Court File and Parties

COURT FILE NO.: FS-16-20921 DATE: 20190322 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Sandra Panajotow Applicant – and – Slavisa Bacanin Respondent

COUNSEL: Amanda Taerk, for the Applicant In Person

HEARD: February 26, 27 and Written Submissions

Moore, J.

Reasons for Judgment

[1] Sandra Panajotow (“Sandra”) brings this Application seeking a continuation of court orders restraining Slavisa from contact with Sandra and the two younger children of the marriage, child support retroactive to September 1, 2014 with credit given for any child support payments made to date, an imputation of income to the respondent for child support purposes and an order that the parties shall share the children’s extraordinary expenses, including but not limited to extracurricular sports and university, on an equal basis.

[2] Slavisa Bacanin (‘Slavisa”) seeks orders for generous unsupervised access to the children; setting aside the parties’ separation agreement, executed on February 27, 2014 and, if necessary, extending the limitation period for setting aside said agreement; recovery of $25,000 owing to him pursuant to the separation agreement; for the determination and equalization of the net family properties of the parties and, if required, extending the time prescribed by the Family Law Act for an equalization of net family properties; and requiring Sandra to repay Slavisa the sum of $19,000 paid to her for child support for the children.

Background

[3] The parties met when they were preteens. They started dating when they were seventeen years old. They were married on August 28, 1993. They separated on January 25, 2012 and were divorced by way of a Divorce Order dated May 15, 2014.

[4] The three children of the marriage are: Adam Robert Bacanin, born April 26, 2000; Ryan David Bacanin, born April 26, 2002; and Sarah Paige Bacanin, born July 20, 2004.

[5] The children and the parties continued to live in the matrimonial home between January 2012 and September 2014; Slavisa lived in the basement and the rest of the family lived upstairs. During this interval, Sandra was employed and Slavisa was unemployed or self-employed, working out of a basement office in the home. Sandra paid for all of the household and family expenses without contribution from Slavisa at this time.

[6] Sandra prepared a draft separation agreement and presented it to Slavisa in 2012. The parties signed the separation agreement, in the presence of Sandra’s mother as witness, on February 27, 2014.

[7] In May 2014, following the divorce, Sandra purchased Slavisa’s one half interest in the jointly owned home [1] and Slavisa moved out.

[8] The children have continued to live with their mother until the present time. Slavisa enjoyed access visits and telephone and email contact with the children until September 2015 when Slavisa was arrested following an incident between him and Sandra at the former family home and a restraining order issued against him. Sandra commenced this Application on June 17, 2016, shortly after that restraining order expired.

[9] During 2015, Sandra’s concerns regarding Slavisa’s conduct and language around her and the children rose to the level that she self-referred them to the Children’s Aid Society of Toronto (“CAS”). A CAS investigation followed and three letters [2] reporting thereon together with access recommendations and concerns issued.

[10] In short summary, the CAS’ primary concerns centred on the effect that Slavisa’s interactions with the children have had on the emotional well-being of the children. The CAS reports in evidence at this trial and, as will be seen, in court proceedings prior to trial, describe Slavisa’s communications with the children as being emotionally difficult for the children, such as when he sought to engage them in inappropriate conversations about their mother and making the children feel that they should be doing something to try and repair the relationship between their parents.

[11] The CAS heard from the children about the negative emotional effect that telephone conversations with their father produced; Slavisa told the oldest child, Adam, then 15, that he would take his own life unless Sandra would take him back and that Adam should therefore get his mother to take him back.

[12] The CAS recommended and facilitated several supervised access visits for Slavisa with the children in 2017 but the children continued to express concerns that their father may become inappropriate again (yelling, intimidating and disparaging their mother) if they were to be left alone with him without supervision. As such, the CAS recommended that future access visits be supervised by a family member or a third party agreeable to the parties and the children. Slavisa did not like that suggestion; he reacted negatively by attending at CAS offices and refusing to leave; the police were called and soon thereafter, police cautioned Slavisa that such outbursts could lead to charges of trespassing or harassment. The CAS determined that it was no longer prepared to continue supervising access.

[13] Sandra worked with CAS to encourage the Society’s continued involvement in facilitating and supervising access visits away from CAS offices. The Society agreed but Slavisa would have nothing to do with CAS involvement in access visits. He chose not to contact CAS and has made no efforts to arrange supervised access visits through an access centre [3] and therefore, has not seen Ryan or Sarah since. Adam is now eighteen years of age and has recently engaged in occasional visits and telephone communications with his father, with mixed success.

