COURT FILE NO.: FS-14-19818-0001 DATE: 20200519 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Nelson Manuel Gaspar Neves Applicant – and – Alice Patricia Cardoso Pinto Respondent

Counsel: Andrea Di Battista, for the Applicant Patricia Rodriguez-McNeill, for the Respondent

HEARD: January 7-8, February 5, 2020

REASONS FOR DECISION NISHIKAWA J.

Overview and Factual Background

[1] The Applicant, Nelson Neves, and the Respondent, Alice Pinto, cohabitated from May 2008 to September 2014. They were not married. The parties have two children, Layla Emily Pinto Neves, born December 15, 2010, and Nathan Manuel Pinto Neves, born August 10, 2012.

[2] Since 2006, the Applicant has been employed full-time as a deputy construction manager for the Toronto Transit Commission (“TTC”). The Respondent has worked for the Canadian Imperial Bank of Commerce (“CIBC”) for over 10 years and is currently a fraud business consultant.

[3] In March 2016, a trial took place before Moore J. on the issues of custody, child support and spousal support. In his Order dated March 18, 2016 (the “Order”), Moore J. ordered that the parties have joint custody of the children. The Applicant was ordered to pay child support of $1,737 per month and spousal support of $346 per month to the Respondent.

[4] Mr. Neves brings this motion to change the Order, seeking an equal parenting schedule and a review of spousal support, among other relief. While this is a motion for change, the Order required that equal parenting time be implemented and that a review of spousal support take place in September 2018. Neither has been done to date.

[5] Ms. Pinto opposes the motion on the basis that the existing parenting schedule is already equal and no change is necessary. Ms. Pinto seeks the continuation of spousal support.

[6] The motion for change proceeded as a hybrid trial, with evidence in chief by affidavit and cross-examinations at trial. No one other than the parties were called as witnesses. After closing submissions, I requested that the parties discuss whether they could agree to certain terms on which there was no significant dispute at trial. Before closing submissions, counsel indicated that the parties agreed to resolve certain of the issues raised, as will be further detailed in these reasons.

The Order of Moore J.

[7] At the trial before Moore J., Mr. Neves sought joint custody of the children and an order that the children reside equally with both parties. Ms. Pinto sought sole custody of the children and an order that the children reside primarily with her.

[8] By order of Kiteley J., the Office of the Children’s Lawyer (“OCL”) had been requested to investigate out of concern about the extent to which the children had been impacted by the parental conflict. The OCL’s investigation and report recommended joint custody, and a residential schedule in which Mr. Neves would have the children from Tuesday after school until Thursday morning and alternate weekends from Friday after school until Sunday at 7 p.m. The report further recommended that the schedule be varied to allow equal time with both parents when the children both entered elementary school. Shortly before trial, Ms. Pinto accepted the OCL’s recommendation of joint custody.

[9] Justice Moore found that both parties were “devoted parents” and that “there was not a shred of evidence to suggest that moving to the parenting model recommended by the OCL would adversely impact either child.” The residential schedule ordered by Moore J. was for the children to reside with Mr. Neves on Tuesdays from after school/daycare to Thursday morning and on alternating weekends from Friday to Monday. The parties have been following this parenting schedule.

[10] In the Order, Moore J. further stated: “When both children have entered elementary school in September 2018, the above schedule shall be varied to allow equal time with both parents.” Similarly, in his Endorsement of the same date, Moore J. stated as follows:

Having considered all relevant factors in s. 24 of the Children’s Law Reform Act it is my view that the OCL recommendations should be embraced and equal parenting time going forward from the time that Nathan enters elementary school is ordered to commence in September 2018 upon Nathan attending elementary school.

In the interim, a schedule similar to the schedule recommended by the OCL along with the decision making final say terms associated with them is ordered.

[11] The Order also provided for an equal division of all holidays and breaks, including March break. The Order stated that commencing in 2018, the children would reside with each parent in alternating weeks during the summer vacation, with additional terms regarding vacation with each parent. The parties have followed an alternating week schedule during the summers of 2018 and 2019.

[12] Justice Moore ordered that Mr. Neves pay Ms. Pinto spousal support at the mid-range of the Spousal Support Advisory Guidelines (SSAG) of $346 per month and provided for a review of spousal support when the parties moved to an equal parenting schedule. Mr. Neves continues to pay spousal support and no review has taken place, despite having been ordered to occur in September 2018.

[13] The parties dispute the meaning of the terms of the Order. Mr. Neves submits that he has been compelled to bring this motion because Ms. Pinto has refused to move to equal parenting time and has failed to provide financial disclosure to enable a review of spousal support. Ms. Pinto maintains that the existing schedule provides for equal parenting time and that Mr. Neves has failed to demonstrate a material change.

Issues

[14] The issues to be determined in this proceeding are as follows:

(a) Whether the parties have equal parenting time and if not, whether equal time ought to be implemented; (b) Whether spousal support should be varied or terminated and, if so, from what date; (c) Whether the Respondent should be ordered to pay child support and, if so, in what amount; (d) Whether either party owes the other retroactive child support and, if so, how much; and (e) Whether the Applicant owes the Respondent for retroactive section 7 expenses and, if so, how much is owed.

[15] The following additional matters were at issue in this proceeding but have been resolved, wholly or in part:

(a) Travel and summer vacation; (b) Ongoing communication between the parties; (c) Life insurance to secure the parties’ respective child support obligations; and (d) The distribution of funds remaining in two joint accounts held by the parties.

Analysis

Parenting

Does the Existing Schedule Provide Equal Parenting Time?

[16] Ms. Pinto relies upon s. 29 of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, to argue that the Order should not be varied unless there has been a material change in circumstances that affect or is likely to affect the best interests of the children. Ms. Pinto’s position is that Mr. Neves has failed to meet the first step of the two-tiered test for variation set out by the Supreme Court of Canada in Gordon v. Goertz, [1996] 2 S.C.R. 27 (“Gordon”), which requires the moving party to demonstrate a material change in the child’s circumstances that was not foreseen or could not have been anticipated at the time of the original custody order.

[17] While Mr. Neves has brought a motion to change, the relief sought is not a change to the Order but rather that the terms of the Order be followed. Mr. Neves is not seeking to vary the Order as it relates to custody of the children. Rather, he is seeking to vary the parenting schedule to move toward equal parenting time, which was expressly contemplated by the Order. As such, I find that Mr. Neves is not required to demonstrate a material change in the children’s circumstances that was not or could not have been foreseen at the time of the Order: Andrews v. Andrews, [1999] 45 O.R. (3d) 577 (Ont. C.A.), at para. 35 (“Andrews”). The change that Mr. Neves seeks was provided for by the Order but has not been implemented.

[18] Therefore, the issue on this motion is not whether equal parenting time should be ordered. This was ordered after the first trial and was not appealed by Ms. Pinto. The issue is whether the equal parenting schedule contemplated by the Order ought to be implemented at this time.

[19] Both parties spent considerable effort in attempting to demonstrate that the existing schedule does or does not provide equal parenting time.

[20] Ms. Pinto adamantly maintains that the existing schedule is equal because each parent has the same number of overnights per week. She further submits that there are “discrepancies” in the Order, in that the September 2018 date was connected to Nathan’s full-time attendance in school, and Nathan was in school full-time from September 2016.

[21] To begin with, the terms of the Order are clear. The parties were to move to equal parenting time when Nathan entered elementary school, or in other words, Grade One. The Order says nothing about full-time attendance, and there is no error or discrepancy. At no time did Ms. Pinto seek to appeal, vary or clarify the Order to resolve what she perceived to be an ambiguity.

[22] Moreover, Moore J. clearly stated that the schedule ordered, which was consistent with the OCL recommendation, [1] was for “the interim”, until September 2018, when equal parenting time would commence. Justice Moore thus drew a clear distinction between the schedule ordered during the interim period and the equal parenting time that was to commence in September 2018. If the interim schedule provided equal parenting time, the provision regarding the move to equal parenting time in September 2018 would be meaningless.

