarten in September 2013 at Pierre Elliott elementary school near the matrimonial home. He continued attending that school until March 20, 2017, when he was transferred to a school for children with behavioural problems known as Le Transit. He will be completing his two-year attendance at that school in March 2019 and will be returning to his elementary school.

[34] The youngest child is currently in grade 2 at Pierre Elliott elementary school.

[35] Problems have arisen with respect to Mathieu. While in attendance at Pierre Elliott elementary school, the child started exhibiting dysfunctional behaviour, such as leaving the class, hitting a teacher, not working and being easily distracted. These behavioural issues started when he started school. By October 2016, the situation was reaching a crisis level, including the following:

(a) a minor incident occurred on October 26, 2016, when the child started punching other students and once approached by the teacher, left the class; (b) a minor incident occurred on October 31, 2016, when the child destroyed a Halloween decoration; (c) a major incident occurred on November 2, 2016, when the child refused to complete a task during which time he circled the class disturbing other children; (d) a major incident occurred on December 8, 2016, when the child refused to follow instructions and started to run out of the class. The child started to hit other children on the head with a cushion, kicked another child in the leg, emptied three large garbage cans. The applicant was called and attended with her mother. They removed the child but not before he kicked the assistant principal two times; and (e) the child was suspended on two separate occasions. The first time was for one day it on November 14, 2016 and a three day suspension in December 2016.

[36] As result of the behaviour of the child, the school recommended that he be kept home until January 2017. The parents met with the school authorities to ascertain a plan to deal with the child’s challenges. The parties agreed that there would be an assessment by the school board.

[37] In her report dated February 9, 2017, entitled Rapport d’évaluation psychologique, the school psychologist, Annie Truchon, indicated that at times the child would become out of control, try to leave the school and would hit other students. As part of her report, the psychologist met with the respondent, the applicant, and the school authorities. The parents completed a questionnaire and the psychologist conducted a series of tests. Further, the psychologist observed the child at school.

[38] Ms. Truchon concluded at page 10 and 11 of her report, the following:

Le profil de Mathieu ne serait pas complet s’il ne faisait pas état des difficultés comportementales que celui-ci rencontre. En effet, Mathieu collabore peu aux demandes qui lui sont faites. Il a fait de multiples crises d’une intensité importante à l’école, à une fréquence supérieure à deux fois par semaine. Ce type de difficultés a été observé depuis l’an dernier, bien qu’elles ont augmenté en intensité depuis l’automne. Il a besoin d’être accompagné tous les jours par une éducatrice et malgré cette aide, il n’arrive pas toujours à maintenir sa collaboration et à finir sa journée sans une crise. À la maison, il présente également des difficultés comportementales quotidiennes qui rendent ses rapports familiaux difficiles. Sur la base de toutes ces observations, nous sommes en mesure de conclure que le profil de Mathieu correspond aux critères d’un diagnostic de Trouble oppositionnel avec provocation de sévérité moyenne.

Il a également été observé de la part du père, de la mère, de l’enseignante et en évaluation que Mathieu a de la difficulté à demeurer attentif à une tâche. Il décroche souvent au milieu d’une tâche, est distrait, va être autre chose, a de la difficulté à terminer ce qu’il entreprend. Étant donné que ces observations sont faites dans tous ses milieux de vie, il apparaît que Mathieu présente tous les critères d’un Trouble déficitaire de l’attention de type inattention prédominante.

[39] The psychologist made a series of recommendations to address the child’s emotional reaction to circumstances. The three main recommendations were:

(a) to minimize the discussions with the child about the litigation regarding custody and that it would be preferable that the parents not pass information between themselves through the child; (b) consult a doctor to review the psychological report and to possibly prescribe medication to the child; and (c) consider placing the child in a specialized class to deal with his behavioural problems.

[40] As a result of this report, the child was registered in the specialized school, Le Transit.

[41] Since March 2017, the child has been prescribed medication by the child’s family doctor, Dr. Roy. He is currently prescribed 50 mg of Biphentin and 10 mg of Ritalin. In addition, the parents met regularly with Dr. Roy to review the medication and to discuss possible options.

[42] I accept the evidence of the applicant that the medication helps the child focus and the only noticeable side effect is a loss of appetite. Unfortunately, the respondent has admitted that he does not provide the child with his Ritalin at times while the child is in his care because, according to the respondent, the child does not exhibit any dysfunctional behaviour or any outbursts while in his care.

[43] The respondent’s position is supported by his mother, aunt and girlfriend who all testified that Mathieu does not have any outbursts or dysfunctional behaviour while in the care of the respondent.

[44] This is contrasted by the evidence of the applicant, the maternal grandmother, the assessor and the school authorities, including the report of the school psychologist, all of whom describe and identify circumstances that can only be described as dysfunctional behaviour. The applicant has followed the advice of professionals and has implemented different strategies, such as having Mathieu breathe slowly when a situation arises, to move away from the situation and to think before reacting. The applicant herself undertakes breathing exercises and focuses on staying calm. She has taken six courses in the period of November 2017 to May 2018 to identify the child’s issues and how to address his issues. The applicant has bought books to review with the child and is part of the Facebook group for children and adults with attention deficit disorders. The applicant is interacting with the school to deal with Mathieu’s issues and, recently, Alexandre’s challenges, who has become more defiant and defensive recently. The applicant testified that she spoke to the teacher who advised the school would start a group therapy session in 2019 for a smaller group of students to deal with Alexandre’s behaviour.

[45] I accept the evidence of the applicant that the child needs routine, stability and consistency but also must be encouraged to use the strategies for him to deal with circumstances as they arise.