[14] Access issues have been further complicated by Slavisa’s penchant to rage against Sandra, the children and even Sandra’s counsel [4] using inappropriate, aggressive, threatening and often simply horrible language. He placed the children squarely into the middle of his anger over Sandra’s decisions to separate and divorce him. He attempted to bully Sandra and her counsel.

[15] So concerned was Sandra for the safety of the children and her own safety that she brought an ex parte motion on March 9, 2017 for a temporary restraining order, one granted by Diamond J. The parties were both before Diamond J. on March 21, 2017 when Slavisa sought to have the restraining order set aside. It was not; rather, the court observed that the record is replete with examples of Slavisa having little to no judgment causing him to lose control and lash out against anyone who he wishes to confront. The court cited examples from some of the aforementioned emails saying of them that they evidence the type of conduct that is designed to cause psychological damage to the applicant and more importantly to the children. The court also pointed out that Slavisa’s anger cannot possibly explain or excuse his conduct. It is not conduct that promotes or considers the best interests of the children and is designed to adversely impact Sandra’s relationship with her children. [5]

[16] On November 27, 2017, Slavisa brought another motion, this one before Backhouse J., seeking to remove the restraining order; again, his motion failed. The court found that:

The mother made good faith efforts to organize access after the father’s sister was not prepared to supervise the father’s access. Rather than respond to the mother’s efforts, he has chosen to bully the mother and her lawyer and to force the mother to court by bringing this motion which lacks any merit. It is clear from the father’s behaviour and the letter from CAST [6] that supervision of access and the restraining order continue to be necessary. [7]

[17] Slavisa brought an ex parte motion, heard and dismissed by Harvison Young J. on July 13, 2018, seeking leave to bring on a motion to terminate the restraining order. Her Honour found nothing in the submitted materials to satisfy the court that the supervised access ordered and the restraining order are no longer warranted.

[18] Thereafter, Slavisa brought another ex parte motion for leave to bring a motion to terminate the restraining order. By endorsement dated September 14, 2018, Stevenson J. dismissed this motion.

[19] With this background, the matter proceeded to trial.

Sandra’s overall position

[20] Sandra correctly submits that the trial was solely the result of Slavisa’s bad behaviour. She states that when the action commenced, she was trying to establish a workable custody and access regime and wanted some child support to assist her with expenses for the children. She insists that the case then changed from one that could have been relatively simply resolved into a case wherein Slavisa used the legal system to continue to abuse and assert power and control over Sandra.

[21] She states that following upon the court granting the restraining order, Slavisa was infuriated and refused to accept the situation and seek help for his impulsivity or unresolved feelings about her and chose to lash out against Sandra, CAS and Sandra’s lawyer. Sandra insists that Slavisa’s behaviour was and continues to be belligerent, abusive and bullying.

[22] Sandra points out that Slavisa has refused to access the avenues currently available to him to see the children. Instead, he has directed his energy to repeatedly threaten to make a complaint against Sandra’s lawyer to the Law Society and the Attorney General [8] without ever clearly identifying the basis of the complaint. Sandra submits that when Slavisa was asked about this behaviour during cross-examination, he either denied that these behaviours had taken place or he trivialized the impact of these various behaviours upon the objects of his anger.

[23] Sandra submits that through Slavisa’s refusal to engage in the process created through the assistance of CAS to facilitate access to the children, Slavisa chose to push this matter onto a trial.

Slavisa’s Overall Position

[24] Slavisa’s mantra in his closing submissions is that since separation Sandra has always maintained the “Donald Trump/bully in the sandbox” attitude with a “my way or highway stance”, not willing to negotiate and using a restraining order to prevent any dialogue with him. In closing, he described Sandra’s approach as being only in the interests of a self-narcissistic parent who is vindictive with hate and anger towards the other parent. He added that there is a burden that a child is forced to bear when one parent fails to recognize their child’s strong need to love and be loved by the alienated parent.

[25] In my view, the evidence does not support Slavisa’s mantra or the suggestion that Sandra has engaged in parental alienation with respect to him.

[26] Sandra provided clear, compelling evidence in support of her overall position and her positions on each of the issues outstanding at trial. In addition, her evidence well withstood cross examination.