[23] While the current schedule provides each parent with the same number of days per month and overnights per week, Ms. Pinto has the children for five consecutive days on alternating weeks, while Mr. Neves does not have the children for more than three consecutive days. In addition, since Mr. Neves’ time begins after school, Ms. Pinto has greater time with the children when they have a P.A. Day, which are generally on Fridays, or when they are home sick from school. For example, if one of the children misses school on a Tuesday, they would not be with Mr. Neves during the day, but only after school. While this is difference is not significant, it simply serves to show that the existing schedule is not the equal parenting regime contemplated by the Order.

[24] When specific unequal aspects of the existing schedule were put to her in cross-examination, Ms. Pinto refused to acknowledge that the schedule does not provide for equal parenting time. Consistent with her position that the current schedule is equal, Ms. Pinto does not oppose a 50/50 schedule. Despite insisting that the existing schedule is equal, however, when Ms. Pinto was asked if she would switch schedules with Mr. Neves, she said that she would not. If the parties truly have equal parenting time, she would have no difficulty switching.

[25] Mr. Neves submits that now that the children are older, an alternating week schedule would be appropriate to achieve equal parenting time. Mr. Neves testified he and Ms. Pinto have different parenting styles, and an alternating week schedule would involve less frequent adjustments by the children. Mr. Neves also expressed concerns that he does not receive information that is generally sent home from school with the children on Mondays and that Ms. Pinto does not tell him about extracurricular activities that take place on days when the children are not with him. This would be minimized if had the opportunity to have the children in his care every day of the week.

[26] Ms. Pinto submits that no change should be made, since the views and preferences of the children have not been ascertained. At trial, Ms. Pinto testified that both children are reading below grade level and are receiving counselling for mental health issues. Ms. Pinto also stated in her affidavit that both children have told her “I hate my life.” Before this motion, Ms. Pinto had never raised such issues with Mr. Neves, who has not observed signs of distress in his children. While Ms. Pinto indicated no special needs in her Form 35.1 Affidavit in Support Claim for Custody or Access dated January 28, 2019, she then indicated the contrary on a subsequent Form 35.1 dated July 26, 2019. The children are currently receiving counselling. Other than her own opinion, Ms. Pinto adduced no evidence to suggest that an alternating week schedule would negatively impact the children. Ms. Pinto concedes that Mr. Neves is a good and loving father and that she has no concerns about the children’s wellbeing when they are in his care.

[27] As noted above, the OCL conducted a thorough investigation before the first trial and an order for joint custody and equal parenting time beginning in September 2018 was made based on the OCL’s recommendations. No change to custody is being sought. The adjustment that is being sought is not significant and is entirely consistent with the Order and the OCL’s recommendations. Other than Ms. Pinto’s own views, no expert or other evidence regarding any potential impact on the children was provided. Ms. Pinto has not satisfied me that the views and preferences of the children must be revisited at this time: see Gordon, at para. 49.

[28] In opposing an alternating week schedule, Ms. Pinto raises the fact that the children have frequently been late for school when they are in Mr. Neves’ care. During the 2017-18 school year, the children were late 47 to 49 times, of which 42 times were when the children were dropped off by Mr. Neves, who lives further away from the school than Ms. Pinto. As no information was provided for this past school year, it is unclear whether lateness remains a problem. It is expected that each parent will take the children to school on time irrespective of the schedule or in whose care they are. Being in the same parent’s home every day for a week may help establish a more predictable and consistent daily routine that could assist with punctuality.

[29] Ms. Pinto also submits that an alternating week schedule would cause difficulty with her work because she currently arranges to arrive at work later on days when she has to drop the children off at school and works later to make up the time when she does not have the children. Ms. Pinto has provided no specific evidence as to why she currently has flexibility in her work hours but would not be able to retain that flexibility if the schedule changed to an alternating weekly schedule. She provided no evidence of any policy or inquiries she has made with her employer. Mr. Neves’ position is that if before-school care is required as a result of an alternating week schedule, the parties should pay their proportionate share.

[30] Ms. Pinto simply resists any change to the existing schedule. She has failed to provide any alternative suggestions to an alternating week schedule for equal parenting time that would be more suitable to the children or more workable with her job. Ms. Pinto’s position is inconsistent with the terms of the Order, which contemplated that the schedule would be revised to allow parenting time to be shared more equally.

[31] An alternating week schedule would provide for equal parenting time. Both Ms. Pinto and Mr. Neves testified that an alternating week schedule worked well in the summers of 2018 and 2019. The children are older now and fewer transitions would be preferable. Moreover, if both parents have the children every weekday, they will have an equal opportunity to receive information from the school and attend extracurricular activities regardless of what day of the week those activities take place. In the circumstances, I see no reason not to order an alternating week schedule.

[32] Ms. Pinto seeks to delay any change until September 2020. She submits that since the children are currently not used to going more than five days without seeing her, any change during the school year would be disruptive to the children. The request to begin the schedule in September 2020 disregards the fact that the parties follow an alternating week schedule in the summer. At this stage, as a result of the current pandemic, the children are not physically attending school. This situation is unlikely to change in the immediate future. As a result, there is no reason to delay the implementation of an alternating week schedule.

[33] Accordingly, the parties shall follow an alternating week schedule to commence on Friday May 29, 2020, with transitions to take place on Fridays after school or at 5:00 p.m. when the children are not attending school.

Should the Applicant be Awarded Additional Time with the Children?

[34] Mr. Neves seeks additional time with the children to make up for lost time from September 2018 when the equal parenting regime was to come into effect. He proposes five weeks to be taken at any time upon written notice at least 30 days in advance to Ms. Pinto.

[35] Equal parenting time was to commence over a year and a half ago. Mr. Neves was compelled to bring this motion because Ms. Pinto refused to accept the terms of the Order and move toward an equal parenting schedule. Not only did Ms. Pinto’s refusal to agree to an equal parenting schedule result in a loss of time with the children on Mr. Neves’ part, it was also in disregard of a court order.

[36] Nonetheless, since parenting time was shared almost equally, except as described with respect to P.A. days and sick days, it is unlikely that the children lost five weeks of time with Mr. Neves. Therefore, Mr. Neves shall have make-up time with the children for a total of one week to be taken at a time of his choosing upon 30 days advance notice in writing to Ms. Pinto. The make-up time shall be taken by December 31, 2021, after which it will no longer be available.

Which Parent Should be Custodian of Documents?

[37] The Order required that the children’s health cards and medications pass between the parties’ households with the children.

[38] In this motion, Mr. Neves seeks a term authorizing him to hold the children’s documents because Ms. Pinto has refused to provide him with documents, including the children’s health cards.

[39] Ms. Pinto has admitted that she failed to comply with the Order in respect of the health cards but justifies this on the basis that the school would not allow important documents, such as health cards, to be brought to school with them. This contradicts Ms. Pinto’s evidence that she sent the children’s completed passport applications in their school bags with them for Mr. Neves’ signature. Ms. Pinto took the position that Mr. Neves should accept notarized copies of the children’s health cards but has yet to provide those copies. On one occasion, Mr. Neves had to take Layla to the hospital. Ms. Pinto had to meet him there because he did not have Layla’s health card.

[40] Ms. Pinto also relies on the fact that under the Order, she has final decision-making authority relating to the children’s health and takes them to all their medical appointments, so she ought to keep the health cards. This does not necessarily follow. The Order that the health cards pass between the two households was made at the same time as the Order giving Ms. Pinto final decision-making authority relating to the children’s health. Moreover, having final decision-making authority about the children’s health does not mean that only Ms. Pinto can take the children to their medical appointments. Mr. Neves states that he has repeatedly requested advance notice of the children’s medical and dental appointments so that he too could attend. Ms. Pinto admitted that she has prevented Mr. Neves from attending any appointments by failing to provide him with the information. Ms. Pinto justified this on the basis that this would avoid conflict between them at the appointment.

[41] Ms. Pinto also refused to provide Mr. Neves with the name of the children’s dentist. Even when asked for that information during the course of this proceeding, Ms. Pinto responded that Mr. Neves should obtain this information from his employee benefits insurer, which Mr. Neves was unable to do. Ms. Pinto finally provided the name of the children’s dentist on December 23, 2019.