[46] The current schedule for the children while in the care of the applicant is that they wake up, eat, brush their teeth and are ready for school. Mathieu is picked up by taxi at 7:50 a.m. to be transported to his school and he returns between 3 p.m. and 3:10 p.m. Alexandre goes to the bus stop with his maternal grandfather, when the applicant goes to work, and returns at approximately 4:30 p.m. Until she was terminated, the applicant returned home at approximately 5:30 p.m. Due to the applicant’s work schedule, her father would escort Alexandre to the bus and both maternal grandparents would be home when the boys returned from school. On Wednesdays, Mathieu finishes school at 12:30 p.m. and the maternal grandmother picks him up and goes to a restaurant for lunch and is home by 3:30 p.m. On weekends, the boys are up between 7 a.m. and 9 a.m. They attend hockey or partake in activities, such as biking, festivals or walking on trails.

[47] With respect to discipline, the applicant times out a child or sends the child to his room and once the child is calm, they discuss what issue caused the child’s stress and how to avoid future disputes. If there is a serious argument, the applicant will take away an activity, such as going to museums, going to the movies or some previously planned activity. The applicant does not employ physical discipline.

Access exchange problems

[48] The applicant testified that she feels bullied and is extremely anxious with any interaction with the respondent and especially when the respondent attends to retrieve the children for the commencement of his access. The respondent testified that he is 6’3 foot and weighs over 300 pounds. The respondent denies the applicant’s allegations.

[49] I accept the evidence of the applicant that she suffers from anxiety when she has to interact with the respondent. Based on my observation of the parties during this trial, the applicant testified in a very quiet, low-level voice. I observed her rarely lifting her head during the testimony of other witnesses. On the other hand, the respondent was confident, direct and forceful in his testimony.

[50] To be able to reduce the tension with the pickups, the applicant employed various strategies, such as having the children ready and playing outside prior to the pickup. Despite these attempts, I accept the evidence of the applicant that, at times, the respondent stands at the end of the driveway and crosses his arms and looks directly at the applicant until the children are sent to his care. When confronted with the allegation that the respondent raises his voice against the applicant, he testified that he did not raise his voice because if he did, his voice could carry two kilometers. I do not find his evidence credible.

[51] The respondent has not been helpful in his actions at times when picking up the children. On a weekend in October 2014, when Mathieu did not want to go and was arguing with the applicant, rather than assist the applicant, the respondent videotaped the interaction. He did not attempt to calm his own child.

[52] The evidence of the applicant is corroborated by her mother who is present for approximately 90% of all the exchanges. She confirms that there is no communication between the parties and that if there was a problem regarding the children going to access, the respondent would cross his arms or videotape the interaction but never offered to help calm the children. Further, the maternal grandmother confirms that there is nonverbal communication from the respondent that creates tension.

[53] It is simply not credible that the child, Mathieu, has no outbursts in the care of the respondent. I note that the witnesses presented by the respondent are his mother, aunt and girlfriend. All three of those witnesses are not with the father all the time with the child. I accept that based on their observations they have not seen any such outbursts.

[54] However, I accept the evidence of the applicant and her mother that the child requires a very structured environment, emotional support and use of his medication on a daily basis to allow him to succeed. The applicant employs a chart for both children to follow from the moment they get up until the time to go to bed. This includes specific times to go to the bathroom, eat, do their homework, and to enjoy downtime. This strategy employed by the applicant is in keeping with the recommendations of the child psychologist and the school authorities. I accept the evidence of the applicant that both children are following this schedule.

[55] I accept the evidence of the applicant and her mother that Mathieu’s outburst do not occur every day and they are happening less and less because he is now applying strategies that he is learning at his current school.

Assessment report

[56] Pursuant to the order of Justice Maranger dated July 2, 2015, the parties retained Ms. Valerie Morinville to complete a parenting plan assessment report. Ms. Morinville testified that she had conducted 130 assessments since 2006. She was qualified as an expert during this trial to provide an opinion on the parenting plan for these children. The assessor conducted interviews between July 6, 2016, and December 2016, with the children’s last visit being on November 9, 2016. The assessor also reviewed a variety of reports, had collateral contacts and reviewed the pleadings.

[57] The assessor found that the concerns about Mathieu’s behaviour and the respondent’s ability to care for his son were major issues in this report. The assessor admitted she had had no information about the family for the past two years and was unaware of the psychological report of the school psychologist dated February 9, 2017. In her report, she recommended that the child should be followed by professionals.

[58] With respect to the respondent, she recommended that he obtain individual therapy because she found that he was very angry, would not speak to the applicant, had a very rigid way of thinking, saw the world in black/white terms and his plan for the children was not appropriate.

[59] The assessor indicated that the respondent lacked insight because he failed to appreciate the possible negative emotional reaction to the children being moved from the applicant’s care to the respondent’s care.

[60] The assessor also noted the following:

(a) the applicant was not making decisions for herself as she was influenced by her own mother; (b) both parents were responsible for the lack of co-parenting as both are angry, anxious and distrustful; (c) she found the respondent to be angry and authoritative and the applicant to be anxious and avoidant; (d) she found the respondent’s approach is authoritative and at times punitive, rigid and does not allow the child a chance to explore and feel secure; (e) the children were very aware that the parents did not get along; (f) she recommended joint custody regarding major decisions in the hope that the parties were able to communicate effectively. During her testimony she stated that if joint custody is not working, another situation has to be considered. She had hoped that the parents would get the help they needed; and (g) the children are very attached to the applicant, they have a good bond and the children felt secure.