[27] In contradistinction, Slavisa testified in a stream of consciousness fashion; his evidence was often vague and contradicted by other evidence that the court accepted and values. He was impatient and given to trodding on questions and answers before the examiner or witness he was engaged with had finished speaking. He rewrote history in his description of the significance of his past behaviour, something that he declined to take ownership of and responsibility for and in his description of his relationship with his three children. He submitted that he has always had a positive relationship with all of his children but that simply is not the case.

[28] Moreover, in her endorsement of November 7, 2017, Backhouse J. Specifically found that “this is not a case of parental alienation as the father has attempted to characterize it” [9] and neither does the evidence at trial support a finding of parental alienation on Sandra’s part.

[29] In fact, Sandra testified, and I accept, that she wanted Slavisa to have a relationship with the children. She thoroughly supports that, she said, from the bottom of her heart. She added that she wants the children to have a relationship with their grandparents, with the aunt, with their cousins and with all extended family; she emphasized her position by saying that she supports all of this 100%.

[30] Sandra went on to say that unfortunately it is Slavisa’s behaviour that has prevented this from happening. She said that they got through some visits with CAS and were at the point of moving on so that Slavisa would go to the next step toward unsupervised access but he shut the process down by having the police involved because he lost his cool at the CAS office and the police had to attend.

[31] Sandra was taken to Exhibit 2, the three CAS letters, and specifically the December 9, 2016 letter of the CAS worker, Lisa Henry, which sets out the observations and findings of the CAS following interviews with the three children. Sandra described that summary as a very good summary of the issues that the children were facing, that the behaviour of Slavisa was not appropriate for them but it also indicated that her family members were all very supportive of Slavisa wanting to have a healthy, happy relationship with the kids but they just don’t want to have the harassment and being part of being in-between the parental breakdown. They don’t need to hear all of Slavisa’s horrific words. They just want to have a healthy relationship, with them being the priority.

[32] Asked whether anyone had ever tried to ask Slavisa to stop hounding and harassing the children, she testified, and I accept her evidence, that he won’t stop and that’s the problem. He has an issue with authority and an issue with understanding the primary reasonable process and making it way more difficult. She believes that the parties didn’t have to be here (meaning at trial). She said it’s a point of having a simple conversation, using the resources that are available and communicating. Slavisa chose not to.

[33] By way of example, she referred to the copies of text messages [10] between Slavisa and the oldest child, Adam, which are intimidating, inaccurate, unsettling and I as I have noted above, contain horrible language for a father to impose upon his son. By their endorsements and directions that the interim restraining order remain in place for the protection of Sandra and her children, it appears clear to me that Justices Diamond, Backhouse, Harvison Young and Stevenson would agree with me.

[34] Sandra pointed out that in the time leading up to the restraining order, Slavisa sent numerous texts, including about 150 of them in one day. He argues that he only sent texts to Adam but given the contents of the texts in evidence, I think it likely that Adam would have shared both the number and nature of the texts with his mother and siblings.

[35] In addition, Sandra testified to an incident when she was taking the children for soccer and Slavisa blocked the roadway demanding to speak with the children, just an incredibly inappropriate way to communicate, in her view. She described the children as “frantic” and said they had no idea what was happening and they could not handle the constant overwhelming guilt that Slavisa would place on them and his manipulations.

[36] In his evidence at trial and in his closing submissions, Slavisa attempted a “that was then but this is now” approach to restoring regular communications with all three of the children. He says he regrets his prior conduct and language and would not say the things that he did to Sandra, the children or Sandra’s counsel now. In my view, history is the best predictor of whether Slavisa can control himself and maintain cordial relations with the children going forward.

[37] He exhibited frustration and difficulty in the courtroom controlling his temper. He obviously and often attempted to control the pace and direction of the evidence as it unfolded. It is also important to note that while most of the offensive emails and texts that he authored predated the Temporary Restraining Order issued by Diamond J. and he has not communicated with Sandra, Ryan or Sarah since, he has communicated with Sandra’s counsel and the evidence clearly demonstrates that, in their own way, his emails fired off to counsel are equally as horrible as the texts he directed at Adam. Slavisa sent such emails to Sandra’s counsel in 2017, 2018 and as recently as January 11 and February 21 of 2019.

[38] Slavisa clearly cannot resist the temptation to ramp-up the rhetoric when he does not get his way.