[42] Similarly, when Mr. Neves requested copies of the children’s birth certificates for the purposes of maintaining their health coverage under his employee benefit plan, Ms. Pinto failed to provide them. On cross-examination, Ms. Pinto attempted to justify her failure to provide the birth certificates by citing the lateness of Mr. Neves’ request and his failure to provide “context.” However, the request was made eight days before the deadline and the letter from Mr. Neves’ employer requiring the birth certificates was attached to Mr. Neves’ e-mail message to Ms. Pinto requesting the birth certificates. The letter stated: “IMMEDIATE ACTION REQUIRED” (emphasis in original) which ought to have made clear to Ms. Pinto that it was important to respond. Not only was there no reasonable basis for her failure to provide the birth certificates, it was contrary to the children’s interest in having their health coverage maintained.

[43] The evidence demonstrates a consistent pattern on Ms. Pinto’s part of withholding information regarding the children from Mr. Neves. The Order stated that both parents agreed that when the children have a school or extracurricular activity on days that the other parent has the children, both parents should be welcome to attend the event. Contrary to this provision, Ms. Pinto did not provide Mr. Neves with information about extracurricular activities in which the children were registered. For example, Mr. Neves did not know that the children were registered in skating until receipts were provided for this motion. In cross-examination, Ms. Pinto admitted that she does not provide this information so that Mr. Neves cannot attend.

[44] Mr. Neves also testified that Ms. Pinto refused to share the children’s clothing and belongings, insisting that he purchase a second set of everything for the children to use when they are with him. Ms. Pinto did not deny this but stated that it was impractical for them to share items like bicycles and helmets. Ms. Pinto disputed that Mr. Neves had purchased a second set of the children’s school uniforms.

[45] When asked in cross-examination about the withholding of documents and information, Ms. Pinto testified that this is a “game” that she and Mr. Neves play, with each attempting to “outdo” the other. Based on the evidence before me, only Ms. Pinto is playing the game. She has not identified specific examples of Mr. Neves behaving similarly toward her. The game of keeping information from the children’s father is irrational and contrary to the children’s best interests. It cannot be attributed to any rational purpose, but only pettiness or spite on Ms. Pinto’s part. The refusal to provide the children’s birth certificates when a failure to do so would result in the loss of their health coverage is a stark example.

[46] Ms. Pinto could not show any particular reason why she should hold the children’s documents, other than the fact that she had done this in the past, including when the parties were together. Ms. Pinto has shown, however, that she will use every opportunity to cause problems for Mr. Neves, even when it is contrary to the children’s best interests. Accordingly, Mr. Neves shall be the custodian of all of the children’s important documents, including but not limited to their health cards, birth certificates and passports. Ms. Pinto shall make notarized copies of the birth certificates and health cards for herself and deliver the originals to Mr. Neves within 30 days of this order. If the originals of any documents are provided to Ms. Pinto for any purpose, she shall return them to Mr. Neves within 48 hours of her obtaining the documents.

[47] The parties have both agreed to sign and complete passport applications for the children and to share the costs. They could not agree on who should apply for and hold the passports. Based on my determination above, Mr. Neves shall apply for and hold the children’s passports and shall provide them to Ms. Pinto when required for travel. Ms. Pinto shall return the children’s passports to Mr. Neves within 48 hours of their return to Ontario, or within 48 hours of any cancellation of travel plans.

Birthdays, Vacation and Travel

[48] The parties have agreed to vary the Order in respect of the children’s birthdays as follows. If a child’s birthday falls on a weekend, the children will spend four hours from 10 a.m. to 2 p.m. or as otherwise agreed with the parent who does not have the children in their care.

[49] In respect of summer vacations, the parties agree that they will alternate each year in having first choice in selecting their desired vacation weeks, with Ms. Pinto having first choice in 2020 and even-numbered years thereafter and Mr. Neves having first choice in odd-numbered years.

[50] The parties disagree as to when they are required to advise the other of their chosen weeks. The parent with first choice shall advise the other parent of their choice by January 31 and the parent with second choice shall advise the other parent of their choice by February 15.

[51] The Order was silent on the issue of travel with the children. Both parties agree to the following:

• Either parent may travel with the children to either the United States or Portugal for a period not exceeding two weeks without the written consent of the other party;
• The children will not spend more than two consecutive weeks in the care of either parent;
• For any other travel outside of Canada, advance consent in writing is required and consent is not to be unreasonably withheld;
• The parent requesting to travel shall provide a travel consent letter for the other parent to sign and return no later than 7 business days after the request for a travel consent has been made. Any fees associated with the consent to travel letter shall be borne by the parent with whom the children will be travelling; and
• The parent who is travelling is required to provide an itinerary 14 days in advance of the travel, and as soon as possible if the travel is booked less than 14 days in advance.

[52] In 2017, Mr. Neves sought Ms. Pinto’s consent to allow him to travel to Portugal to with the children to visit extended family. Ms. Pinto ignored the request, resulting in Mr. Neves’ inability to book the trip in time to travel to Portugal with the children. Mr. Neves seeks a term dispensing with consent in the event that Ms. Pinto fails to respond. In addition, while Mr. Neves seeks two consecutive summer weeks irrespective of travel to Portugal, Ms. Pinto seeks to limit this for the purpose of travel to Portugal or the United States. [2]

[53] It is unfortunate that the children missed the opportunity to travel to Portugal with their father to visit extended family. This would have been a valuable experience for them, given that the children and both parents are of Portuguese heritage. Ms. Pinto provided no reason for not allowing the children to go to Portugal, and her failure to respond was likely part of the “game.”

[54] Accordingly, in respect of travel, taking into consideration the agreed to and disputed terms, the following is ordered:

• Either parent may travel with the children to either the United States or Portugal for a period not exceeding two consecutive weeks without the written consent of the other party;
• For any other travel outside of Canada, the advance written consent of the non-travelling parent is required, which consent shall not be unreasonably withheld;
• The travelling party shall request the consent of the non-travelling parent a minimum 30 days in advance of the scheduled trip, unless otherwise agreed;
• In the event that the non-travelling parent fails to consent or respond within 14 days of the request, such consent shall be dispensed with;
• During the summer vacation, the children will not spend more than two consecutive weeks in the care of either parent;
• The parent who is travelling shall provide an itinerary, including flight numbers and times, address where the children will be staying, and a telephone number where the children may be reached, 14 days before the departure date, and, if the travel is booked less than 14 days in advance, as soon as possible;
• The travelling parent shall provide a travel consent letter for the other parent to sign, which the non-travelling parent shall return no later than 7 business days after the request for a travel consent has been made; and
• If the non-travelling parent fails to provide a travel consent letter within 7 business days of the request, the consent shall be dispensed with. Any fees associated with the consent to travel letter shall be borne by the parent with whom the children will be travelling.

Spousal Support

[55] At the first trial, Moore J. found that both parties had a “traditional two working parents relationship” and that “both parties were capable of being financially self-supporting and sharing in meeting the needs of their children.” The Order required that Mr. Neves pay spousal support at the mid-range of $346 per month commencing April 1, 2016 for an indefinite duration, “with a review to occur when Nathan enters grade one in September 2018 when the family moves to 50/50 parenting.” I find nothing in Moore J.’s reasons to support Ms. Pinto’s submission that spousal support was ordered on a compensatory basis.

[56] It is worth noting that spousal support was ordered on the basis that the parties did not have 50/50 parenting time and that the children were living primarily with Ms. Pinto.

[57] Mr. Neves seeks the termination of spousal support effective September 1, 2018. In doing so, he requests that this court impute an additional $28,000, or alternatively, $14,000, per year in income to Ms. Pinto.

[58] As is the case with the parenting schedule, while this is a motion to change, the Order contemplated a review of spousal support in September 2018. As a result, Mr. Neves is not required to demonstrate a material change to justify a varying of the Order: Andrews, at para. 35.

[59] Pursuant to s. 33 (i) of the Family Law Act, R.S.O. 1990, c. F.3, an order for spousal support should: (a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse; (b) share the economic burden of child support equitably; (c) make fair provision to assist the spouse to become able to contribute to their own support; and (d) relieve financial hardship, if this has not been done by orders under the other parts of the Act: Family Law Act, s. 33(8).