[61] In cross-examination, the assessor did not know if the respondent had raised the issue of parent alienation and brainwashing to her, as she did not review her file before testifying. She admitted that the applicant told her that the respondent had retained the children in September 2014 in breach of a court order. The evidence is there was no court order in September 2014.

[62] In her assessment report dated January 26, 2017, she made many recommendations including:

(a) the parties are to continue to have joint custody of the children; (b) the children are to continue to reside with the applicant; (c) the children are to spend time with the respondent, being every second weekend from Friday after school, or 4:30 p.m., until Sunday at 6:30 p.m. and every second weekend from after school, or 4:30 p.m., until Wednesday and return to school at 8.a.m., providing that the respondent is able to drive the children to and from their current school. This would occur in the week that the children are not spending the weekend with their father; (d) that Mathieu be evaluated by an independent psychologist to determine if he has any particular learning needs or difficulties and to determine how to best help this child manage his emotions; (e) the parents are to make an application to the Centre Psychosocial (CPS) to work with Mathieu and parenting concerns. They are to work cooperatively with CPS and with each other on the parenting issues raised; (f) the children are to participate in a group for children of separation and divorce; (g) the applicant and respondent are to participate in the New Ways for Families program; (h) the respondent is to participate in individual therapy to further explore the impact of his childhood on his way of thinking, problem-solving and approach to co-parenting; (i) the applicant is to participate in individual therapy to strengthen her coping strategies and determine if any anxiety is a concern; (j) the applicant is to participate in a parenting class on reinforcing parenting skills for Mathieu; (k) the respondent is to participate in a parenting class on age-appropriate discipline and expectations; (l) the parents are to communicate via email or text message about the children; and (m) the applicant and the respondent are to engage the services of a parenting coordinator rather than return to court for each dispute.

[63] After the assessment was completed, Mathieu was assessed by a school psychologist who completed her report dated February 9, 2017. The applicant worked with CPS and undertook courses in late 2017 and early 2018. The respondent did not follow any of the recommendations regarding him. Many recommendations were not implemented including engaging the services of a parenting coordinator.

CUSTODY AND ACCESS

[64] Subsection 24 (2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”), provides as follows:

Best interests of child

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

(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application.

[65] The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. Further, the only consideration is the best interest of the children in any custody decision (Gordon v. Goertz).

[66] No one factor in the statutory definition of a child’s best interests is given statutory preeminence (Wilson v. Wilson, 2015 ONSC 479).

Analysis on custody

[67] The parent with custody has the right to make decisions regarding the children’s education, medical decisions, activities and residence.

[68] I have considered the assessment report which, while dated, as the last interviews were in November 2016, I still found useful as an assessment of where the parties and the children were at that time. Further the report provided comments on the parents’ needs and abilities that I have considered based on the evidence received during this trial.

[69] In this case, the assessment report recommends joint custody. The respondent’s position in his pleadings was that, in the alternative, the parties would have joint custody. During submissions, the respondent’s position is that he would have sole custody of the children. The applicant seeks sole custody.

[70] The parties do not communicate except by email. The applicant has provided the respondent with information about doctors’ appointments, hockey schedules, soccer schedules and updates on medical appointments.

[71] The applicant is intimidated by the respondent and is very anxious with any contact with him. The respondent does not respect the applicant and feels that she is an incompetent mother and that she has embarked on a course of conduct to alienate the children from him.

[72] Upon a review of the email exchange, the respondent never refers to the applicant except by “Mrs. Grenier”. The applicant uses the respondent’s first name of “Marc”. In the email exchange between the parties, the tenor from the respondent is rude, accusatory, belittling and authoritative. The applicant’s emails are generally respectful.

[73] In this case, joint custody is not an option. The parties cannot communicate. They have not shown a history of making decisions regarding the children after separation on a joint basis. Further, the respondent in cross-examination admitted that he cannot make any decision with the applicant regarding the children. The parties’ views on childrearing are completely different and there is no evidence that they can make decisions in the best interests of their children together.

[74] On the issue of sole custody, I find that it is in the best interests of the children that the applicant shall be granted sole custody. I do based on the following findings:

(a) the children have been in the care of the applicant for over five years and are bonded with her; (b) the applicant has been the parent who has since separation arranged the medical appointments, dental appointments, meetings with the school board and arranged for the children’s involvement in extracurricular activities; (c) since separation, the applicant has created an environment at her home to provide stability and consistency for the children. The applicant has completed a series of courses on how to address her own needs as well as the needs of first son, Mathieu. The applicant has been adhering to the prescription of medication provided by the child’s doctor, Dr. Roy; (d) Mathieu is doing well at his current school. At his current school, he has been taught strategies on how to deal with his various issues, including stress and anger. At home, the applicant has also employed strategies in conjunction with the school and through her own efforts by the following courses to assist the child; (e) Mathieu’s behaviour is significantly better since he has been attending the new school as corroborated by the applicant and the maternal grandmother; (f) the respondent denies that Mathieu has any behavioural problems in his care. I find this simply not credible considering the observations of Ms. Morinville and the school psychologist, the records from the school and the evidence of the applicant and her mother; (g) the applicant intends to continue to administer the medication prescribed by the family doctor to the child. The respondent denies the conclusions of the school psychologist that Mathieu suffers from attention deficit disorder and oppositional defiance disorder. In addition, he denies that the child has any behavioural problems in his care and does not believe that the child should be medicated. I find that this failure of the respondent to recognize his son’s challenges to be very troubling and demonstrates a lack of insight into his child’s needs; (h) the applicant believes that the children should be involved in extracurricular activities such as hockey and soccer. Despite the respondent indicating that he played team sports as a child, he does not believe that the children should play hockey if they are misbehaving. The respondent’s view is that hockey is a privilege and not a right, and if the children misbehave, they should not be rewarded by playing sports. This attitude of the respondent shows a serious lack of insight into the best interests of his children when the evidence is that both children love to play hockey. I find that the respondent’s views on the children’s involvement in hockey and soccer are contrary to the children’s best interests; and (i) I do not find that the respondent has acted in the best interests of his children. The respondent’s conduct, both prior and subsequent to the assessment of Ms. Morinville, confirmed her findings that the respondent is punitive, rigid and authoritative. I find that the respondent’s testimony during this trial supports such a conclusion.