[39] Adam is now 18 and in recent months Slavisa has had communications with Adam and access visits with him. Slavisa described those interactions as having gone very well but in cross examination he conceded that on the Sunday preceding the Monday, February 25, 2019 commencement of this trial, Slavisa called Adam and pleaded with Adam to visit; he admitted to crying on the phone to Adam saying “listen, you promised me you’re going to come over. I’d like to see you”. Adam eventually agreed to visit his father that night.

[40] Remarkably and in keeping with his history of self-focussed interactions with his children, Slavisa volunteered to examining counsel: “ I have a right to see my kid” (emphasis added). On being asked whether it was appropriate conduct to be sobbing on the phone and expressing extreme distress to a child, Slavisa responded “some people react differently” and “he came over, we had a great time.”

[41] In addition, Slavisa “mentioned” to Adam that “I am going to court with your mother tomorrow” and allowed that Adam may have seen Slavisa’s papers and all the things Slavisa was preparing to bring to court which Slavisa had “all over the floor. It’s a lot of papers” he said.

[42] Slavisa was asked: “were you talking to him about the evidence that you may give?” He answered: “I don’t recall”; asked whether discussing evidence would have a negative impact on Ryan (age 16) or Sarah (age 14), he declined to answer saying it was a hypothetical question and suggested that the restraining order be lifted in order to find out; hardly a responsive, responsible, child focussed position for a father to espouse.

The Restraining order

[43] Sandra submits that the restraining order must remain in place. The mere fact that Slavisa is so evidently angry and sad about the breakdown of his relationship with Sandra, his anger toward her for seeking the restraining orders in the first place, his ongoing threatening, intimidating and aggressive behaviour towards anyone who does not give him exactly what he wants when he wants it, warrants the necessity for an ongoing restraining order for her. She adds that although he has not been typically physically aggressive towards anyone, his behaviour at times has been so concerning that it would not be unreasonable to assume that if he were to become frustrated or irritated in the future and had the opportunity to access Sandra, he could resort to perpetrating physical violence against her. I must agree with Sandra’s position.

[44] Sandra correctly insists that Slavisa is the only one who can be accountable for his behaviour but he has demonstrated no insight or self-reflection into his conduct throughout this litigation. She insists that he shows little or no remorse for speaking so destructively to his children. He has done nothing to assure Sandra that if the restraining order is lifted, he would not continue such behaviour towards the younger children. She points out, and the evidence at trial confirms, that Slavisa has sent multiple, at times daily, abusive communications to anyone he is permitted to contact and he has attempted to bully everyone around him. His behaviour was so egregious that it necessitated the issuance of the restraining order.

[45] Sandra acknowledges that Slavisa repeatedly asserted at trial that his behaviour has changed over the course of this three year-long litigation; he stated that he is sorry for the things he has said and that he will not act inappropriately with the children but he has done nothing to evidence this. In fact, she submits, during the trial and in the days leading up to it, Slavisa provided further evidence that he is not able to control his emotions or his behaviour. Luckily, for the children, because of the restraining order, they have been protected from their father’s outbursts for the last two years. But, Sandra is confident that if given the forum and the opportunity, Slavisa will continue to harass, manipulate and destroy the children’s relationship with their mother and exert extreme emotional distress upon the children. Sandra’s concerns in this regard are well founded, in my view.

[46] Sandra adds that Slavisa’s ongoing refusal to work with the CAS or a supervised access centre has resulted in him not being able to have contact with his children. Gaining access to the children has always been within his control; nevertheless, he has chosen to bring multiple motions for the same relief, each without merit, to lift the restraining order.

[47] Sandra submits that Slavisa’s behaviour and his conduct in this litigation have increased her legal costs exponentially and have caused increased stress to Sandra, who is solely caring for the three children on her own without appropriate financial assistance from Slavisa.

[48] Slavisa claimed in his evidence and in closing submissions not to understand how Sandra can be heard to say, from the bottom of her heart that she wants the children to have a relationship with him and yet will not work with him to remove the restraining order. He ignores the fact that Sandra is quite content to see Slavisa commence supervised access visits (now with Ryan and Sarah) in the community; all he has to do is call CAS to set that process in motion. When that proposition was put to Slavisa at trial, he replied: “But, see, I’m never going to talk to the CAS again, period”. And he has made no enquiries into arranging access through a supervised access centre.