[60] The factors relevant to determining the amount and duration of support for a spouse are listed in s. 33(9) of the Act and include: the parties’ assets and means, the assets and means they are likely to have in the future, the parties’ age and health, the spouse’s capacity to contribute to their own support and the other spouse’s capacity to provide support, the length of time the parties cohabitated, the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation, and the effect on the spouse’s earnings and career development of the responsibility of caring for a child.

The Respondent’s Failure to Disclose Financial Information

[61] In his Endorsement, Moore J. drew adverse inferences against Ms. Pinto for her “many and serious breaches” of her obligation to produce appropriate financial disclosure in a timely fashion. Justice Moore itemized 17 examples of Ms. Pinto’s failures to disclose or follow the rules. He imputed income of $14,000 to Ms. Pinto, for a total income of $65,000, because of her failure to disclose assets and income and due to her intentional underemployment. Justice Moore declined to strike Ms. Pinto’s claim for spousal support, however, because “[t]o do so would have the immediate and adverse effect of visiting the consequences of her sins upon the children.”

[62] Mr. Neves seeks to have income imputed to Ms. Pinto because of her failures to disclose and her alleged under-employment, which will be addressed further in these reasons. At trial, extensive evidence was adduced to demonstrate that Ms. Pinto has again failed to be forthcoming about her income and assets. I find that Ms. Pinto has failed to make full disclosure as further detailed below.

Failure to provide annual financial disclosure required by the Order

[63] The Order required that each year the parties exchange updated income disclosure within 30 days of the anniversary of the Order. Mr. Neves alleges that contrary to the Order, Ms. Pinto has never provided any disclosure of her income. Ms. Pinto alleges that Mr. Neves also consistently failed to provide his disclosure within 30 days of the anniversary of the Order.

[64] Ms. Pinto testified that she sent her financial disclosure to Mr. Neves in an email dated September 4, 2017, in which she requested Mr. Neves’ disclosure. Mr. Neves and Ms. Pinto have different versions of the same email message. The version produced by Ms. Pinto includes a further sentence stating, “My paperwork is attached.” Mr. Neves alleges that Ms. Pinto’s version of the email message is doctored and that she subsequently added the sentence to give the appearance of having made disclosure. I need not find whether the email was doctored, however, because it is clear from the message that there were no attachments. In addition, after receiving the September 4, 2017 email message, Mr. Neves followed up twice asking Ms. Pinto for her financial disclosure. If he had received the documents when Ms. Pinto claims that she sent them, he would have had no need to keep requesting them.

[65] Ms. Pinto’s explanations for the absence of the financial disclosure are unconvincing. She testified that she no longer had the email message or attachments because her Gmail account was compromised approximately three months before trial. This does not explain why she does not have a saved copy of the attachment. Ms. Pinto then tried to explain the absence of a saved copy of the attachment by stating that she could have taken a photograph with her mobile phone. When asked whether the photograph was still on the mobile phone, Ms. Pinto responded that she no longer has the same phone. Even though Ms. Pinto knew that her annual disclosure was an issue, none of this had ever been mentioned before trial.

[66] To date, Ms. Pinto has failed to provide her income tax return for 2016. Ms. Pinto emailed her accountant asking for the information once and followed up once. No response was in evidence. While Ms. Pinto provided a notice of reassessment for 2016, this does not show the detail that her tax return would, including whether she included spousal support in her income. [3] Ms. Pinto testified that she has been unable to obtain the information from the Canada Revenue Agency (“CRA”). When asked why she did not provide a copy of her T4 for 2016, Ms. Pinto responded that she had not been asked for it. At the first trial, Moore J. found that Ms. Pinto’s failure to provide her 2015 T4 was “incredible and cannot be condoned.” Ms. Pinto cannot credibly claim now that she did not know that she had to provide her T4. If she could not obtain her 2016 tax return, Ms. Pinto ought to have provided the documentation available to her.

[67] Similarly, Ms. Pinto did not provide Mr. Neves with disclosure related to her 2017 income as required by the Order. Ms. Pinto claims that she sent her information to Mr. Neves in an email dated July 11, 2018. However, that email message is addressed from Ms. Pinto to herself. No further email was provided to show that the information was sent to Mr. Neves.

[68] Mr. Neves was late in providing his financial disclosure to Ms. Pinto for 2016 and 2017. He explained that he misunderstood that the 30-day period ran from the date the Order was signed and entered, which was on June 9, 2016, as opposed to the date the Order was made on March 18, 2016. This does not explain the late disclosure in September 2017. In any event, Mr. Neves provided disclosure while Ms. Pinto did not.

Failure to comply with a consent order for disclosure

[69] The parties consented to an order dated February 13, 2019 for the disclosure of documents relevant to this motion.

[70] Pursuant to the consent order, Ms. Pinto was required to provide a copy of her application for the refinancing of her home, “and all related documents, including appraisals.” The only document that Ms. Pinto produced in relation to the refinancing was a mortgage disclosure statement dated February 21, 2018. Only two out of seven pages were produced. She failed to provide any other information, including any application or appraisals. When asked about this on cross-examination, Ms. Pinto testified that no application existed because she simply met with a CIBC representative and answered questions. It is unlikely that the refinancing was approved without any application or documentation. Even if the application was completed verbally, CIBC would have a record of her responses. Ms. Pinto stated that there was no appraisal for the refinancing and that she did not have access to the appraisal that was done for the initial mortgage application. Ms. Pinto did not seek to obtain either the application or appraisal from CIBC, even though she had consented to the terms of the order requiring her to provide those documents.

[71] Ms. Pinto provided annual mortgage statements for 2016 to 2018 as required by the consent order, but in that case as well, provided only the first of four pages.

[72] Under the consent order, Ms. Pinto was also required to produce monthly bank statements for all personal and joint accounts from 2016 to present, except for the accounts held jointly with the Applicant. Ms. Pinto disclosed only one account other than the two accounts held jointly with Mr. Neves. Ms. Pinto provided statements for May 2018 to January 2019 for an account that she claims was opened in May 2018. She also provided a “Bankbook Reconstruction Report” for another account for January 1, 2016 to December 31, 2018. The entries begin on March 31, 2016 and end on February 8, 2018. The report contains considerably less detail than bank statements; for example, it does not show the source of any deposits or to whom any payments or transfers are made.

[73] In addition, even though the second account was opened in May 2018, Ms. Pinto has disclosed only one bank account on her financial statement dated November 26, 2019.

[74] On cross-examination, Ms. Pinto was asked why, from March 2017 to November 2018, her pay from CIBC was not reflected in the bank statements that she disclosed. Ms. Pinto first suggested that CIBC may have paid her by cheque. When asked whether she was being paid by cheque to avoid garnishment of her account, Ms. Pinto denied receiving cheques from CIBC and said it was the Family Responsibility Office (“FRO”) that paid her by cheque. When asked where her pay was being deposited during that period, Ms. Pinto responded: “I don’t have any other account in my name.” It was only after numerous further questions that Ms. Pinto admitted that her CIBC pay was being deposited into an account held in the name of her mother, Maria Pinto.

[75] After the first trial, Ms. Pinto was ordered to pay $50,000 in costs to Mr. Neves, at a rate of $5,000 per year. In 2016, the amount due was garnished from her bank account. [4] In 2017 and 2018, Ms. Pinto paid the amounts owed before the funds had to be garnished from her account. While Ms. Pinto denied that she opened a bank account in her mother’s name to defeat enforcement of the costs order, she testified that the garnishment impeded her ability to feed her children and pay the bills. However, avoiding garnishment was not the sole reason for diverting her pay to her mother’s account, since there was no garnishment in 2017 and 2018. Ms. Pinto has provided no satisfactory explanation for diverting her pay to her mother’s account, which would in any event be difficult to justify.

[76] When challenged about her failure to disclose the account in her mother’s name, Ms. Pinto responded that it was not her account and was not in her name and that she was only using it to have access to money. This is no excuse. Ms. Pinto admitted that she had control over the account and that she used it approximately once a month. It is clear from the evidence that she could readily transfer funds from the account to herself. Ms. Pinto failed to provide any documentation relating to an account that was for all intents and purposes her own. While she testified that the account in her mother’s name has a zero balance, there is no evidence on which this could be verified.