[75] Further, the respondent has made extremely serious allegations against the applicant, such as that she is guilty of parental alienation and brainwashing the children. I did not find any evidence to support such a finding. To the contrary, I find that the applicant, despite being anxious and intimidated by the respondent, has offered for him to have extra time with the children during the week, to attend their sporting events, to advise him of doctor appointments and to communicate with him in a respectful manner in their email exchanges.

[76] The respondent has acted selfishly and has not conducted himself as a parent who considers the best interests of his own children. Examples are as follows:

(a) that he unilaterally withheld the children the weekend of September 28, 2014; (b) that he unilaterally withheld the children for part of the March break in 2015; (c) that he refused the applicant’s offer to have midweek access with his children from after school to 7:30 p.m.; (d) that he was aware that the children play soccer every Wednesday from 6:30 p.m. to 7:30 p.m. from late spring until the end of August. He has admitted that he has never attended any soccer games played by his children despite being provided with their schedule by the applicant and encouraged to attend by her as described in an email from the applicant to the respondent on June 1, 2018; (e) that he was aware that Mathieu has been playing hockey since September 2014 and Alexandre has been playing hockey since September 2016. He admitted that he does not take the children to any hockey games on his access time except maybe to 3 or 4 games since they both started playing hockey; (f) that he does not give Mathieu his prescribed Ritalin, at times, while in his care; (g) that he denies the diagnosis by the school psychologist made in February 2017 that Mathieu suffers from attention deficit disorder and oppositional defiance disorder; (h) that he has discussed the parenting issues with his children; (i) that he contacted the Children’s Aid Society on two separate occasions alleging the applicant physically struck the children. On both occasions the Children’s Aid Society conducted an investigation, found no evidence to support the allegation and closed their file; (j) on a pickup weekend in 2016, the respondent, with the children present, verbally threatened to have the applicant and her parents jailed for failing to give him the school agenda; (k) the respondent insisted that the applicant drive to the respondent’s home to deliver a renewed prescription for the child Mathieu while on the respondent’s weekend because he refused to attend at the pharmacy; and (l) in August 2015, the respondent, without the consent and knowledge of the applicant, created a Go Fund Me page on the Internet requesting money to help pay for his legal fees related to the custody litigation of his children where he inserted the children’s pictures on the Internet.

[77] The respondent has not been forthright in his testimony with the court. The respondent’s financial statement dated June 3, 2015, indicated that he was paying $950 a month in rent to his mother. In cross-examination, the respondent admitted that he paid his mother whatever he could, that there was a running balance and what he owed his mother in back rent was included in the bankruptcy proceedings in May 2017. In the respondent’s financial statement dated September 26, 2018, he again indicated that he was paying his mother $950 per month in rent but in cross-examination admitted he is not actually paying it.

[78] In conclusion, I find that the applicant has put forward the children’s best interests before her own. She has attempted to involve the respondent in the children’s lives. She follows directions of the school authorities and of the child’s family doctor. On the other hand, the respondent denies that Mathieu has any issues while in his care, that his interaction with the applicant is intimidating, that his correspondence with the applicant is inappropriate and that he does not intend to administer the medication to Mathieu. The actions of the respondent are not in his children’s best interests. I conclude by finding that the best interests of the children require that sole custody and primary residence be granted to the applicant.

Access

[79] I order that the children will be with the respondent every second weekend from Friday at 5 p.m. until Sunday at 6:30 p.m.

[80] Further, I order that the respondent have access to the children on Wednesday at 4:30 p.m. until 7:30 p.m. on the weeks when he does not have weekend access. This will allow the respondent to have time with his children and allow him to prepare a meal for them and return them at a reasonable time during the school week.

[81] I order that the respondent will pick up and return the children for midweek access. For weekend access, the respondent will pick up the children from the applicant’s home and the applicant shall retrieve the children at the end of access.

Holiday schedule

[82] Based on the consent of the parties, I order that the following holiday access schedule overrides the regular schedule in the event of conflict as follows:

Spring break

(a) the children will spend one half of their school spring break with each parent. The exchange will occur on Wednesday at 12 noon and will correspond with each parents’ regular access weekend;

Easter

(b) the children will stay with the respondent on Easter weekend from Thursday night after school, or at 4:30 p.m., until Saturday at 12 noon and with the applicant from Saturday at 12 noon until their return to school on Tuesday morning, in odd numbered years. The children will stay with the applicant from Thursday night after school until Saturday at 12 noon and with the respondent from Saturday at 12 noon until Monday at 6:30 p.m. on even numbered years;

Mother’s Day

(c) if the children are not otherwise with the applicant on Mother’s Day weekend, the children will stay with the applicant from Saturday at 5 p.m. until their return to school on Monday; and

Father’s Day

(d) if the children are not otherwise with the respondent on the Father’s Day weekend, the children will stay with the respondent from Saturday at 5 p.m. until the return to school on Monday.