[49] Slavisa promotes an unsupervised experimental period of access because “my daughter needs to see her dad at soccer games, see him cheering her on like every other dad. And my middle child is going—probably going to university in two years, I’ve decided where he’s going to go, he needs a little bit of input ” (emphasis added).

[50] Slavisa’s plan to restore access is no plan at all. It affords no protection to the children from the awful conduct Slavisa has displayed in the past. The children deserve more.

[51] On this point I also accept and value Sandra’s evidence regarding Ryan and Sarah. She testified that she does not believe that Ryan is strong enough to stand up and say no to his father. Ryan has a weight issue but is on a good plan right now. Sandra does not want to see emotional pressure from Slavisa thrust upon Ryan, which Ryan has no control over. In contrast to Adam who has a strong sense of voice to stand up for himself and to protect himself and say no when his dad has crossed the line, which Adam can do right now but Ryan can’t yet do.

[52] As for Sarah, Sandra describes her as being very young and someone who will do anything her dad says and will get caught up in not knowing the parameters of what to do or say if her dad asks her “the wrong thing” or if “he said something bad about” her mother and Sarah has told Sandra that in such circumstances “I don’t know what to do and I’m stuck.”

[53] Sandra does not feel that Slavisa’s behaviour has changed and she wishes to see the restraining order remain in place until Ryan and Sarah are eighteen years old.

[54] Having regard to the evidence and the best interests of these two children and having considered their needs and circumstances as described in section 24(1) - (4) of the Children’s Law Reform Act [11] I cannot embrace the access plan submitted by Slavisa and direct that the restraining order, modified to apply only to Ryan and Sarah, remain in place until their respective eighteenth birthdays, with access terms as ordered by Diamond J. in his Endorsement of March 21, 2019.

The Separation Agreement

[55] Sandra correctly submits that the legal burden to demonstrate, through admissible evidence to set aside the parties’ separation agreement, rests with Slavisa but he has not met that burden. She insists that, at best, he provided some oral evidence that he suffered from sad feelings during the breakdown of the marriage and immediately following the separation. He testified that at some point in March 2012 he went to the hospital seeking help for his alleged depression. She states that even if one were to believe that Slavisa was depressed at that time, he failed to provide the necessary medical evidence to substantiate this.

[56] She submits, furthermore, that the separation agreement was provided in draft to Slavisa in early 2012 but was not signed by the parties until February 2014, almost 2 years after Slavisa’s stated trip to the hospital and two years after he was given a copy of the draft agreement. Sandra adds that when asked about the limitation period issues regarding his claim for a property division following a possible setting aside of the separation agreement, Slavisa claimed first and that he did not know about the limitation period and then he claimed not to have been in his “right mind” until mid-2017 when he was able to understand the alleged issues with the separation agreement and he became motivated to set the agreement aside. This was the first time this position had been articulated in this proceeding; yet there was no medical evidence to establish that Slavisa had not been in his “right mind” until mid-2017.

[57] Sandra argues that just two days before the trial began Slavisa provided income tax documents demonstrating his ability to earn income of approximately $70,000 per year. She adds that he gave oral evidence that between 2014 and 2017, he operated at least three businesses, one of which exists today and generates his current income. She submits, therefore, that if Slavisa was able to run a business and generate income, surely he was in his “right mind”. I agree.

[58] Without reference to legislation or case law supporting his position, Slavisa submits that: in accordance with Ontario Family law, no separation agreement can be valid when either party has no legal representation or advice.

[59] He adds that Sandra knew that he was suffering from severe depression and points to the fact that she drove him to a hospital in 2012 as proof of that knowledge. And, he submits that he was on medication for depression from 2012 to 2016.

[60] In his evidence at trial, Slavisa said that he did not remember the exact details of the circumstances surrounding his signing of the separation agreement but he felt coerced and under duress. He added that the coercion “probably would have been in her (Sandra’s) anger, in her tone towards me, in her angerness [sic] or bitterness towards me” Cross examining counsel then said: “And so you’re suggesting that because she was angry with you, then you felt like you were coerced into signing the agreement?” Slavisa answered: “That’s correct.”

[61] He offered no other evidence suggesting that he had any other question or concern with the propriety of the separation agreement.

[62] The separation agreement at issue here is a domestic contract. Section 55 of the Family Law Act [12] (FLA) provides that a domestic contract is unenforceable unless made in writing, signed by the parties and witnessed. The FLA does not require that parties to the contract be advised by or represented by counsel.