[77] In addition, Ms. Pinto’s 2018 tax return shows “other employment income” of $2,081. Despite being required to produce all attachments and schedules to her tax returns under the terms of the consent order, Ms. Pinto produced no the documentation associated with that income. On cross-examination, Ms. Pinto testified that she did not know what schedules and attachments were. However, she had agreed to the consent order requiring them to be produced without raising any issue. At all times, Ms. Pinto was represented by counsel. Ms. Pinto maintained that she had no other employment income but that she had to check her paperwork. On re-examination, Ms. Pinto produced a blank T4PS which would correspond to the line on the tax return where the income is reported. The amount appears to be from an employee share plan. Ms. Pinto was aware that she was required to produce the T4PS but failed to do so.

[78] In May 2018, Ms. Pinto received a tax refund of $3,789. She was asked on cross-examination where the refund was deposited, because it was not reflected in the bank statements that she provided. A subsequent transfer on May 23, 2018 of $3,000 from Maria Pinto’s account suggests that it was deposited into that account. Based on Ms. Pinto’s testimony, it appears that the Universal Child Care Benefit (“UCCB”) of approximately $480/month was also deposited into Maria Pinto’s account.

[79] Ms. Pinto also admitted on cross-examination that she previously had joint accounts with her brother and father. In her financial statements for the first trial, Ms. Pinto listed seven bank accounts, including two accounts held jointly with Mr. Neves. In this proceeding, Ms. Pinto did not disclose any information about the accounts held jointly with her brother, father or mother on the basis that she had removed her name from those accounts so that they would not be garnished. Despite admitting that they were still jointly held until some time in 2016, Ms. Pinto failed to disclose any information about the accounts or to support her testimony that her name was removed.

[80] Ms. Pinto has demonstrated a reluctance to be forthright and truthful about her income and assets generally. For example, in her most recent financial statement, Ms. Pinto continues to value her home at $551,000, which was the purchase price in 2015. This is despite the fact that she obtained a letter from a real estate agent in February 2019 who valued the home at $700,000 to $750,000. [5] This undervaluation of her home has a significant impact on her net worth, which her financial statement shows as $104,769. The equity in her home is from $149,000 to $199,000 more than she has stated. Ms. Pinto has amounts deducted from her pay and put into an investment account and her tax return shows dividend and interest income. However, other than the employee share plan, no information regarding her investments was disclosed in the financial statement.

[81] In response to Mr. Neves’ statement regarding unexplained deposits into her account, the only explanation that Ms. Pinto provided in her affidavit sworn December 23, 2019 (the “Pinto Affidavit”), was that the FRO provides her support payments by cheque, which she then deposits into her account. The FRO payments are identifiable because they are each for $961. Ms. Pinto insisted that deposits made by her were cheques, notwithstanding that the FRO generally requires recipients to receive payment by direct deposit.

[82] Ms. Pinto’s explanation, however, is incomplete. The Pinto Affidavit was silent about numerous other deposits for hundreds of dollars. Based on her admission at trial that her pay was deposited into an account in her mother’s name, it now appears that some of those transactions were to transfer her pay from that account to her own account. However, even then, there are unexplained deposits into Ms. Pinto’s account. It was up to Ms. Pinto to identify the source of the deposits and transfers to her account.

[83] In addition, the Pinto Affidavit states that she was “on track to earn $71,000 in 2019” and attaches a pay stub for the period ending November 16, 2019. By that date, however, she had received her annual bonus but failed to disclose it. On cross-examination, Ms. Pinto admitted that she had received a bonus of $8,489 by the time she swore her affidavit. Ms. Pinto had no explanation as to why she did not provide a more recent pay stub, other than to say that she provided what was available. This is not credible because by December 23, 2019, there would have been at least two further pay periods. In all likelihood, Ms. Pinto did not provide a more recent pay stub because it would show her year to date income as higher than $71,000. When she swore her affidavit, she also knew that her income would be higher than the previous year, which was approximately $77,000.

[84] Ms. Pinto claimed to have numerous emails between herself and Mr. Neves in which she made her annual financial disclosure. When asked for further detail about the disclosures that she has made, Ms. Pinto frequently stated that she would have to go back and check. Having been through a trial where she was found to have failed to disclose relevant evidence, Ms. Pinto was fully aware of her obligation to produce relevant documents before trial. She knew or ought to have known that all the checking was to be done before trial.

[85] Contrary to Ms. Pinto’s insistence that she has disclosed all documents required under the Order and the consent order in this proceeding, her failure to provide true and accurate information regarding her income and assets has been persistent and ongoing. Even at trial, and despite the fact that she has regular employment income, it was surprisingly difficult to obtain an accurate picture of Ms. Pinto’s income. Ms. Pinto displayed an incomprehensible inability to answer questions in a straightforward manner, bringing her credibility into question. On cross-examination, Ms. Pinto was wary and evasive about amounts deposited into and paid from her accounts. As was the case before Moore J., Ms. Pinto did not disclose any information about her line of credit even though she maintains that she must use of it to pay her bills. There are numerous other examples of failures to disclose by Ms. Pinto that mirror her conduct in the first trial. Unfortunately, despite the negative consequences to her, Ms. Pinto did not draw any lessons from that proceeding.

[86] Parties to family law proceedings are required to make full and frank disclosure about their finances so that the proper assessments and orders can be made: see e.g. Family Law Rules, O. Reg. 114/99, r. 13(6) and (17). Opening an account in someone else’s name for the purpose of avoiding disclosure and execution is antithetical to this. Whatever the purpose, this conduct is dishonest and improper. It is all the more surprising given that Ms. Pinto is employed by CIBC in a role where she is tasked with preventing fraud.

Should Income be Imputed?

[87] Pursuant to s. 19(1) of the Child Support Guidelines, O. Reg. 391/97, the court may impute income to a parent or spouse as it considers appropriate in the circumstances, including when the parent is intentionally under-employed or has failed to provide information when under a legal obligation to do so, and when it appears that income has been diverted which would affect the level of child support to be determined under the Guidelines: Child Support Guidelines, s. 19(1)(a), (d) and (f).

[88] The test for imputing income for child support purposes applies equally for spousal support purposes: Rilli v. Rilli, [2006] O.J. No. 4142 (Sup. Ct.). Based on Ms. Pinto’s failures to disclose information that she is legally obligated to provide, I find this an appropriate case to impute income to Ms. Pinto. Ms. Pinto’s failures to disclose and inability to be forthright about her finances lead to an inference that she has undisclosed income and/or assets.

[89] Not only was Ms. Pinto statutorily obligated to produce complete financial disclosure, there were court orders that specifically required her to do so. Parties are not free to disregard court orders. Court orders are to be obeyed. Non-compliance with court orders must have consequences: Cirinna v. Cirinna, 2018 ONSC 4831, 14 R.F.L. (8th) 138, at para. 22; Taylor v. Taylor, [2005] O.J. No. 4593 (Sup. Ct.), at para. 3.

[90] Mr. Neves also submits that, as Moore J. found at the first trial, income should be imputed to Ms. Pinto for her intentional underemployment: see Child Support Guidelines, s. 19(1)(a). At the first trial, Moore J. found that Ms. Pinto voluntarily reduced her work schedule to 75 percent and took a corresponding decrease in income.

[91] Mr. Neves submits that while Ms. Pinto is now working full-time, she takes unpaid vacation days, in addition to her four weeks of paid vacation per year, for school holidays and when the children are sick. Mr. Neves argues that the unpaid vacation results in a loss of income.

[92] On this motion, Ms. Pinto testified that she does not use daycare during the summer because she “leverages” her vacation time to spend with the children. She further testified that if one of the children is sick, she can occasionally work from home or use her one personal day per year. Ms. Pinto stated that in addition to four weeks of paid vacation per year, she could take up to one week of unpaid vacation in 2018 and two weeks in 2019. Ms. Pinto had difficulty explaining how this works and denied that there would be a corresponding decrease in her income if she took the unpaid vacation weeks. Ms. Pinto testified that she took two days of unpaid vacation in 2019 over the Christmas holidays. No evidence was provided as to the number of unpaid days taken in 2018.

