Zawahreh v. Alkhoury, 2021 ONSC 7956

NEWMARKET COURT FILE NO.: FC-17-54896-01

DATE: 20211207

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Hiba Zawahreh Applicant

– and –

Youssef Alkhoury Respondent

K. Larsen, Counsel for the Applicant

Self-represented

HEARD: November 24 - 26 and 29, 2021

REASONS FOR DECISION

A. HIMEL J.:

OVERVIEW AND RELIEF SOUGHT

1The applicant (“the mother”) and the respondent (“the father”) were married on September 16, 2001 and separated on or about April 2014. There are three children of the marriage, W. (age almost 17), M. (age 15.5), (collectively “the older boys”) and C. (age 10) (the “child”).

2The child has various diagnosed health conditions including autism, major developmental delay, fatty liver disease, epilepsy (with seizures), stomach issues, high cholesterol, irregular heartbeat and apraxia. He is under the care of various doctors and therapists (in Toronto and in York Region), and he takes several prescribed medications.

3The parties entered into a Separation Agreement (“SA”) dated May 25, 2016. The mother commenced a Motion to Change (“MTC”) on or about April 18, 2018, which she amended on January 28, 2020.

4On November 24, 2021, the parties entered into a final order in respect of the following issues: (a) consultation and decision-making; (b) parenting time with the child pending any move to Montreal from alternate Fridays to Sundays, every Wednesday after-school and holiday access as set out in the Separation Agreement; and, (c) parenting time with W. and M. at each child’s discretion.

5The outstanding issues to be determined on the MTC are as follows:

(a) Is the mother permitted to move with the child to Montreal?

(b) What child support order is appropriate?

(c) Which outstanding section 7 expenses are payable by the father? What are the parties’ respective share of those expenses on a retroactive and ongoing basis?

(d) What security for support is appropriate?

6For reasons that follow the mother may relocate to Montreal with the child no earlier than July 16, 2022. The father shall pay child support on an imputed income of $80,000. The mother’s annual income for the purposes of section 7 expenses shall be set at $27,000 (2017-2021) and $40,000 (2022 onwards). On an ongoing basis the father shall pay $1,583 per month in child support and at least $193 per month in section 7 expenses. The arrears shall be paid from the net proceeds of sale of his home. An additional amount of $100,000 shall be directed to the mother’s solicitor to be held in trust as security for child support until the father provides evidence that he has obtained a life insurance policy in the amount of $100,000 and has paid at least one year of annual premiums.

I. Background Facts and Litigation History

7The facts as I find them are set out below and will provide context for the analysis. Further facts will be referred to in the analysis as required.

8Throughout the marriage the father owned Alkhor Kitchens, a small design, manufacturing and installation business. The wife was not employed outside of the home. The parties’ finances were a source of conflict between them. The latter years of the marriage were difficult and conflict-ridden.

9While the father had legal representation during the negotiation phase of the SA, he terminated that retainer prior to executing the agreement on May 25, 2016. The father acknowledges that he agreed to the terms of the agreement.

10The mother has been represented by LarsenLaw from the time of the negotiation and execution of the SA and until today.

11Prior to the execution of the SA, the net proceeds of sale of the matrimonial home were divided. Each party purchased their own home after separation. The SA makes no reference to any financial disclosure being provided by either party. For the purposes of determining child support as per the SA, the father’s income (as a self-employed owner of Alkhor Kitchens) was described as “not determined”, and the wife’s income (as a self-employed co-owner of Chocolate and Pastry Boutique) is set at $0.00.

12The father never fully exercised parenting time in accordance with the SA.

13The SA provides that that father pays monthly child support of $1,000 in addition to 50% of section 7 expenses (including seasonal clothing). While the father initially followed the SA, by October 2017 he stopped complying with same.

14As deposed by the mother, the timing of the non-compliance is coincident with a decision made by W. and M. to refuse any ongoing contact with the father as of October 8, 2017. This decision follows approximately 18 months of problems in the relationship between the father and the older boys.

15The mother commenced the MTC to vary the parenting order and to address the father’s income, and child support.

16The father admits that access visits with the older boys were challenging, that the boys often fought, and he could not manage them. He returned the boys early during this period and can only remember one full weekend visit (Friday to Sunday). On December 9, 2017, the father emailed the mother blaming her for the older boys’ refusal to see him and advising that he no longer wished to have parenting time with them. While the father recollects the breakdown as taking place in 2016, I prefer the mother’s oral evidence and affidavits sworn April 6, 2018 and November 2012. Her evidence is more reliable, more detailed and is supported by text message and email exhibits.

