CAYUGA COURT FILE NO.: FS-11-155

DATE: 20210423

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Nicole Neal

Applicant

– and –

Andrew Neal

Respondent

Self-Represented

Sean Heeley

HEARD: January 25, 26, 27, 2021

The honourable justice m. j. donohue

REASONS FOR JUDGMENT

OVERVIEW

[1] This trial concerned Ms. Neal’s motion to change the order of Nightingale J. dated July 13, 2013. The Order stated “effective August 1, 2016 the Respondent (Mr. Neal) shall pay child support in accordance with the Child Support Guidelines and his income.”

[2] On the issue of child support, Ms. Neal sought to have the court impute income to Mr. Neal in the range of $50,000 and $65,000 per annum.

[3] Ms. Neal also sought a contribution from Mr. Neal for s. 7 special and extraordinary expenses under the Child Support Guidelines, O. Reg. 391/97 commencing August 1, 2016.

[4] Mr. Neal disputes the motion on the basis that his mental health has not allowed him to earn much income.

[5] The parties were married in 2000 and had two children. They separated in September 2011. They consented to the order of Nightingale J. regarding child support in July 2013.

INCOME HISTORY

[6] In the twelve years of marriage, from 2000-2011, Mr. Neal had great fluctuations in his income. His average income was $23,496 per annum.

[7] His highest income earned was the year before separation when he earned a net business income after expenses of $46,707. The following year, 2011, it dropped to $11,600 when his mental health was clearly poor, as discussed below.

[8] In early 2013 he was able to be hired by a firm called Binatech at an expected salary of $50,000. However, he only lasted ten weeks at Binatech, before quitting. Later in July 2013, by the consent order of Nightingale J., the child support obligation was set at a minimum wage income of $19,300 for the next three years.

[9] During that three-year period there had been an expectation that Mr. Neal would attend Mohawk College. He was unable to complete that degree due to depression and lack of concentration.

[10] His earnings, doing odd jobs, were below subsistence level as follows:

• 2014 $500;

• 2015 $950;

• 2016 $6,561;

• 2017 $3,744.

[11] Mr. Neal resumed regular employment by driving a school bus for Sharpe Bus Lines. His Line 150 income was $13,999 in 2018 and $19,978.95 in 2019.

[12] For the purposes of support Mr. Neal recognized that he had additional income available from his IT consulting work of $3,292 in 2018 and $3,875 in 2019. His income was therefore as follows:

• 2018 $17,301;

• 2019 $23,853.

MR. NEAL’S EVIDENCE OF ILL-HEALTH

[13] Mr. Neal testified to problems with his mental health and not being able to run his business of IT work. He found it hard to concentrate, he was not sleeping at night, it was hard to rise in the morning and he woke with a gag reflex. At times he could not eat, nor drink regular fluids. He suffered from migraine headaches.

[14] The course at Mohawk College began well, but his mental health issues prevented him from continuing. He lacked concentration and was depressed and lethargic. He dropped out in his second year, unable to take his exams. He did some odd jobs. He assisted an electrician. He did some landscape work as a labourer and he did some IT work for a restaurant.

[15] He was referred to the Mood Disorders Clinic by his family doctor, Dr. Sharma, and began cognitive behavioural therapy (CBT). It was helping but then his “negative self talk took over again” and he “tanked”.

[16] He applied for some general labour jobs but did not get a reply and then he took a “nose dive again”. For a time, he was depressed and lethargic and his girlfriend found him in bed in a fetal position all day once or twice a month. He described the year 2016 as “dark”. He was unmotivated and found it hard to find joy in life. The depression took a toll such that his energy levels were “none”.

[17] He found that things got better in 2017 after he changed his medication from Prozac to Wellbutrin. His mood improved and he was able to start running again. He said that running calms and “levels” him. That summer he applied to drive a school bus and passed the driver’s test. In September he began that work which involved a morning shift and an evening shift.

[18] After securing employment, his mood improved. He enjoyed driving with the children and found it stress relieving. He began to feel pride in himself that he could manage and keep a job. He still had some anxiety attacks and would wake up in the morning and vomit. He also had migraine headaches on occasion.

[19] In 2018, things remained the same. Mr. Neal found it hard to sleep at night but he would nap mid-day during the break between his morning and evening shifts so he was safe to drive the bus. He also did some work as a personal trainer and earned $1200.

[20] He received other treatments from psychologist Leslie Hannel and a counsellor, Mr. Geleynse.