[63] I am satisfied that the Separation Agreement was signed and witnessed and that it complies with the requirements of an enforceable agreement.

[64] Section 56(4) of the FLA speaks to setting aside a domestic contract in situations including when a party did not understand the nature or consequences of the domestic contract and otherwise in accordance with the law of contract and that broad term includes situations of duress.

[65] In this case Slavisa had the draft Separation Agreement in his possession for almost two years before he signed it. He had ample opportunity to read it and raise any questions he may have had about it with Sandra or a lawyer of his choice. He raised none. He is a university educated, intelligent man. There is no basis to find that he did not understand the nature and consequences of this separation agreement.

[66] Slavisa cannot self-diagnose severe depression and nor can Sandra. Absent expert opinion evidence, and there was none adduced at this trial, I cannot accept that Slavisa was hampered mentally in his appreciation of the nature and consequences of signing the agreement.

[67] In Ludmer v. Ludmer, 2013 ONSC 784 [13] the court addressed duress in the context of a case involving the validity of a separation agreement. The portions quoted here are also applicable to this case:

Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. There can be no duress without evidence of an attempt by one party to dominate the will of the other at the time of the execution of the contract. To prove duress, the applicant must show that she was compelled to enter into a marriage contract out of fear of actual or threatened harm of some kind. There must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement.

In my opinion, this evidence, even if accepted without question (which I cannot), is incapable of meeting the serious threshold required to set aside an agreement on account of alleged duress. At its highest, this evidence indicates that there was some stress associated with the issue of the marriage contract and that the applicant felt “pressure” to sign. I find that the applicant’s will was not overborne or coerced. There was no improper threat or intimidation. She may not have thought it mattered at the time, but she understood the nature and effect of the marriage contract and signed it voluntarily.

[68] Slavisa bears the burden of establishing the invalidity of the agreement; he has failed to do so. Therefore, upon the evidence at trial and the applicable law, I declare the separation agreement signed by the parties on February 27, 2014 to be valid.

Financial issues

[69] Sandra insists and the evidence at trial confirms, that Slavisa failed to provide essential financial documents such as a completed, accurate and sworn financial statement, complete and updated bank records, financial statements from his various corporations and personal and corporate income tax returns and it was not until three days before trial that Slavisa served an incomplete and unsigned financial statement and a tax summary document detailing his 2016 and 2017annual incomes.

[70] She correctly submits that Slavisa did not deliver complete copies of income tax returns for 2015, 2016 and 2017 until the second day of trial. He provided no documentary evidence of his 2018 income but gave oral evidence that is income in 2018 would be “the same” as it was in 2017. The only other financial statement the respondent had provided in this proceeding was delivered in December 2016 and that financial statement was in respect of support claims only.

[71] Sandra therefore takes the position that the incomplete and late provision of the aforesaid financial documents was problematic on multiple levels. First, it was impossible to predict what child support obligations Slavisa had without information regarding his income and, second, if Slavisa was to be successful in his set-aside application and was then able to make an equalization claim, it would have been impossible for Sandra to determine what exposure she had, if any.

[72] Sandra argues and I accept that Slavisa has failed to provide essential and necessary evidence of his current financial circumstances and in such a case, 2018 and 2019 child support obligations must be determined on the basis of the evidence that the court does have, which would be in accordance with Slavisa’s 2017 income tax return which shows a gross income of $73,507. The child support owing for 2017 should be based on Slavisa’s 2016 gross income of $25,259 and support for 2016 should be based on his 2015 gross income of $4,070. Slavisa has not provided the information necessary to determine whether or not his expenses are legitimate as deductions from his income for support purposes.

[73] Sandra submits therefore that Slavisa owes the following: a) 2016: $0 b) 2017: $522 per month c) 2018: $1,461 per month d) 2019: $1,461 per month

[74] Slavisa offered no reasonable explanation for his failure to provide full, fair financial disclosure in this case. I agree with the position taken by Sandra in respect of assessing fair figures for Slavisa’s income for child support purposes upon the best available evidence before the court.

[75] In his closing submissions, Slavisa asserts that his income for 2018 will be less than his income for 2017. That assertion is not supported by the evidence, however. During cross examination, he was specifically asked whether his income for 2018 will be the same as his income in 2017 and he agreed that it will be. [14]

[76] I therefore find that Slavisa’s child support obligations shall be calculated as set out in paragraph 73, above. A Support Deduction Order shall issue accordingly.