[83] Based on the consent of the parties, I order the following provisions:

(a) all long weekends, not specified in the holiday schedule, will follow the regular parenting schedule. The return exchange will be moved to return to school (or 8 a.m.) on the Tuesday following the weekend; (b) both parties may make inquiries and be given information by the children’s teachers, school officials, doctors, dentists, health care providers, summer camp counsellors or others involved with the children; (c) both parties may attend all school functions and extracurricular activities regardless of the schedule. With respect to school field trips or classroom events, the parties will alternate attendance. Each of them will have the right to any information or get documentation which a parent of a child would otherwise have a right of access. If, for whatever reason, this clause itself is not sufficient, the parties will cooperate and execute any required authorization or direction necessary to enforce the intent of this clause; (d) if either party plans a vacation with the children, that party will give the other a detailed itinerary at least 14 days before it begins, including the name of any flight carrier and flight times, accommodations, including address and telephone numbers, and details as to how to contact the children during the trip; and (e) if either party plans a vacation outside Canada with the children, the travelling party will provide the other party with a draft letter or travel consent authorizing the children to travel, for the other party to execute and have witness.

[84] The applicant sought an order that the Labour Day weekend and Thanksgiving weekend would be alternated or shared. I deny such requests and find that it is in the children’s best interest that the Labour Day weekend and Thanksgiving weekend follow the regular access schedule.

Christmas school break holiday

[85] The parties do not agree on the Christmas school break. The applicant seeks an order dividing time around Christmas. The respondent seeks alternating weeks so that one parent would have the children at Christmas time and the other parent would have the children at New Year’s Day and such schedule would alternate yearly.

[86] In 2017, the parties split Christmas Day. The children are currently nine-and-a-half and six years of age. The parties currently live approximately 25 minutes apart by car. The children have not been away from their mother on Christmas Day since they were born. I find to institute a schedule where the children do not see their mother or father every year on Christmas Day is not in their best interest. I order that in even numbered years, the children will reside with the respondent from December 23 at 12 noon until December 25 at 1 p.m. The children will reside with the applicant from December 25 of 1 p.m. until December 26 at 12 noon. In odd numbered years, the schedule will reverse. I order that the balance of the Christmas school holiday be shared equally between the parties.

Summer vacation

[87] I find that it is in the best interests of the children that both parents should spend significant amounts of time with their boys in the months of July and August. The parties have followed this schedule in 2017 and 2018 and are keeping with the recommendations of the assessor. Consequently, I order the following:

(a) the children will reside with each parent for three non-consecutive periods of seven consecutive days; (b) the respondent will have the first choice in odd numbered years commencing in 2019 and the applicant will have her choice in even numbered years commencing in 2020. The parent with first choice is to advise the other parent by March 15 of each year of their three-week-long vacation dates. The parent with the second choice is to advise the other parent by March 30 of each year of their three-week-long vacation dates; and (c) the regular schedule applies to the remainder of the school summer break.

Children’s passports

[88] One of the incidents of custody is the right to apply for and retain the children’s passports. I order that the applicant will apply for a Canadian passport for each child and that the respondent will sign the passport application within seven days of being provided such application.

[89] The applicant will retain the children’s passports and provide them to the respondent when required for travel.

Extracurricular activities

[90] The children are currently enrolled in hockey and soccer. The applicant seeks a court order that the respondent ensure the children attend their extracurricular activities while in his care but the respondent does not agree with such a provision.

[91] I find it is in the children’s best interest that they continue to be enrolled in their current extracurricular activities, being hockey and soccer. The children shall not be registered in any other extracurricular activity without the written consent of the respondent which shall not be unreasonably withheld.

[92] Consequently, I order that respondent shall ensure that the children attend their soccer/hockey games and practices while the children are in his care. In the event that the respondent cannot bring one or both children to a practice or game, he shall advise the applicant by email to provide her with the opportunity to bring the children to the game or practice.

Other provisions

[93] I also make the following order:

(a) the parents are to communicate via email or text message about the children. They are to be respectful in all communications to each other and to provide a reply with a 24-hour period. In case of an emergency involving the children, the parents are to call the other parent as soon as feasible; (b) the applicant is to be the school’s first contact and the respondent to be the school’s second contact; and (c) the applicant will continue to make the children’s medical and dental appointments. She is to inform the respondent of all appointments as soon as they are booked. Either parent may attend the appointments but there are to be no conflicts which could make the children uncomfortable.

CHILD SUPPORT

[94] The first step is to determine the parties’ incomes. Pursuant to an agreed statement of facts, the parties agree that the applicant earned the following income:

(a) 2013, $30,138; (b) 2014, $29,706; (c) 2015, $33,985; (d) 2016, $29,960; and (e) 2017, $11,168.

[95] Pursuant to an agreed statement of facts, the parties agree the respondent earned the following income:

(a) 2013, $61,359; (b) 2014, $65,125.64; (c) 2015, $63,792.15; and (d) 2016, $40,006.39.

[96] There is a dispute as to each of the parties’ incomes in 2017 and 2018. In the year 2017, the applicant seeks to impute an income of $30,000 to the respondent while the respondent submits that his income should be based on his line 150 of his income tax return, being $9,722.65.

[97] For the tax year 2018, the parties agree that the respondent’s income be fixed at $30,000. There is a dispute with respect to the applicant’s income in 2018. At the commencement of this trial, the applicant was gainfully employed until she received an email from her employer terminating her employment effective October 9, 2018. The applicant submits that her income in 2018 should be estimated at $30,000 with the proviso that the parties would exchange copies of their income tax returns in 2018 and adjust any payments based on the completed disclosure.