[21] In 2019 he got another part time job through an employment agency driving and delivering packages for Amazon. He also did some IT work as an odd job for a restaurant. A new psychiatrist in Brantford further added Abilify for his medication.

[22] In 2020 he was still doing the work for the bus line and the restaurant but then collected CERB benefits during the pandemic.

[23] Mr. Neal testified that although he has applied online to some other jobs, he has not had success and he did not want to “spoil things with Sharpe Bus Lines”. He was apprehensive to change things in case his mental health deteriorated. He was feeling joy in having the job and feeling good about getting the kids to school safely. He did not feel he could manage the stress of running his own business again.

[24] Mr. Neal has considered driving a bus for Hamilton or Brantford at some point but currently they are not hiring.

[25] Mr. Neal also admitted to renovating a bathroom in his girlfriend’s home, changing some trim, painting his son’s bedroom and putting up a shed in the backyard.

LIFESTYLE AND ADDITIONAL INCOME

[26] Ms. Neal did an extensive cross-examination of Mr. Neal’s bank accounts and credit card statements.

[27] Ms. Neal was able to tease out the income that Mr. Neal earned through odd jobs, consulting work, and personal training. Mr. Neal acknowledged that he received this additional income in 2018 and 2019.

[28] His bank records demonstrate an extremely modest lifestyle with a bank balance generally below $500 and often below $100.

[29] Similarly, his credit card statements show largely modest expenses each month of less than $100. Two statements in late 2019 showed purchases of $700 but otherwise the expenditures indicate low income.

[30] Mr. Neal testified that he quit his work as a personal trainer at GoodLife Fitness as “he was not making any money.” The evidence is that in 2016 he earned $1,772.46 over a two-month period, or $196.94 per week. I accept his evidence that he did not earn enough at GoodLife to make a living.

[31] Overall, the records confirm the evidence of Mr. Neal and his common law partner, Ms. Tansley, that she was financially supporting him. Ms. Tansley is employed full-time as a teacher and owns two properties.

[32] Ms. Neal points to a trip to Nova Scotia, a trip to Scotland, a cottage in Huntsville, and camping trips as indications that Mr. Neal has a comfortable lifestyle. The evidence is that these were all funded by Ms. Tansley.

MENTAL HEALTH HISTORY

[33] There was no expert opinion provided at trial that Mr. Neal has been unable to work due to disability. However, the medical records filed do provide a long history of treatment for problems related to depression and Attention Deficit Hyperactivity Disorder (ADHD).

[34] In August 2009 Mr. Neal saw his treating psychiatrist, Dr. Waldenberg with a feeling of being ‘zoned’ and thinking he might punch a wall. The doctor’s impression was that Mr. Neal was experiencing breakthrough symptoms of his ADHD. His dosage of the medication Concerta was increased.

[35] In June 2010 Mr. Neal saw Dr. Waldenberg, reporting difficulties with attention and concentration and some mood problems. The doctor switched his medication to Adderall.

[36] In December 2010 Mr. Neal saw Dr. Waldenberg due to a self-injury. At the time, he banged his head with a cup hard enough to require five sutures. This was the third time he had injured himself in a similar fashion. Mr. Neal said he lacked the motivation to work and was not doing much. A week later the doctor’s impression was that Mr. Neal was suffering from depression as well as ADHD. The doctor prescribed Prozac and Concerta. although Mr. Neal did not always take them due to his disorganized sleeping pattern

[37] A sleep study was done in August 2011 when Mr. Neal was complaining of daytime fatigue, major depression and ADHD.

[38] At the couple’s separation in September 2011, The Children’s Aid Society of Haldimand & Norfolk (the “Society”) completed a child protection investigation. It was initiated by the applicant mother, Ms. Neal, due to concerns about her husband’s mental health and stability. Their letter in October to the family doctor stated, “Over the past year, Mrs. Neal reports an escalation in incidents involving Mr. Neal lashing out verbally and physically by injuring himself and/or property in the home. Further, Mrs. Neal reports that Mr. Neal has threatened to kill himself approximately ten times in the last year.” The Society requested supervision of Mr. Neal’s access with his children at that time.

[39] In October 2011 Dr. Waldenberg prescribed weekly psychotherapy after Mr. Neal lost control and punched his right hand through a kitchen cabinet in September 2011.

[40] In January 2012 The Sleep Disorders Clinic assessed Mr. Neal regarding excessive daytime sleepiness and unrefreshing sleep. He was napping during the day and had restless legs for which he was prescribed medication.