[77] Sandra was an insurance adjuster for about 21 years until July 2017 when she chose to become a health coach. Her uncontested evidence is that she now earns about $1,600 per month or, about $20,000 per year. As such, the parties shall share the children’s extraordinary expenses in accord with the Child Support Guidelines on the basis of 79% attributable to Slavisa and 21% to Sandra.

Return of money deducted from home sale proceeds

[78] Slavisa took issue at trial with whether he authorized the deduction of money from his share of the proceeds of sale of the former matrimonial home. In his closing submissions, he referred to the deduction of $18,000. The evidence confirms the amount deducted was actually, $17,000. [15] I accept Sandra’s evidence that the parties agreed that this sum was to be deducted from Slavisa’s one half interest in the proceeds of sale of the home and paid to Sandra in June of 2014 as an advance on Slavisa’s child support obligations. This evidence is supported by the June 19, 2014 Statement of account [16] of the real estate lawyer for the parties, Mr. Rassos, confirming that he met with the parties and took instructions to complete the transaction. As such, Slavisa’s claim for the return of these disbursed funds is dismissed.

[79] Slavisa’s Amended Answer pleads a claim for the return of $25,000 owing to him pursuant to the separation agreement. No evidence was lead at trial in support of this claim; accordingly, it too is dismissed.

Costs

[80] Sandra is the successful party in this matter and is presumptively entitled to costs. She seeks an order for costs of $22,905.85 for the cost of the attendance at and preparation for the trial management conference, preparation for trial, attendance at trial and the preparation of her costs submissions. She points out that her claim for costs includes her costs incurred in connection with the emergency motion on March 7, 2017 and the motion on March 21, 2017, which were ordered by Diamond J. to be costs in the cause.

[81] Sandra relies upon the provisions of Rule 24 of the Family Law Rules [17]. She submits that the issues were not complicated or difficult and I agree. I also find that the issues were very important to the parties and to their children.

[82] While the court does not undertake a line by line analysis of docket entries in fixing costs, I have reviewed Sandra’s Bill of Costs and find that the rates charged, services described and expenses incurred are reasonable.

[83] In fixing costs, the court is mindful of the factors set out in Rule 24(11) and the statement of general principles taken from Chomos v. Hamilton, 2016 ONSC 6300 [18]:

8 Rules 18 and 24 of the Family Law Rules govern the determination of both liability for costs and the amount of costs. While these rules have not completely eliminated judicial discretion, the rules nonetheless circumscribed the broad discretion previously granted to the courts in determining costs…

9 Rules 18 and 24 and most of the case law focus on two words: “Success” and “Reasonableness”. The latter entails two components: a. Reasonableness of behaviour by each party. b. Reasonableness of the amount of costs to be awarded.

10 In Serra v. Serra, 2009 ONCA 395 the Ontario Court of Appeal confirmed that costs rules are designated to foster three important principles: a. To partially indemnify successful litigants for the cost of litigation. b. To encourage a settlement; and c. to discourage and sanction inappropriate behaviour by litigants..

11 The assessment of costs is not a mechanical exercise. It’s not just a question of adding up lawyers dockets. Boucher v. Public Accountants Council (Ontario), 71 O.R. (3d) 291 (Ont. C.A.); Dingwall v. Wolfe, 2010 ONSC 1044 (Ont. S.C.).

12 The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant. Selznick v. Selznick, 2013 ONCA 35 (Ont. C.A.); Delellis v. Delellis, 2005 CarswellOnt (Ont. S.C.J.; Serra (supra); Murray v. Murray; Guertin v. Guertin, 2015 ONSC 5498 (Ont. S.C.J.).

As well, I bear in mind and endorse the words of Spence J. in Husein v. Chatoor, 2005 ONCJ 487 [19]:

[P]arties have an obligation to begin to assess their respective cases at the outset of the litigation-even before the litigation commences-and to make all reasonable efforts to settle. Legal fees can create enormous financial burdens on litigants and it behooves neither party simply to sit back and to roll the dice while those fees continue to mount.

And, returning to Serra [20]:

As this Court has observed, costs awards, at the end of the day, should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”: see Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d), at para 34.