Federal Child Support Guidelines

[98] In this case, the relevant part of Section 19 of the Federal Child Support Guidelines, S.O.R./97-175, as amended (“Guidelines”) is 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;

[99] The Court of Appeal in Drygala v. Pauli (2002), 61 O.R. (3d) 771 (C.A.), at para. 23, sets out 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?

[100] A spouse is intentionally underemployed 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). 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).

[101] 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).

[102] When considering the spouse’s capacity to earn income, the court should consider, among others, the following principles:

(a) 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, 2013 ONSC 5500, at para. 99); and (b) 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. Zapiola, 2013 BCCA 433, 344 B.C.A.C. 133, at para. 37).

[103] The second step of the Drygala test is generally treated as an overall test of reasonableness. In Jackson v. Mayerle, 2016 ONSC 72, at para. 715, the court held that:

715. Parents are required to act responsibly when making financial decisions that may affect the level of child support available. They must not arrange their financial affairs so as to prefer their own interests over those of their children.

[104] 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, as detailed in the Court of Appeal case of D.D. v. H.D., 2015 ONCA 409, 335 O.A.C. 376.

[105] 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, at para. 45).

Imputation of income to the respondent for the year 2017

[106] I find that he respondent’s conduct shows a complete disregard for court orders and for his obligation to provide financial disclosure. For example:

(a) the respondent has failed to produce the applications for employment ordered by Justice Audet on June 26, 2017; (b) the respondent never responded to a series of correspondence sent by counsel for the applicant on May 30, 2018, June 15, 2018, July 19, 2018, August 15, 2018, August 20, 2018, and August 30, 2018, where she requested proof of his pay stubs, a copy of his 2017 income tax return, an updated financial statement and disclosure as to his current circumstances; and (c) the respondent failed to provide the disclosure ordered on November 23, 2017, at the trial management conference before me where I directed the respondent to provide proof of job searches up to 30 days before the trial and ordered him to comply with the disclosure order of Justice Audet, especially regarding his job searches. The respondent admitted he never complied with that order.

[107] The only information received from the respondent was when he testified that he made eight job applications in the period of January to May 2016 and further in January 2017. The respondent was terminated from his employment with the federal government in May 2016 and did not seek full-time employment until June 2017, which eventually resulted in his current position effective December 17/18, 2017.

[108] I draw an adverse inference against the respondent for his failure to respond to the inquiries regarding his efforts to obtain employment and his breach of the orders of Justice Audet, dated June 26, 2017, and the consent order at the trial management conference, dated November 23, 2017.

[109] In March/April 2017, the respondent’s girlfriend moved in with him. She testified that she is employed with the Department of National Defence and has paid for the respondent’s car payment, groceries and shoes and clothing for the children. Further, the respondent’s mother testified that although she charges him $950 for rent, he is currently not paying it. This evidence allows me to conclude that the respondent’s financial circumstances were not as dire as he indicated to the court. Further, despite pleading dire financial circumstances as a reason for not paying the cost award of $750 made at the Trial Management Conference, the respondent’s financial statement indicated that he was spending approximately $200 a month on tobacco and alcohol.

[110] The respondent has a diploma in hotel management from a college in Ottawa, has studied public relations in Business Administration, has taken courses in security through his employment with the federal government, held a senior position in document control in a government department, is fully bilingual and has no medical conditions affecting his ability to work.

[111] The respondent did testify that in 2016 he took an eight-week course at the Montfort Hospital but he does not remember the name of the course. In his file, there is no medical evidence to support a finding that he was medically unable to work during this period of time. Despite being terminated in May 2016, the respondent made no efforts to find employment in the remainder of that year. The applicant does not seek to impute an income to the respondent in 2016 but accepts that support will be based on his income as set out in his federal income tax return, being $40,006.39. Counsel for the applicant indicated that this grace period was reasonable to allow the respondent time to find a job. However, by January 2017, time was up and the respondent made no effort to obtain employment in the face of a legal obligation to support his children.

[112] The respondent testified that he could earn $50,000 a year if he obtained a job with the federal government and that he restricted his job search to two jobs over $50,000 because he believed that low level jobs were not worth his time.

[113] The applicant seeks to impute an income to the respondent of $30,000 on the basis that minimum wage would pay him approximately $29,120 a year.

[114] Considering the respondent’s work experience, his lack of bona fide efforts to find employment, his bilingualism and that he has no medical conditions affecting his ability to work, I find it is fair and reasonable to impute an income to him of $30,000 in the year 2017.

Applicant’s income determination for the year 2018

[115] I accept the applicant’s submission that the applicant’s income in 2018 will be $30,000 based on adding the income that she earned from her former employment of approximately $20,000, $5,000 from her previous employer for the months of January and February 2018 and employment insurance benefits anticipated at an additional $5,000.

[116] I order that in the event that either parties’ employment income changes, they must provide written notice within 10 days of such change and provide documentary evidence within 30 days to support the new income.

Section 7 expenses

[117] The applicant seeks an order that the daycare and hockey expenses incurred for the children be designated as section 7 expenses and requests an order that the respondent contribute to these expenses. The respondent denies that such expenses qualify as section 7 expenses.

[118] The applicable sections of Section 7 of the Guidelines are as follows:

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expense may be estimated, taking into account the necessity of the expense in relation to the child’s best interest in the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family spending pattern prior to separation:

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; f) extraordinary expenses for extracurricular activities.

[119] Pursuant to an agreed statement of facts, the parties agree that the applicant incurred the following expenses:

(a) Child care 2014 – the sum of $2,729.12 and $2,860; 2015 – the sum of $14,682.24; and 2016 – the sum of $8098.78.