[41] In March 2012 Mr. Neal suffered a prolonged period of unresponsiveness over three days as noted in a report to Dr. Waldenberg by Dr. Kronby, a neurologist.

[42] In December 2014 Mr. Neal saw his family doctor, complaining of anxiety and depression and asking for referrals. Dr. Sharma’s assessment was depression.

[43] Dr. Waldenberg saw Mr. Neal in December 2014. Mr. Neal was having suicidal thoughts about hanging himself, although saying he never really intended to do anything of this sort.

[44] Dr. Waldenberg reviewed Mr. Neal again in January 2015 stating, “He has had no further dark thoughts. He is anxious and finds this is helped by exercise however he doesn’t go for a run often enough. He was quite disjointed and rambling off the point in a way clearly showing incomplete control of his ADHD.”

[45] In April 2015 Dr. Waldenberg noted that Mr. Neal had diminished energy, motivation, ambition and drive: “His sleep cycle is altered somewhat. He is not laughing. He is neither employed nor going to school. As you know he has a combined diagnosis of depression and ADHD.”

[46] On April 29, 2015 he was assessed at the Mood Disorders Clinic complaining that “he had had recurrent episodes of depression over the past 8 ½ years where they could last for 2-3 weeks and up to months at a time. The last episode he experienced was this past March where he described he had experienced depressed mood, loss of interest in pleasurable activities, loss of energy/fatigue, difficulty in concentration and change in motivation and decision making.” His current stressor was unemployment. The psychiatric diagnosis was “Major Depressive Disorder, recurrent, currently sub-syndromal; ADHD.”

[47] It was noted that “Andrew is currently unemployed and is supported by his girlfriend and from his savings.”

[48] In May 2015 Dr. Waldenberg reported that the depression seemed to be improving. He noted the following: “He felt nausea and anxiety on and off the first week, sleep was difficult. However he is much less irritable and is having some happy moments and less mood dips. His energy and appetite are improving though not yet back to normal. Today he began CBT (Cognitive Behavioural Therapy) for depression. He has no further thoughts about wanting to be hit by a bus and things have improved between himself and his girlfriend…I have increased his dosage of Prozac…continuing Concerta.”

[49] Dr. Waldenberg, his psychiatrist, retired in June 2015.

[50] In September 2016 Mr. Neal saw the family doctor, Dr. Sharma. His mood and ADHD symptoms were better regulated with the Wellbutrin prescribed.

[51] In July 5, 2017 Dr. Sharma noted no active suicidal thoughts and her assessment was that his depression was controlled. She wrote at that time that Mr. Neal had been fully involved with St. Joseph’s Healthcare Hamilton’s Mood Disorder Clinic over the past 2.5 years: “He has been working with psychologists and social workers in both group and individual sessions to treat his mental health.”

[52] Correspondence from the Mood Disorders Clinic stated, “He attended a Cognitive Behavioural Therapy group for Depression beginning May 27, 2015. He completed the group September 25, 2015. Mr. Neal met with Mr. B. Di Franco, Vocational Counsellor, for individual sessions focused on goal management with a focus on return to work October 2015 to September 2016. He was offered and took part in the Out of the Blues (Behavioural Activation) research group beginning March 2, 2017. He attended the group twice a week for 14 weeks with continued follow up appointments every 3 months. Throughout his time at the Mood Disorders Outpatient Clinic Mr. Neal has been invested in his treatment as demonstrated by his regular attendance, and ongoing participation and engagement in recommended programs and services.”

[53] In January 2018 Dr. Sharma noted that he was working well on Wellbutrin. He was driving a school bus and doing personal training. He still experienced panic attacks and heart racing but they were not lasting as long and it was easier for him “to rebound”.

[54] A month later in February 2018 his partner Ms. Tansley advised Dr. Sharma that Mr. Neal was not coping well.

[55] In August 2018 Dr. Sharma noted that the medications were working, and that while Mr. Neal still had mood swings, he was handling the situation well. The assessment was mood disorder, ADHD under control.

[56] Mr. Neal was seen for three sessions by psychologist Dr. Hannell in February 2019 for depression.

[57] In the fall of 2020 Mr. Neal had five sessions with psychotherapist Mr. Geleynse who noted moderately severe depression and anxiety.

Should Income be imputed to Mr. Neal?

The Law on Imputation of Income

[58] Section 19 of the Child Support Guidelines permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim: Ferlisi v. Boucher, 2021 ONCJ 48, at para. 60.