[93] Four weeks of paid vacation per year would appear to be insufficient to cover both the summer holidays and other holidays throughout the school year, as well as sick days and P.A. days. Even over the summer, four weeks would not cover all the time she has the children, since the school summer holiday is more than eight weeks. It is likely that Ms. Pinto avails herself of the unpaid vacation to cover the additional days. Based on the information in her final paystub for 2019, there is a cumulative amount for “elected vacation contributions” of $1,304.16 and a “reconciliation” of $127.73. This would support Mr. Neves’ position that there was a corresponding loss of income for unpaid vacation of $1,176.43.

[94] Nonetheless, Mr. Neves has not satisfied me that Ms. Pinto is intentionally underemployed to the extent that income should be imputed. The difference in her income resulting from the use of unpaid vacation time is not significant. If Ms. Pinto did not use her unpaid vacation time, the parties would have to incur childcare expenses, which would further decrease the difference in income. Accordingly, I decline to impute income for intentional under-employment.

[95] Based on the foregoing considerations, I determine it appropriate to impute income to Ms. Pinto for her failures to disclose but not for intentional underemployment. Justice Moore imputed $14,000 per year in income to Ms. Pinto based both on her intentional underemployment and her failures to disclose. As a result, I find it appropriate to impute a lower amount for the failures to disclose, of $10,000 per year, to Ms. Pinto, beginning in 2018. This would bring her total income for 2019 to $89,703.

Should Spousal Support be Continued?

[96] The parties were together for six years and have now been separated for almost six years. The basis for spousal support was non-compensatory. Ms. Pinto has consistently been promoted at CIBC and her income has increased significantly since the separation. Her base salary when the parties separated in 2014 was $48,000. By 2019, her total income increased to $79,703 excluding spousal support. There is no evidence that she missed out on promotions or increases in salary as a result of having taken two maternity leaves during the relationship. Ms. Pinto has a house in Etobicoke valued at $700,000 to $750,000.

[97] Moreover, despite the parents’ almost equal time with the children, Ms. Pinto has had the advantage of receiving full child support since March 2016. Ms. Pinto also received all child-related benefits, such as the UCCB of approximately $480 per month and the Child Tax Benefit (“CTB”).

[98] By contrast, Mr. Neves was paying full child support, despite having the children more than 40 percent of the time. Mr. Neves was also subject to the over-garnishment of his wages because Ms. Pinto refused to acknowledge funds that he paid toward support outside of the FRO regime. It should also be noted that Ms. Pinto received interim spousal support of $900 per month from June 2015 to March 2016, but there was no retroactive adjustment of spousal support when support was reduced to $346 per month.

[99] Mr. Neves highlights the fact that he had to pay his legal expenses from the first trial but Ms. Pinto received the benefit of having ten years to pay the costs awarded to him at a rate of $5,000 per year. In 2016, Ms. Pinto failed to pay, which required that Mr. Neves commence enforcement proceedings, again at a cost to him.

[100] The unexplained transfers to Ms. Pinto’s bank account support an inference that she has undisclosed income and/or assets available to her. While Ms. Pinto claims that some of the funds are from her line of credit, she did not provide any documents in relation to the line of credit.

[101] Ms. Pinto is relatively young and self-sufficient. She has consistently received promotions and is developing an area of expertise at CIBC. Ms. Pinto invests approximately $352 monthly through a CIBC investment account. As Moore J. put it, her net worth is “robust” and, when the equity in her home is taken into account, is greater than Mr. Neves’ net worth. Ms. Pinto no longer needs spousal support to maintain the standard of living enjoyed by the parties at the time cohabitation ceased.

[102] Finally, Ms. Pinto has disregarded her disclosure obligations, even when required by orders of this court. Ms. Pinto argues that her failure to disclose financial information should not be taken into consideration because to do so would be unfair to the children and would punish them for her conduct. It is not appropriate for Ms. Pinto to seek to escape the consequences of her actions by alleging unfairness to the children. Based on her experience at the first trial, Ms. Pinto was well aware of the consequences of her obstructive behaviour. Ms. Pinto ought to have considered the consequences of her actions before trial. Nonetheless, she engaged in the exact same conduct. For example, Moore J. found that Ms. Pinto had failed to provide a T4. Notwithstanding her awareness that her tax returns and supporting documents had to be disclosed, Ms. Pinto claimed on cross-examination that she did not provide a T4 because she had not been asked for it. Ms. Pinto has displayed a repeated, persistent and deliberate disregard of the rules and court orders relating to financial disclosure.

[103] Ms. Pinto simply cannot be permitted to disregard such orders and rules and then plead hardship to her children to escape the consequences. Any hardship to the children does not result from the court orders made to address her failures to disclose, but from her own conduct and her inability to put aside her obstinacy in the interest of her children. I further note that Ms. Pinto compelled Mr. Neves to bring this motion, even though the matters at issue were addressed by the Order. This is at a significant cost to both of them and to their children.

[104] Taking into consideration all of the foregoing factors and the objectives of support, Ms. Pinto has failed to establish an ongoing need for spousal support. Spousal support is terminated effective June 1, 2020.

Child Support

[105] The Order required that, based on an income of $126,228 in 2016, Mr. Neves pay child support of $1,737 per month. This resulted in Ms. Pinto retaining 56.9 percent of the parties’ net disposable income, while Mr. Neves retained 43.1 percent.

[106] Section 9 of the Child Support Guidelines states:

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

(a) The amounts set out in the applicable tables for each of the spouses; (b) The increased costs of shared custody arrangements; and (c) The conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[107] Despite having the care of the children for almost 50 percent of the time, Mr. Neves has been paying full Table child support with no set-off.

[108] In September 2019, Ms. Pinto acknowledged for the first time that she had an obligation to pay the Table child support to Mr. Neves from August 1, 2019. The Pinto Affidavit concedes that child support should be adjusted retroactive to September 1, 2018. Despite her position that the parties have equal parenting time, she had previously refused to pay any child support.

[109] In Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217, at para. 32 (“Contino”), the Supreme Court of Canada stated that: “The underlying principle of the Guidelines is that ‘spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation[.]’” The Court set out, at para. 37, a two-part determination for the application of s. 9: first, determining whether the 40 percent shared custody threshold was met; and second, determining the appropriate amount of support.

[110] In this case, given Ms. Pinto’s position that the parties have equal parenting time and based on the existing schedule, there is no question that the 40 percent threshold has been met.

[111] Regarding the application of s. 9 of the Guidelines, the Supreme Court stated in Contino, at para. 51:

This is where discretion comes into play. The court retains the discretion to modify the set-off amount where, considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend.

[112] On the first factor under s. 9 of the Guidelines, based on Mr. Neves’ 2019 income of $146,000, he would be required to pay Table support of $2,030 per month. Based on Ms. Pinto’s 2019 income of $89,703, she would be required to pay Table child support of $1,347 per month. If the amount is set off in full, Mr. Neves would be required to pay Ms. Pinto $683 per month in child support. This would result in net disposable incomes of 46.5 percent for Ms. Pinto and 53.5 percent for Mr. Neves.

[113] Looking at the second factor under s. 9, the move to equal parenting time is unlikely to result in increased costs to either party because the increase in time is not significant and both parties gave evidence that the children are already well set up in both homes. In Mr. Neves’ case, the process of setting up the children in his home took place while he was paying full support to Ms. Pinto.

[114] The third factor to consider encompasses the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

[115] Ms. Pinto argues that an upward adjustment should be made to the set-off amount because Mr. Neves’ income is more than $66,000 higher than hers, and the children should have an equal standard of living in both homes.

[116] The parties have not prepared child expense budgets. In reviewing the financial statements of each party and on hearing the evidence from them regarding expenses, I accept that both parties have contributed to the costs associated with the children.

[117] Mr. Neves’ financial statement shows that he pays $965 per month in child-related expenses, including child care of $390 per month. However, Mr. Neves has admitted that he has not been contributing to child care since 2016. His monthly child-related expenses are thus $575 per month without child care. Mr. Neves pays $100 per month toward extracurricular activities.

[118] Ms. Pinto’s financial statement shows that she pays $914.16 per month in child-related expenses including child care of $396.92 per month, or $517.24 without child care. Ms. Pinto’s financial statement shows $225 per month toward the children’s activities, however, for the reasons stated further below, the amount is closer to $100 per month.