(b) Hockey 2014 – Mathieu, the sum of $475; 2015 – Mathieu, the sum of $475; 2016 – Alexandre, the sum of $465; 2016 – Mathieu, the sum of $530; 2017 – Alexandre, the sum of $560; and 2017 – Mathieu, the sum of $560.

Child care

[120] With respect to the child care claimed by the applicant in the year 2014, the parties have agreed that such an expense meets the test of being a section 7 expense.

[121] The respondent’s position is that the expenses incurred in 2015 and 2016 were not necessary and should not be considered section 7 expenses. With respect to the expense in 2015, I find that this expense qualifies as a section 7 expense based on the following considerations:

(a) the expense was necessary for the applicant’s employment; (b) the mother enrolled Mathieu in before-and-after school care as of September 2014 and enrolled Alexandre in full-time daycare at the same time; (c) for the first half of 2015, Mathieu was in before-and-after school care and Alexandre was in full-time daycare; (d) effective September 2015, both boys were in before-and-after school care; (e) the applicant placed the boys in before-and-after care or all-day daycare because she started work at either 7 a.m. or 8 a.m. and finished at either 3 p.m. or 4 p.m. Both of the applicant’s parents were working and could not assist in providing parental relief. The respondent’s mother lived approximately 25 minutes away from the children’s school in Barrhaven and consequently was not a logical alternative for the children to attend a program at their school; and (f) this expense was necessary, reasonable and in the best interest of the children. In 2015, the father earned $63,792.15 and the mother earned $33,985 for a combined income of approximately $97,500.

[122] For the year 2016, the children were in before-and-after school care at their school. The applicant went on medical leave in November 2016 and cancelled the daycare as of December because she was able to care for the children. The maternal grandmother was on leave for part of 2016 but was unable to care for the children, requiring the children to go to the before-and-after school care program. The maternal grandmother was able to assist in the summer thereby reducing the cost significantly for the before-and-after school care program. I find that the before-and-after school care program qualifies as a section 7 expense based on the following factors:

(a) while the applicant was employed through most of 2016, she could not care for the children and required before-and-after school care program for her employment; (b) in 2016, the respondent earned $40,006.39 and the applicant earned $29,906 for a total income of approximately $70,000; and (c) without the before-and-after school care program, the applicant could not have pursued her employment.

Hockey

[123] With respect to hockey, the children were registered in house league hockey with Mathieu starting in September 2014, playing in 2015, and both boys starting in 2016, playing in 2017 and continuing to the current date.

[124] The respondent submits that he did not and does not have the ability to pay for table child support, Alexandre’s share of the child care expenses and hockey. With respect to hockey, he further submits that it is not in the children’s best interests to play hockey.

[125] I reject the submission that the respondent has not been able to financially afford to contribute to the hockey. In the years 2014 to 2016, the respondent had an average income of $56,000 per year but made no contribution to the hockey expenses. Commencing in 2017, the respondent’s income is being set at $30,000. The respondent’s budget indicates that he spends $200 a month on alcohol and tobacco.

[126] I find that such expenses were in the children’s best interests. The expenses were not incurred before separation but children’s expenses evolve with age. I accept the applicant’s evidence that hockey was good for Mathieu’s mental and physical health and that it also applies to Alexandre.

Orthodontic

[127] Alexandre is currently undergoing orthodontic treatment at a monthly cost of $172.50. The applicant and her parents are paying this expense. The applicant seeks an order that the respondent contribute to said expenses.

[128] Currently, the respondent is earning $30,000 in 2018, the applicant is unemployed, the respondent will be paying table child support $459 per month as well as contributing to the hockey and soccer expenses and paying a sum for arrears of child support.

[129] Decisions have to be made in the best interests of the children. However, the parties’ ability to pay these expenses must be taken into consideration. While I believe that the orthodontic expense is in the best interests of Alexandre, the respondent simply has no ability to contribute to that expense.

[130] If there is a change in circumstances then this issue can be revisited at that time.

COMMENCEMENT DATE OF CHILD SUPPORT

[131] The applicant seeks table child support effective August 1, 2013. Proceedings were commenced on October 2, 2014.

[132] The period of August 2013 to September 2014 is the relevant retroactive child support period.

[133] In D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, the Supreme Court directed trial judges to consider certain factors when considering a retroactive order of child support, being:

i. when did the recipient give the payor effective notice of his or her intention to seek child support; ii. effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated; iii. once the issue is raised, when and what has the recipient done to pursue child support such as commencing legal proceedings; and iv. the basic principle to be considered is balancing the payor’s interest for certainty with the need for fairness and flexibility.

[134] Specifically, in D.B.S. (supra), the court set out for principles applicable to any claim for retroactive support as follows:

i. whether there was a reasonable excuse for why the claimant did not pursue child support or increased child support earlier; ii. the conduct of the payor parent. The Court characterized “blameworthy conduct” as “anything that privileges the payor parent’s own interests over his/her child’s right to an appropriate amount of support” (D.B.S., at para. 106). It emphasized that a payor cannot simply hide their income increases from the recipient parent in hopes of avoiding larger child-support payments; iii. consideration of the present circumstances of the child; and iv. any hardship that may be occasioned by a retroactive order.

[135] I find that there was no evidence led by the applicant as to when there was a request for child support. I reject the applicant’s submission that the parties attended mediation in November 2013 and the court should presume that a request for child support was made at that time. The court cannot guess as to what was discussed in mediation as any discussions in mediation are not to be disclosed without the consent of both parties.

[136] I find that from separation until December 2013, the respondent was paying for expenses related to the matrimonial home as well as car expenses. However, in January 2014, after mediation failed, the respondent started to voluntarily pay child support on a without prejudice basis.