[59] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed: see Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 32.

[60] Imputation of income by the court is discretionary: see Jonas v. Pacitto, 2020 ONCA 727, 49 R.F.L. (8th) 56, at para. 47.

[61] The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute: see e.g. Korwin v. Potworowski, 2007 ONCA 739, 43 R.F.L. (6th) 1, at paras. 5-6. Accordingly, the person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made: see Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28.

[62] In determining whether to impute income, the court must consider what is reasonable in the circumstances. The factors that the court should consider include the age, education, experience, skills and health of the party, the party’s past earning history and the amount of income that the party could reasonably earn if they worked to capacity: see Lawson v. Lawson (2006), 2006 26573 (ON CA), 81 O.R. (3d) 321 (C.A.), at para. 36.

[63] A person’s lifestyle can provide the basis for imputing income: see Aitken v. Aitken (2003), 2003 2050 (ON SC), 42 R.F.L. (5th) 1 (Ont. S.C.), at paras. 34, 46; Jonas v. Jonas, [2002] O.J. No. 2117 (Ont. S.C.), at para. 58; and Price v. Reid, 2013 ONCJ 373, at para. 36.

Analysis of medical evidence

[64] The evidence of a long history of sleep difficulties, feelings of worthlessness, suicidal thoughts, and differing medications to balance issues of ADHD, depression, and anxiety support Mr. Neal’s testimony of his inability to maintain employment at a higher level that he has reported being able to do.

[65] Mr. Neal is 50 years of age with a history of serious mental health challenges for over 12 years.

[66] Mr. Neal described the “dark” time he had in 2016. I note that his psychiatrist, Dr. Waldenberg, retired in 2015 and he was without a treating psychiatrist at this time.

[67] Dr. Sharma’s testimony was that at present, under the current drug regime, his ADHD and anxiety disorder are stable.

[68] Ms. Neal suggested that the doctor’s notes indicating that Mr. Neal is “stable”, mean that he is well. When viewing the evidence in its totality however, it appears that Mr. Neal is at best “managing” to find a balance.

[69] Mr. Neal testified that he found joy in working as a bus driver and interacting with the children. It is uncertain if that balance would be upset if the court decided that Mr. Neal should instead pursue something more remunerative with longer hours and other stressors. Mr. Neal was apprehensive himself about how any changes might affect his mental health.

[70] His testimony was that his work as a school bus driver allowed him to nap mid-day. He was also able to pick up shifts driving for Amazon on the weekends when he was not exercising access time with his children.

[71] Ms. Tansley has been his common law partner through these years. She confirmed his evidence of the difficulties he has had, his inability to do much work and the fragility of his mental health. She testified that Mr. Neal has long been an insomniac. He will wake gagging and at times will vomit from anxiety. She described times when he would not eat. She also confirmed that as a full-time employed teacher, she has been financially supporting Mr. Neal.

[72] Although some of the productions of medical notes and records coincide with Mr. Neal’s need to provide evidence for this litigation, the evidence supports that he has been suffering from these medical conditions for more than a decade. It appears that these issues led to the marital separation. Mr. Neal’s condition was so serious that it resulted in his not being able to see his children very often for some years.

[73] I consider it telling that Ms. Neal was opposed to any overnight access for their children and that the matter went to trial in June 2014. The Society had decided that overnight access would not endanger the children. Ms. Neal’s evidence to the court was that the Society had not done a thorough enough investigation and that the father’s counselling had not been undertaken long enough to be effective. In her evidence in 2014, she expressed serious concerns about Mr. Neal’s mental health and how it may affect or endanger her children. She now seeks to down-play his mental health problems.

[74] Mr. Neal has made efforts to recover. He tried to retrain. He attended recommended counselling, including vocational counselling. He looked for work that he could handle in his field but was not successful. He took the bus driving job which allowed him to address his sleep issues by taking mid-day naps. He has been compliant with his drug regimen. He has sought out additional income from his consulting work and driving evening shifts for Amazon.

[75] I am persuaded that he has done his best with the challenges in his health. This is not a situation where it would be appropriate to impute an income to him that he has never achieved nor one that is grossly higher than what his average income was during the marriage.

[76] On all the evidence I accept that he was unable to earn income in 2016 and 2017 due to the medical problems at the time. I accept that he has made best efforts to recover and obtain employment.

[77] The evidence does not support that Mr. Neal is intentionally underemployed or unemployed.