17I do not accept the father’s testimony that the mother alienated the older boys. The father’s access was the mother’s only opportunity to have a much needed break (respite) from parenting. The text messages between the mother and the older boys, and between the parents provide details about various incidents and problems. The father’s admission that he could not manage the older boys provides clear evidence that the reasons for the breakdown in the relationship are complicated. The father’s actions and interactions with the older boys played a significant role in their refusal to return for access. The father called them names, swore and became angry during visits.

18The father continued to have parenting time with the child on alternate weekends. However, he sometimes picked him up on Saturdays or dropped him off early. During this period (2016 to 2020) the father did not request the parenting time set out in the SA including Wednesday afternoons or summer, holiday (except for some time over some Christmas holidays) or special days.

19In 2018, the Office of the Children’s Lawyer (the “OCL” or “Ms. Bruce”) was appointed as counsel for the children. Ms. Bruce assisted the parties to attempt reconciliation therapy with Ms. Ambrosia. After a period of time the older boys articulated that they did not want any further access visits and the father agreed to same.

20On February 19, 2019, Bennett J. removed the OCL from the record as Ms. Bruce concluded (and the parties agreed) that the child is unable to instruct counsel or articulate his views and preferences in respect of the parenting time schedule.

21During various court attendances in 2018 – 2021, the Court ordered the father to provide financial disclosure, and concerns were raised by the mother about non-compliance in respect of same.

22A Trial Management Conference (“TMC”) was held on December 4, 2019. Bennett J. implored the father to obtain legal advice and the matter was set down for trial in May 2020. Leave was granted to enable the mother to amend her pleadings and seek an order that she may relocate to Montreal.

23The mother served her Amended Application (dated January 28, 2020), yet the father never served or filed an Amended Answer. However, the mother and the Court are well aware of the father’s objection to the relocation (and I directed that the relocation issue be heard on its merits rather than on a default basis).

24The mother had thyroid surgery in May 2020. She relied on her mother (who travelled from Montreal) to care for the children. On or about July 2020, the father sent roses and requested that the parties reconcile. When the mother declined the request, the father terminated his contact with the child. The mother advised the child that the father was away on business. She wanted to protect the child and was hoping that the father would reconsider. The father testified that he did not see the child for two months. The mother states that the father first sent a text requesting parenting time in November 2020. I prefer the mother’s evidence as to timing and conclude that the father had no parenting time for approximately four months.

25Since re-commencing his parenting time, the visits have been going well. The father does therapeutic activities (for speech and physical therapy) that he learns online, they play with therapeutic toys and enjoy their time together. The father exercised parenting time during Christmas 2020 and Summer 2021 (for 10 days, the longest period of time to date). The father has recently requested additional time. As per the new consent order, the child will now be in the father’s care on Wednesdays after school.

26On April 27, 2021, Jarvis J. made an order on an urgent basis that the sum of $60,000 as security for costs, and the sum of $45,000 representing child support and section 7 arrears, be paid into Court when the father sells his home. The closing is scheduled to take place in early 2022. If the sale does not proceed the father will immediately re-list the home.

27The trial was not heard in 2020 due to the Covid-19 pandemic, and it was adjourned from the May 2021 sittings until Fall 2021 by Bennett J. on June 10, 2021. On that day the father requested an opportunity to retain counsel. Further, the father’s financial disclosure was not complete. The father was ordered to produce his 2019 and 2020 personal tax returns (“ITR”) and corporate Income Tax Returns (“TR”).

28On November 18, 2021, a final TMC/TSC was held to organize the trial. Bennett J. noted that the father previously retained counsel on a limited retainer, but the lawyer was unable to address either the trial or the settlement of this matter.

29Bennett J. endorsed that there was urgency on both sides to have this matter reached during the Fall 2021 trial sittings.

30From the date of separation to present the mother has been solely responsible for all of the children’s medical, school and therapeutic needs. The child has many appointments, often at Sick Kids Hospital in Toronto, as well as speech therapy, occupational therapy and physical therapy. The mother has been solely responsible for meeting the older boys’ day to days needs, and for meeting the child’s needs except when he is the father’s care.