[84] Sandra seeks costs fixed on a full recovery basis as Slavisa has acted in bad faith in several respects during the course of the proceedings, including through his persistent attempts to isolate Sandra from her lawyer, threaten her lawyer and harass her; his attempts to have Sandra’s lawyer remove herself as the solicitor of record because of his threats that he would complain about her to the Law Society and the Attorney General; and his ongoing references to her personal life and family members. I agree with Sandra’s submissions and add that Slavisa acted in bad faith in choosing to communicate with Sandra, Adam and Sandra’s lawyer through outrageous, horrible language.

[85] I reject Slavisa’s submissions that he acted reasonably and/or wrote politely to Sandra’s counsel asking to have the restraining order removed. It is irrelevant that he did not follow through on his threats to report counsel to the Law Society and the Attorney General; when read in the context of the many inappropriate communications to counsel, those threats were unnecessary, inappropriate and inflammatory and obviously calculated to impair Sandra’s ability to pursue her claims in an efficient and cost effective manner.

[86] Having considered the guiding principles for fixing costs and all relevant factors in the circumstances of this case, I fix the costs payable by Slavisa to Sandra on a full recovery basis in the sum of $22,905.85, payable forthwith.

[87] Order to go:

1. The restraining order originally issued by Diamond J. on March 9, 2017 shall be rescinded but only with respect to Adam Bacanin, born April 27, 2000; otherwise said restraining order shall continue in the same terms and conditions as originally ordered with respect to Sandra Panajotow until further order of the court and, with respect to Ryan Bacanin, born April 26, 2002 and Sarah Bacanin, born July 20, 2004, until they respectively attain age 18;

2. The parties’ separation agreement, executed on February 27, 2014, is hereby declared valid;

3. The applicant’s income for purposes of section 7 expenses sharing is deemed to be $20,000 per year;

4. The respondent’s income for child support and section 7 expenses sharing is deemed to be $4,070 for 2015, $25,259 for 2016, $73,507 for 2017 and $73,507 for 2018; The respondent shall pay the applicant child support of $0 for 2016, $522 per month for 2017, $1,461 per month for 2018 and $1,461 per month for 2019;

5. The parties shall share section 7 expenses on the ratio of $79% payable by the respondent and 21% payable by the applicant;

6. For as long as child support and/or section 7 expenses are to be paid, the parties shall provide updated income disclosure to each other each year, within 30 days of the anniversary of this order, in accordance with section 24.1 of the Child Support Guidelines;

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

8. The respondent’s claims for the recovery of $17,000 and/or $25,000 from the applicant are dismissed;

9. The respondent shall pay the applicant costs on a full recovery basis fixed in the sum of $22,905.85, payable forthwith.

10. This order bears interest at the rate of _____% per year affected from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

Moore J.

Released: March 22, 2019

COURT FILE NO.: FS-16-20921 DATE: 20190322 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Sandra Panajotow Applicant – and – Slavisa Bacanin Respondent

REASONS FOR JUDGMENT Moore, J. Released: March 22, 2019

Footnotes

[1] Proceeds of sale adjusted to reflect payment of his debts owing according to two outstanding liens on the property and an amount reflecting his agreement to contribute toward child support.

[2] December 9, 2016, July 7, 2017 and July 10, 2017 respectively.

[3] As is permitted by Diamond J. in his March 21, 2017 Endorsement.

[4] See Trial exhibits 10 through 20.

[5] March 21, 2017 Endorsement of Diamond J., at paras. 3 and 4.

[6] Children’s Aid Society of Toronto

[7] Endorsement of Backhouse J., released November 7, 2017, at para. 8.

[8] Email trial Exhibits 21 and 23.

[9] At para. 8.

[10] Trial Exhibits 10-12

[11] R.S.O. 1990, c. C.12 , as am.

[12] R.S.O. 1990, c. F.3 , as am.

[13] Ludmer v. Ludmer, 2013 ONSC 784, at paras. 53 and 58.

[14] His accountant has yet to prepare his tax return for 2018.

[15] See Exhibit 6, page 4 Statement of Receipts and Disbursements.

[16] See Exhibit 6, page 5 Statement of Account.

[17] O. Reg. 114/99 as am.

[18] Chomos v. Hamilton, 2016 ONSC 6300, at paras 8-12.

[19] Husein v. Chatoor, 2005 ONCJ 487, 24 R.F.L. (6th) 274 (Ont. C.J.), at para 30.

[20] Supra, at para12.