[78] The imputation of income speaks only to income which should be included in his income for support which is above his reported Line 150 income.

[79] Although he has been paying $449 per month on an imputed income of $29,000 pursuant to a temporary without prejudice order, I am satisfied that he has only been able to manage this due to the financial support of Ms. Tansley.

HAS THERE BEEN A MATERIAL CHANGE IN CIRCUMSTANCES?

[80] Pursuant to s. 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the court is required to satisfy itself that a change in circumstances has occurred since the making of the initial support order.

[81] Ms. Neal commenced her motion to change in December 2016, at a time when she did not have information about Mr. Neal’s circumstances. The context of her motion to change was the original contemplation that Mr. Neal would have completed his education program and be employed by the fall of 2016. Mr. Neal did not file his response to her motion until November 2018. She was obliged to bring motions for income and medical disclosure.

[82] Ultimately, through her efforts she obtained his tax returns and information of other income that should be included in his income for support purposes. Mr. Neal acknowledged additional income should be included for 2018 and 2019. On the evidence, I find that an additional $3,500 is to be imputed to him for income that he earns over and above his Line 150 income on his tax returns.

[83] It should also be noted that Mr. Neal did not begin paying any support until April 2018 after a temporary without prejudice order was made by Sweeny J.

[84] Although modest, I consider that the additional income in 2018 and 2019, as well as imputing additional income starting in 2020, satisfies the requirement of a material change.

What Is Mr. Neal’s Income for Support?

[85] There is evidence to support the challenges Mr. Neal has faced which has caused him to be unemployed and working for close to minimum wage.

[86] It should be noted that at the opening of trial it was his position that his income for support purposes be his Line 150 income from his tax returns. Through the course of the trial it was acknowledged that there be an additional $3,292 added to 2018’s income and an additional $3,875 to 2019’s income.

[87] Although he has been paying support of $446 per month since Sweeny J.’s temporary without prejudice order in April 2018, it appears clear that he has been able to do this only with the financial support of Ms. Tansley, and that he has been overpaying.

Calculation of Retroactive Support

[88] For 2016 and 2017 Mr. Neal’s income was below the guideline support level. He did not owe support.

[89] In 2018 on an annual income of $17,302, Mr. Neal was obligated to pay $242 per month under the Child Support Guidelines. He should have paid $2,904. Per Sweeny J.’s order he paid $446 for nine months for a total of $4,014. He overpaid $1,110.

[90] In 2019 on an annual income of $23,853, Mr. Neal was obligated to pay $406 per month under the Child Support Guidelines. He should have paid $4,872. Per Sweeny J.’s order he paid $446 for 12 months for a total of $5,352. He overpaid $480.

[91] Up to and including January 1, 2020, Mr. Neal overpaid $1,590 in child support. This overpayment is to repaid by reducing subsequent support by $50 per month commencing May 1, 2021.

[92] S.D.O. to issue.

[93] For 2020 Mr Neal will owe guideline support on his Line 150 income plus an additional imputed income of $3,500 as I have found above. Any overpayment shall continue to be reduced at the rate of $50 per month.

[94] In the event that there are any issues arising out of calculations of child support for 2020 and an underpayment or overpayment of arrears, the parties may return before me with submissions.

On-Going Support Order

[95] Mr. Neal is to pay guideline support for the two children on his Line 150 income plus an additional imputed income of $3,500.

SECTION 7 EXPENSES

[96] After Ms. Neal’s evidence had been completed, on the second day of trial, Ms. Neal produced for the first time the receipts for the s. 7 expenses that she was claiming. They covered five years from 2016 to 2020 for a total of $24,336, or just under $5,000 per year ($4,867).

[97] The receipts included $2,836 for daycare before and after school, as well as school activities, swimming, hockey, piano, soccer, football, and horseback riding.

[98] Ms. Neal did not consult with Mr. Neal before incurring the expenses nor get his consent to share in the expenses.

[99] In 2016 Ms. Neal’s income was $99,867 and Mr. Neal’s was $6,561. He was in no position to contribute to s. 7 expenses that year.

[100] Similarly, in 2017 Ms. Neal’s income was $101,076 and Mr. Neal’s was $3,744. Mr. Neal could not have contributed.

[101] Ms. Neal’s income in 2018 and 2019 was $81,432 in comparison to Mr. Neal’s income of $17,301 and $23,853, as found by the court.

[102] If I was to order sharing of the $4,867 in expenses in 2018, Mr. Neal’s 17% pro rata share would be $827. In 2019 his 22% share would be $1,070.