31During the trial the father requested the opportunity to be more involved in meeting the child’s needs including taking him to appointments. That is not properly before the Court. As per the November 24, 2021 consent order, the father has the option of exercising parenting time for holidays as per the SA. Any other or additional time, including taking the child to appointments that do not fall on his regularly scheduled time, can only take place if the parties agree.

LAW AND ANALYSIS

II. Preliminary Considerations

The Father is a Self-Represented Litigant

32As stated by the Ontario Court of Appeal in the recent decision, Grand River Conservation Authority v. Vidhya Ramdas:¹

(a) Self-represented litigants are expected to familiarize themselves with the relevant practices and procedures pertaining to their case and respect the court process;

(b) The Court has the duty to ensure that self-represented litigants receive a fair hearing;

(c) The Court must permit the represented party and the self-represented party to explain how they understand where things stand in the litigation;

(d) The Court may swear the party in before he/she makes submissions so that all admissible evidence can be relied upon; and,

(e) It is open to a judge to engage in active adjudication in order to obtain relevant evidence. However, a judge must not cross the line between assisting self-represented litigants in the presentation of their evidence and becoming their advocate.

33Recognizing the importance of providing appropriate assistance in cases where a party is self-represented, the Court took the following steps in this case:

(a) As stated above, the trial was adjourned from May 2021 to Fall 2021 to enable the father to retain counsel. He opted not to do so stating that the requested retainer was not a good use of his funds (his sole asset of value is the home that will be sold in January 2022 for approximately $2,080,000);

(b) The relocation issue was dealt with on its merits rather than on default (the father never filed an Amended Answer and never responded to the Notice of Relocation);

(c) Bennett J. required only the mother (and not the father) to provide evidence in-chief by affidavit;

(d) Counsel for the mother prepared exhibit briefs of the father’s financial disclosure;

(e) Rather than commence the trial on November 23, 2021, I conducted a pre-trial attendance and provided directions to the parties. Notwithstanding the various breaches of Court orders and the Family Law Rules² (the“Rules”), I gave the father a further opportunity to provide the following:

i. A Financial Statement to be sworn at the trial, as his most recent one was dated 2018;

ii. His 2020 income information/income tax information; his 2021 income information; any personal or corporate bank and credit card statements not already provided in their entirety; the car purchase/loan application in its entirety; the mortgage in its entirety; any medical evidence setting out a diagnosis, prognosis, treatment plan and compliance (if any), and the impact on his ability to work (and the type of work impacted or limit in hours); and

iii. A draft order setting out his trial position on any issue that was not resolved by way of a consent order.

(f) I also directed the mother to provide the following:

i. Updated section 7 expenses limited to expenses that properly qualify as section 7 expenses (notwithstanding that the Separation Agreement provides that other expenses may be treated as section 7 expenses), and which have not been paid by the Ontario Government from any disability or autism benefit;

ii. A draft order prepared by her counsel on any issues resolved on consent; and,

iii. A draft order setting out her trial position on any issue that had not been resolved. This includes proposed orders for each of the triable issues: major decision-making; parenting schedule for whatever period of time that the child continues to reside in York Region; parenting schedule if the child relocates to Montreal, and the timing of the relocation if it is ordered; an imputed income for the mother, an imputed income for the father; the parties’ proportionate share of section 7 expenses; any other issues.

(g) When the father failed to produce a Financial Statement, I provided an opportunity for him to do so on the second day of trial;

(h) The father was sworn in at the start of the trial before making any submissions;

(i) When the father failed to produce a draft order, I reviewed the mother’s draft order and asked that he provide his position on each head of relief;

(j) Throughout the trial I reminded the father of the issues that the Court must decide, I explained direct and cross-examination processes (with examples) and I permitted him to rely on his notes; and,

(k) I employed active adjudication and asked questions where there were gaps. I did so to ensure that I had the available evidence.