[119] Ms. Pinto has higher expenses for the children’s clothing at $200 per month, compared to $30 per month for Mr. Neves. Ms. Pinto pays $150 per month more in groceries. Both pay $50 a month in school fees and supplies. Both parties’ vehicles are paid for.

[120] As noted above, because of the value of her home, Ms. Pinto’s net worth is significantly higher than Mr. Neves’. [6] Ms. Pinto owns is a house in Etobicoke, while Mr. Neves owns a townhome in Mississauga. Ms. Pinto drives a 2015 Honda Pilot and Mr. Neves drives a 2006 Honda Civic.

[121] Ms. Pinto submits that if full set-off is ordered, this would result in a “cliff effect,” significantly reducing her support from $2,083 monthly, including spousal support, to $683 per month. Ms. Pinto fails to acknowledge that she had the benefit of full Table child support without any set-off for over three years, even though parenting time was shared almost equally. Based on the conditions, means, needs and circumstances of each spouse, I am not convinced that the children would suffer any decline in their standard of living in Ms. Pinto’s home.

[122] Taking all the factors into consideration, I find that it is appropriate to order child support in the amount of $683 per month to be paid by Mr. Neves to Ms. Pinto.

[123] The parties have agreed that life insurance available through their respective employers will serve as security for their respective future child support obligations. The children will be named the beneficiaries of both policies and an independent third party trustee will be named by each parent.

Retroactive Child Support

[124] Although Mr. Neves’ annual income increased since the Order, monthly child support was not adjusted to reflect the increase. Mr. Neves continued to pay $1,737 per month to the FRO as stipulated in the Order. Mr. Neves explained that he was reluctant to adjust the support and pay the additional amount to Ms. Pinto because in the past, when he paid Ms. Pinto directly, she later refused to acknowledge the payments, resulting in Mr. Neves’ wages being over-garnished by the FRO.

[125] Mr. Neves takes the position that Ms. Pinto should be disentitled to retroactive child support because of her failure to make full and frank disclosure. I decline to take the failures to disclose into account on the retroactive child support owing, as child support is for the children. Moreover, the failure to disclose has already been taken into account in imputing income.

[126] An adjustment is necessary to reflect the annual increases in Mr. Neves’ income, as well as Ms. Pinto’s support obligations from September 1, 2018. The table below represents the parties’ respective annual income during the relevant time period:

Year	Mr. Neves’ Income	Ms. Pinto’s Income	With Imputed Income
2016	$133,667	$62,508	$76,508
2017	$139,410	$65,908	$79,908
2018	$140,229	$77,024	$87,024
2019	$146,000	$79,703	$89,703

[127] In 2017, Mr. Neves ought to have been paying Table child support of $1,883 per month. [7] Based on the difference, he owes $1,752 in child support for 2017. In 2018, Mr. Neves ought to have been paying $1,953 per month. He owes $2,592 in child support for 2018. In 2019, Mr. Neves ought to have been paying $1,963 per month. He owes $2,712 in child support for 2019. For the first five months of 2020, Mr. Neves owes $1,465 in child support. The total retroactive child support owed by Mr. Neves for January 1, 2017 to May 31, 2020 is $8,521.

[128] In 2018, based on Ms. Pinto’s income of $79,908, her child support obligation was $1,209 per month from September 2018, for a total of $4,836 for 2018. Ms. Pinto also owes support for 2019 of $1,312 per month for a total of $15,744. For the first five months of 2020, Ms. Pinto owes $1,347 per month, for a total of $6,735. The total child support owed by Ms. Pinto for 2018 to 2019 is $27,315.

[129] Based on the foregoing, Ms. Pinto shall pay Mr. Neves retroactive child support in the amount of $18,794.

Special Expenses

Childcare Expenses

[130] Under the Order, special expenses under s. 7 of the Child Support Guidelines were fixed at $11,490 per year. This has not reflected the actual amount, since the children have not required full-time daycare since Nathan started school. The expenses have not been paid and have not been enforced by the FRO.

[131] The parties agree that the child care expenses from 2016-2019 have been paid as follows:

• 2016 - $8,850 gross child care expenses paid by Ms. Pinto, with credit to Mr. Neves for payments totaling $1,398
• 2017 - $4,660 gross child care expenses paid by Ms. Pinto and $1,150 paid by Mr. Neves
• 2018 - $4,180 gross child care expenses paid by Ms. Pinto
• 2019 - $4,400 gross child care expenses paid by Ms. Pinto

[132] Total daycare expenses from 2016 to 2019 were $23,240. Mr. Neves’ share is 61.9 percent or $14,385.56. To date, Mr. Neves has paid $2,548. Ms. Pinto should be reimbursed for childcare expenses in the amount of $11,837.56.

[133] Going forward, child expenses will be shared proportionate to the parties’ income, with Mr. Neves paying 61.9 percent and Ms. Pinto paying 38.1 percent.

[134] While Ms. Pinto has been receiving the entire amount of the Universal Child Care Benefit (UCCB), no claw back of that amount is ordered.

Other Expenses

[135] Ms. Pinto had not provided Mr. Neves with receipts for the children’s extracurricular activities until he commenced this motion. At trial, Ms. Pinto admitted that she did not provide the information to preclude Mr. Neves from participating in the activities, even though this also meant that she would not being reimbursed.

[136] In her affidavit, Ms. Pinto stated that she pays approximately $225 per month for the children’s swimming, skating and gymnastics lessons. The swimming and skating lessons are provided through the City of Toronto. The receipts for 2017 and 2018 for all of the activities total approximately $1200 per year, or $100 per month.

[137] Mr. Neves pays for the children to participate in Girl Guides and Boy Scouts at approximately $100 per month. While Mr. Neves did not provide receipts, there is no dispute that the children also participated in those activities.

[138] Each party will bear the cost of the children’s extracurricular activities incurred to date, as none of the activities constitute an extraordinary expense and were within the financial means of each of the parties.

[139] Ms. Pinto testified that she decided not to enroll Layla in competitive gymnastics, but the reasons she gave were inconsistent. She first stated that Mr. Neves told her the cost was too high and later said that she did not want Layla to be overextended. There is no current plan for Layla to be enrolled in competitive gymnastics.

[140] As the children get older, they may become more involved in specialized or intensive extracurricular activities. The parties shall discuss and agree to the activities in which Layla and Nathan will participate and pay their proportionate share of the costs.

Further Terms as Agreed to and Ordered

[141] As noted above, the parties agreed to certain terms after the trial but before closing submissions were heard. There were a few matters that remained in dispute, which I have determined below.

[142] The parties shall each be listed as the children’s emergency contacts whenever an emergency contact is required to be listed, and shall also be listed as an authorized pick-up person whenever one is required to be listed. The parties shall provide confirmation of same to each other on a regular basis whenever emergency contact and/or pick-up information is provided or updated.

[143] The parties shall each be responsible for obtaining their own school calendars, notices, and communications whenever possible and if not otherwise shared by the school. If one parent receives information outside of regular school communications, they shall share the information with the other parent. The parties shall regularly share information regarding the children’s health, education, and general well-being, including providing copies of all relevant documents, advising the other of all doctor/health-related appointments in advance, and promptly advising a non-attending party of the results of any doctor/health-related appointments.

[144] The parties agree that they will use the app Our Family Wizard to communicate regarding the children, except in the case of emergency, including but not limited to managing the children’s schedules, sharing information and documents from the children’s school, and exchanging annual financial disclosure. The parties shall respond to messages exchanged via Our Family Wizard within 7 days or on an expedited basis if a more immediate response is required. They disagree as to who should pay the costs of Our Family Wizard, with Ms. Pinto maintaining that Mr. Neves should pay and Mr. Neves stating that both parties should pay. Each party shall bear half the cost.

[145] There are two remaining bank accounts held jointly by the parties in trust for the children. The parties agree that the funds should be deposited into Registered Education Savings Plan (RESP) accounts for the children, but do not agree on how they should be held. Ms. Pinto submits that they should be put into joint RESP accounts, from which no funds can be withdrawn without both parents’ signatures. Mr. Neves does not wish to hold any account jointly with Ms. Pinto. As Ms. Pinto has demonstrated an inability to share essential information and provide consent when necessary, it is preferable for the accounts not to be held jointly. The funds in the joint accounts are to be released, with each party taking one-half of the amount and depositing it into an RESP account to be held for both children. Each parent shall provide statements for their respective RESP account to the other parent annually. No funds shall be withdrawn from either RESP account without the consent of the other parent.