[103] It is not clear what either party’s 2020 income is. Ms. Neal testified that she has been accepted by CPP total disability benefits while Mr. Neal has been receiving additional income during the pandemic. Their potential pro rata share of s. 7 expenses at this time is unknown.

[104] Although Ms. Neal gave notice that she was seeking a contribution to the s. 7 expenses in 2016, she did not seek Mr. Neal’s consent to the expenses, nor discuss the expenses, nor provide the details and receipts until the middle of trial.

[105] Ms. Neal submitted that she had email evidence of discussion of the s. 7 expenses. The emails only note an agreement regarding a tournament cost in the fall of 2017.

[106] In these circumstances, I am not prepared to order a payment toward the retroactive s. 7 expenses.

[107] The evidence at trial is that the children have been added as dependants on Ms. Tansley’s benefits, which will assist both parties in some of the expenses.

Section 7 Expenses Going Forward

[108] Mr. Neal recognized in his answer that there would be the need for a sharing of s. 7 expenses.

[109] Ms. Neal proposed that s. 7 expenses be shared equally. Although her income may well be greatly reduced on disability, Mr. Neal’s income will still be much lower, particularly as I have not accepted her submission to impute more than $50,000 to him.

[110] It is more appropriate to share the expenses pro rata to income and as well to discuss the expenses before incurring them.

[111] Accordingly, I order commencing May 1, 2021 that the applicant and the respondent shall share the children’s s. 7 special and extraordinary expenses in accordance with their respective incomes, pro rata.

[112] I order that the parties are to discuss s.7 special and extraordinary expenses before incurring them.

[113] I order that neither party shall unreasonably withhold their consent to incur the special and/or extraordinary expenses. The respondent shall reimburse the applicant for his share of any special and/or extraordinary expense within 14 days of being presented with a receipt or invoice for the expense.

[114] In Ms. Neal’s written submissions was a proposal to deal with post-secondary expenses of the children with contribution from each child. This was not discussed in the trial and at the income levels of the parties may not be possible. I am unable to make an order dealing with that issue.

Life Insurance

[115] In Ms. Neal’s written submissions, she asked that Mr. Neal be ordered to obtain a life insurance policy for so long as he is obligated to pay child support, in the amount of $300,000 for both children.

[116] In her opening, Ms. Neal asked for proof of life insurance. There was no other evidence of whether Mr. Neal would qualify for life insurance and what the cost of that would be.

[117] In light of his medical history, the court is not in a position to impose such an order without evidence that it is viable at his income level and that he is insurable.

RESTRAINING ORDER

[118] In reply submissions, Ms. Neal requested an order that Mr. Neal not communicate with her except by text or email regarding access arrangements to the children.

[119] There was no evidence of inappropriate communications that would support such an order.

[120] Ms. Neal also requested an order that Mr. Neal not come within 100 metres of her home at any time except for the purpose of collecting and returning the children for access visits as pre-arranged.

[121] Mr. Neal testified that on one occasion in 2019 he attended at her home to pick up their son’s skates to be sharpened. On that occasion, Ms. Neal called police to say he was trespassing. Another time in 2019 he dropped off his son’s puffer at the house after his son’s access weekend. Again, Ms. Neal called police.

[122] Both events related to the children. There is no other evidence before 2019 or since 2019 of Mr. Neal inappropriately being near Ms. Neal’s home to justify such an order.

A Disclosure Order

[123] Ms. Neal requested a disclosure order that as long as child support is payable, the payor and recipient must provide updated income disclosure to the other party each within 30 days of the anniversary of this order, in accordance with s. 24.1 of the Child Support Guidelines.

[124] This order is already in the July 16, 2013 order of Nightingale, J. and remains in place.

COSTS

[125] Success is divided. If the parties are unable to resolve costs, Ms. Neal may file written submissions on costs within 14 days. Mr. Neal may file responding written submissions within 14 days thereafter. Submissions are not to exceed three pages, plus costs outlines, case law, and any applicable offers. If required, Ms. Neal may file reply submissions seven days thereafter.

[126] Such written submissions are to be forwarded to my chambers in St. Catharines at 59 Church Street, St. Catharines, L2R 7N8 or may be emailed to my assistant at St.Catharines.SCJJA@ontario.ca.

[127] Falling receipt of costs submissions, within 40 days of this judgment, the issue of costs will be considered settled and the file closed.

M. J. Donohue J.

Released: April 23, 2021