Credibility and Reliability

34Jarvis J. summarizes the relevant considerations when assessing credibility and reliability as follows:³

[28] As has been frequently observed, the assessment of witness credibility is an inexact science, impossible to articulate with precision. For example, a witness may impress the court with the coherence and logic, or common sense, of their narrative but be unreliable due to their interest in the outcome of the case or the lack of probative information. Or a witness may be so interested in a case that they are incapable of making an admission or facilitating the disclosure of information that they perceive as helpful to the other party and harmful to their case. These affect the weight to be given to that evidence. There is, quite simply, no one-size-fits-all template. Several of the many considerations relevant to the weighing and assessment of witness credibility and reliability, and relevant to his case, were comprehensively reviewed in Al-Sajee by Chappel J. who aptly observed that,

…the judge is not required by law to believe or disbelieve a witness’s testimony in its entirety. On the contrary, they may accept none, part or all of a witness’s evidence, and may also attach different weight to different parts of a witness’s evidence (see R. v. D.R., 1996 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.), at paragraph 93; R. v. J.H., 2005 253 (ON CA), [2005] O.J. No. 39 (Ont. C.A.) at paragraphs 51-56; McIntyre v. Veinot, 2016 NSSC 8 (S.C.), at para. 22).¹⁴

35As stated above, the mother’s evidence was consistent, and she had a clear recollection of various events and the timing of same. Her testimony is supported by emails and text messages. I found her to be a straightforward and credible witness.

36In contrast, there are significant credibility issues with the father’s evidence. I accept that he finds court documents, form 13.1 Financial Statements, corporate Financial Statements, his ITRs and other business processes to be confusing. The father states that he cannot understand these documents which is made worse by his depression (and other self-diagnosed mental health issues). However, the father initially had legal representation (in 2018 when he produced his Answer and sworn Financial Statement), and his accountant produced his 2017 to 2019 Financial Statements and some ITRs. Therefore, he had professional advice and assistance at various times.

37The father called no witnesses to support his positions in respect of his mental health issues or his finances. He provided no documentary evidence (such as text messages or email evidence) to contradict the mother’s evidence (in respect of parenting or finances).

38During the father’s evidence he often contradicted himself (for example stating he will not work for the next two years and later stating that he plans to find a part-time job in early 2022). The father testified that he had produced all of the available financial disclosure until just before the conclusion of the trial when he attempted to file some missing 2019 bank/Visa records. The father blamed third parties for the contradictory representations of his finances (for example, his accountant who produced the ITRs and corporate Financial Statements).

39However, I note that the father answered questions openly. He also provided considerable evidence that is adverse in interest to his position in respect of his employability and income. I make the following findings from the father’s testimony;

(a) The father’s life has been negatively impacted by the older sons’ refusal to see him, he feels alone and his mental health has been affected. Aside from following up a few times on referrals made by his doctor in 2016 or 2017, and taking prescribed mediation for approximately one year (2017?) the father has taken no steps to address his mental health issues;

(b) The father has “no life” outside of his parenting time with the child, with whom he has a close and loving relationship;

(c) The father would like to have a relationship with the older sons;

(d) There was a cash element to his business, Alkhor Kitchens, when there was a financial incentive to accept cash (during periods of time when his revenue exceeded the HST that he needed to pay on purchases);

(e) When the father received cash he did not deposit same in his bank accounts. He was audited regularly by CRA;

(f) He intermingled his personal expenses and business expenses. He paid some personal expenses from his corporate bank account and some corporate expenses (such as suppliers) from his personal Visa;

(g) His brother lent him money at various times. Some of this debt was re-paid when the father manufactured machines and cabinets for his brother. A text to the mother states that he borrowed funds from his brother in the amount of $40,000. That amount is one of several unidentified deposits in the father’s bank account statements;

(h) The father paid child support in the amounts that he felt he could afford (of at least $1,000 per month in table support as per the SA but not necessarily his 50% of section 7 expenses);

(i) The father closed the business and, as of June 2021, is merely completing projects that he started before that date. He has sold and is attempting to sell his machinery; and,

(j) The father stopped attending the semi-annual home shows in Spring 2019, which where he typically found leads to support his business. In 2020 and 2021, he accepted a few contracts. In 2021, he declined to accept two or three opportunities as he felt unable to complete any further jobs due his mental health issues, the stress of this industry and the physical demands.

Material Change in Circumstances

40The parties’ SA is silent as to any possible variation of the parenting terms, or relocation.

41In contrast, the SA specifically contemplates that child support can be varied if there is a material change in the condition, means, needs or other circumstances of the parents or the children that would affect the child support. Such a change may be foreseen, foreseeable or unforeseen (paragraph 5.6 and 5.7).

42Irrespective of a material change clause the Court has the power to vary certain terms of a separation agreement that is filed with the Court under section 35 of the Family Law Act⁴.