Conclusion

[146] For the foregoing reasons, the Applicant’s motion to change is granted. The parties shall have equal parenting time on an alternating week schedule. Spousal support is terminated effective June 1, 2020. Ms. Pinto must pay child support effective September 1, 2018.

[147] Accordingly, the Order of Moore J. dated March 18, 2016 is varied, and additional terms are ordered, as follows:

(a) The parties shall follow an alternating week schedule to commence on Friday May 29, 2020, with transitions to take place on Fridays after school or at 5:00 p.m. when the children are not at school; (b) Spousal support shall be terminated effective June 1, 2020; (c) Mr. Neves shall pay child support to the Respondent in the amount of $683 per month, effective September 1, 2018; (d) Ms. Pinto shall pay Mr. Neves $18,794 in retroactive child support; (e) Mr. Neves shall pay Ms. Pinto $11,837.56 in retroactive child care expenses; (f) The parties shall share child care expenses with Mr. Neves paying 61.9 percent and Ms. Pinto paying 38.1 percent; (g) As the children get older, the parties shall discuss and agree to the activities in which Layla and Nathan will participate and pay their proportionate share of the costs; (h) The parties shall, by April 30 each year, exchange financial information for the adjustment of child support; (i) For as long as the parties are obligated to pay child support, as security for the parties’ respective child support obligations outstanding as of the date of their death, the parties shall each designate and maintain the children as equal beneficiaries of the proceeds of any life insurance policy available through their employment. The parties shall each appoint an independent third party trustee to receive the insurance proceeds on behalf of and as trustee for the children; (j) Mr. Neves shall have make-up time with the children for a total of one week to be taken at a time of his choosing upon 30 days advance notice in writing to Ms. Pinto. The make-up time shall be taken by December 31, 2021, after which it will no longer be available; (k) If a child’s birthday falls on a weekend, the children will spend four hours from 10 a.m. to 2 p.m. or as otherwise agreed with the parent who does not have the children in their care; (l) In respect of summer vacations, the parties shall alternate each year in having first choice in selecting their desired vacation weeks, with Ms. Pinto having first choice in 2020 and even-numbered years thereafter and Mr. Neves having first choice in odd-numbered years; (m) The parent with first choice shall advise the other parent of their choice by January 31 and the parent with second choice shall advise the other parent of their choice by February 15; (n) During the summer vacation, the children will not spend more than two consecutive weeks in the care of either parent; (o) Either parent may travel with the children to either the United States or Portugal for a period not exceeding two consecutive weeks without the written consent of the other party; (p) For any other travel outside of Canada, the advance written consent of the non-travelling parent is required, which consent shall not be unreasonably withheld; (q) The travelling parent shall request the consent of the non-travelling parent a minimum 30 days in advance of the scheduled trip, unless otherwise agreed; (r) In the event that the non-travelling parent fails to consent or respond within 14 days of the request, such consent shall be dispensed with; (s) The travelling parent shall provide an itinerary, including flight numbers and times, address where the children will be staying, and a telephone number where the children may be reached, to the non-travelling parent 14 days before the departure date, and, if the travel is booked less than 14 days in advance, as soon as possible; (t) The travelling parent shall provide a travel consent letter for the other parent to sign, which shall be returned no later than 7 business days after the request for a travel consent has been made; (u) If the non-travelling parent fails to provide a travel consent letter within 7 business days of the request, the consent shall be dispensed with. Any fees associated with the consent to travel letter shall be borne by the travelling parent; (v) The parties shall cooperate in obtaining any new and/or renewal passports for the children, including in executing any necessary documents, or advising of any corrections, within seven days of the completed application form being provided. The parties shall pay an equal share of the cost, including the photos and application fee, which shall be reimbursed within seven days of receiving proof of the cost; (w) Mr. Neves shall apply for and hold the children’s passports and shall provide them to Ms. Pinto when required for travel; (x) Ms. Pinto shall return the children’s passports to Mr. Neves within 48 hours of their return to Ontario, or within 48 hours of any cancellation of travel plans; (y) Mr. Neves shall be the custodian of all of the children’s important documents, including, but not limited to, their health cards, birth certificates and passports; (z) Ms. Pinto shall make notarized copies of the birth certificates and health cards for herself and deliver the originals to Mr. Neves within 30 days of this order. If the originals of any documents are provided to Ms. Pinto for any purpose, she shall return them to Mr. Neves within 48 hours of her obtaining the documents; (aa) The parties shall each be listed as the children’s emergency contacts whenever an emergency contact is required to be listed and shall also be listed as an authorized pick-up person whenever one is required to be listed. The parties shall provide confirmation of same to each other on a regular basis whenever emergency contact and/or pick-up information is provided or updated; (bb) The parties shall regularly share information regarding the children’s health, education, and general well-being, including providing copies of all relevant documents, advising the other of all doctor/health-related appointments in advance, and promptly advising a non-attending party of the results of any doctor/health-related appointments; (cc) The parties shall each be responsible for obtaining their own school calendars, notices, and communications whenever possible and if not otherwise shared by the school. If one parent receives information outside of regular school communications, they shall share the information with the other parent; (dd) The parties shall use the app Our Family Wizard to communicate regarding the children, except in the case of emergency, including but not limited to managing the children’s schedules, sharing information and documents from the children’s school, and exchanging annual financial disclosure. Each party shall bear half the cost of the app; (ee) The parties shall respond to messages exchanged via Our Family Wizard within 7 days or on an expedited basis if a more immediate response is required; (ff) The parties shall execute all necessary documents to have the funds held in the joint CIBC account numbers xxxxxx536 and xxxxxx293 released to the parties equally and to be deposited into two new RESP accounts to be held for both children; and (gg) Each parent shall provide statements for their respective RESP account to the other parent annually. No funds shall be withdrawn from either RESP account without the consent of the other parent.

[148] For greater certainty, the terms of the Order dated March 18, 2016 that are not affected by the above terms remain in force. The above terms are enforceable from moment of release of these Reasons.

[149] Given the court’s limited resources at the present time due to the ongoing pandemic, the parties are strongly encouraged to agree on costs: see Booth v. Bilek, 2020 ONSC 2523, at para. 9. If the parties are unable to agree, the Applicant shall serve and file his costs submissions within 21 days of this decision. The Respondent’s responding costs submissions shall be served and filed within 14 days of receipt of the Applicant’s cost submissions. No cost submissions shall exceed 4 double-spaced pages, not including a bill of costs. Costs submissions are to be submitted to me through the Family Scheduling Office. If no costs submissions are received within this time frame, the parties will be deemed to have resolved costs.

Nishikawa J.

Released: May 19, 2020

COURT FILE NO.: FS-14-19818-0001 DATE: 20200519 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Nelson Manuel Gaspar Neves Applicant – and – Alice Patricia Cardoso Pinto Respondent

REASONS FOR JUDGMENT Nishikawa J.

Released: May 19, 2020

[1] The schedule ordered differed from the OCL recommendation only in that weekend time extended to drop off at school on Monday morning, as opposed to Sunday evening.

[2] There was some ambiguity in the draft terms provided, which I have attempted to resolve here.

[3] Ms. Pinto was reassessed in relation to both her 2016 and 2017 tax returns. She failed to disclose spousal support on her 2017 income tax return. She also disclosed an inaccurate amount to the CRA for childcare expenses in 2017. Ms. Pinto claims both were in error and that she corrected the information as soon as she realized. Ms. Pinto testified that she included spousal support in her 2016 income tax return. This cannot be verified because she has not provided her 2016 tax return.

[4] Ms. Pinto was also ordered to pay $9,115.90 for joint property claims, which was paid by garnishment.

[5] The consent order required that Ms. Pinto provide “a current real estate opinion of market value from an arms’ length agent.” The letter is undated and consists of one line stating the “current market value range based on comparable sale.” While the letter provides no basis for the valuation, it was the only evidence of current market value provided.

[6] Neither party disclosed the value of their employee pension plan in their financial statement.

[7] For both parties, the previous year’s income has been used to determine Table child support.