[137] Balancing the competing interest between the applicant as recipient and the respondent as the payor, I find that child support should commence as of the date the respondent started to pay child support, being January 2014.

CALCULATION OF CHILD SUPPORT

[138] For the year 2014, based on the respondent’s income of $65,126, the applicant’s income of $29,706 and the special expenses, I order the respondent to pay to the applicant’s table child support in the amount of $968 per month and $235 for his share of the children’s section 7 expenses.

[139] For the year 2015, based on the respondent’s income of $63,792, the respondent’s income of $30,446 and the special expenses, I order the respondent to pay to the applicant the sum of $948 per month in table child support and the sum of $624 per month for his share of the children’s section 7 expenses.

[140] For the year 2016, based on the respondent’s income of $40,006, the applicant’s income of $29,906, the child care expenses and hockey registration costs and team fee, I order the respondent to pay to the applicant table child support of $579 per month and the sum of $369 per month for his share of the children’s section 7 expenses.

[141] For the year 2017, based on the respondent’s imputed income of $30,000, the applicant’s income of $24,646 and the hockey registration fees and team fee, I order the respondent to pay to the applicant table child support of $459 per month and the sum of $63 per month for his share of the children’s section 7 expenses.

[142] For the year 2018, based on the respondent’s income of $30,000, the applicant’s income of $30,000, the hockey registration fees and team fees for both boys, I order the respondent to pay to the applicant the sum of $459 per month and the sum of $72 per month for his share of the children’s section 7 expenses.

CALCULATION OF ARREARS OF CHILD SUPPORT

[143] I find that for the year 2014, the respondent should have paid $14,437 for table child support and section 7 expenses and that he actually paid $10,920. I find that there are arrears owing of $3,517 for the year 2014.

[144] I find that for the year 2015, the respondent should have paid $18,870 for table child support and section 7 expenses and that he actually paid $19,960 and is entitled to a credit of $1,090 for the year 2015.

[145] I find that for the year 2016, the respondent should have paid $11,375 for table child support and section 7 expenses and that he actually paid $8,140. I find that there are arrears owing of $3,235 for the year 2016.

[146] I find for the year 2017, the respondent should have paid $6,260 for table child support and section 7 expenses and that he actually paid $2,670. I find that there are arrears owing of $3,590 for the year to 2017.

[147] I find for the year 2018 up to and including September 12, 2018, the respondent should have paid $4,779 for table child support and section 7 expenses and that he actually paid $2,670. I find that there are arrears owing of $2,109 as of September 12, 2018.

[148] In conclusion, I find that the respondent owes to the applicant arrears of table child support and his share of section 7 expenses up to September 12, 2018, in the amount of $11,361.

[149] On the issue of the repayment of said arrears, this amount was owing from the respondent to the applicant. I find that the respondent has not fulfilled his obligations to make full and complete financial disclosure. He only provided a copy of his 2017 income tax return shortly before the commencement of this trial.

[150] I am cognizant of the fact that the respondent is required to pay $459 per month in table child support and $72 per month for his share of the children’s section 7 expenses for a total of $531 per month.

[151] I have balanced the need of the respondent to pay child support and the respondent’s ability to support himself. I find it fair and reasonable that the respondent shall repay the arrears of $11,361 over a four-year period in equal instalments of $236.69 per month commencing December 1, 2018 until paid in full.

ONGOING OBLIGATION OF FINANCIAL DISCLOSURE

[152] Within 10 calendar days of a change in the current employment status of either party, they shall provide to the other party an email setting out the name of the employer and the remuneration.

[153] By May 1 of each year in which child support is payable, both parties shall deliver to each other a copy of their income tax return for the previous year. In addition, both parties shall, within 10 days of receipt, email a copy of their notice of assessment or notice of reassessment (if any).

[154] Based on the disclosure obtained, the parties shall determine the appropriate amount of child support and proportionate share of section 7 expenses. In the event the parties cannot agree, the matter shall be submitted to the Superior Court for adjudication.

EXTENDED HEALTH CARE

[155] The respondent consented to an order that he will maintain the children as the beneficiaries of his extended health care available through his current employment with the Corps of Commissionaires.

[156] I order the respondent to sign and deliver to his insurer, within 30 days, any direction or document required from his employer’s insurer to permit the applicant to submit any health claims directly to the insurer and to be reimbursed directly from the insurer. The respondent is to provide a copy of said documentation to the applicant within seven days of submitting the document to his insurer.

SECURITY FOR SUPPORT

[157] The respondent testified that he has no life insurance either on a personal basis or through his current employment with the Corps of Commissionaires.

[158] The respondent has a legal obligation to support his children. Part of the legal obligation is to provide security for said support payments. Since the respondent does not have a life insurance policy, I order that his obligation to pay child support shall form the first charge on his estate.

[159] Further, I order that in the event the respondent obtains employment which has a life insurance policy as part of his benefits, he is to advise the applicant in writing within 30 days of the commencement of said employment and provide her with a copy of the details of said life insurance benefit. If the parties are unable to agree on part or all of said life insurance policy being security for child support, the issue shall be determined by the Superior Court.

COSTS

[160] If the parties are unable to resolve the issue of costs by November 2, 2018, the applicant shall provide her written costs submissions not to exceed three pages plus any offers to settle and a detailed Bill of Costs by November 16, 2018. The respondent shall file his written costs submissions not to exceed three pages plus any offers to settle and a detailed bill of costs by November 30, 2018. The applicant may file reply submissions by December 7, 2018.

Mr. Justice Mark Shelston

**Released:** October 30, 2018