43In Skinner v. Skinner, the Court described the following principles respecting the variation of a consent order citing the Supreme Court of Canada in L.M.P. v. L.S. (paras. 172 to 174):

(a) The Court must be satisfied that there has been a change of circumstance since the making of the prior order (or in this case the Agreement);

(b) The “change of circumstances” must be “material” meaning that “if known at the time, would likely have resulted in different terms”;

(c) The focus is on the prior order (or in this case the Agreement) and the circumstances in which it was made;

(d) The Court should not depart from it lightly. The test is whether any given change “would likely have resulted in different terms”;

(e) What will amount to a material change will depend on the actual circumstances of the parties at the time of the order; and,

(f) The subsequent conduct of the parties may provide an indication.

44L.M.P. v. L.S also stands for the general provision that where there is a material change in circumstances clause in an agreement, the Court must examine the terms of the separation agreement and the circumstances of the parties at the time of the agreement to determine what amounts to a material change.

45I find that there have been several material changes in circumstances since the execution of the SA, as follows:

(a) The older boys stopped all parenting time with the father in or about October 2017, which has added to the mother’s burden in caring for these children without any assistance from the father. The increased responsibilities impact the mother’s time, finances and well-being;

(b) For an extended period of time the father has provided considerably less assistance for the child than the agreement anticipated;

(c) The child’s medical and therapeutic needs have increased since the time of the agreement. The expenses have increased, and the available government assistance has decreased;

(d) The mother requires family support (respite/childcare, emotional support and financial assistance) which has not been provided by the father. Given the ongoing level of conflict and animosity, the father is not in the position to offer the kind of support that the SA contemplated. The father has not taken an active role in engaging with medical or other therapeutic professionals or with the school;

(e) The father did not pay sufficient section 7 expenses causing the mother financial hardship;

(f) The father failed to provide annual financial disclosure as required by the SA, section 21 of the Federal Child Support Guidelines⁵, and the caselaw⁶;

(g) The table amount of child support is insufficient to meet the children’s needs and lower than what is appropriate given the father’s actual and/or reasonable imputed income for 2017 to 2021.

46I find that the material change in circumstances took place in October 2017. It was as of that date that the older boys ceased their parenting time with the father, and he stopped paying his 50% share of the children’s section 7 expenses.

47Since I have found that there has been a material change in circumstances in respect of parenting and child support, the Court must conduct a fresh analysis of the issues from October 2017 forward.⁷

III. Relocation

Parenting Orders Under the Divorce Act

48On March 1, 2021, the parenting provisions contained in the Divorce Act, RSC 1985, c.3 (2nd Supp). came into force. The amended provisions apply to the matter before me. These are the same as those contained in the Children’s Law Reform Act, R.S.O 1990 c. 12.

Best interests of the child

49In E.M.B. v. M.F.B.,⁸ Mandhane J. explains the judge’s role at paras. 62-63:

“When making a parenting order, I must stay laser-focused on the child’s best interests: preferences or “rights” play no role except insofar as they are necessary to ensure the best interests of the child: Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at paras. 74-77, 159, 210.

According to the Divorce Act, to judicially determine the child’s best interests, the court must “give primary consideration to the child’s physical, emotional and psychological safety, security and well-being”, while considering “all factors related to the circumstances of the child.”

Relocation Orders Under the Divorce Act

Best interests of child — additional factors to be considered

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

(a) the reasons for the relocation;

(b) the impact of the relocation on the child;

(c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

(d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

(e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

(f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

(g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

50Section 16.93 sets out the burden of proof when relocation is requested.

Burden of proof — person who objects to relocation

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

51Section 16.92(1) sets out the best interest factors in addition to those set out in s.16 where the Court is being asked to authorize a child’s relocation. While many of these factors may be subsumed under s.16 and would typically form part of the best interests analysis, they target critical considerations consistent with the observation in Berry v. Berry⁹ that “the superordinate consideration in a mobility case is the best interests of the child from a child-centred perspective.”

52The father’s bases his request that the Court deny the mother’s proposed relocation on the following evidence and considerations:

(a) If the child relocates to Montreal he will be taken away from the father. The thought of spending only one weekend per month with the child is devastating to him. The relocation is not in child’s best interests because it will impact their time together, and their close and loving relationship;

(b) The father requires time to participate in therapeutic activities (speech and physical therapy) that he has researched online. He would like to have the child in his care all day on Wednesdays to do these activities and to take him to Boomerang, an agency that can provide therapeutic support. (He cannot do so as the child already receives various therapeutic services in school and in the community);

(c) The father believes that the child has too many medical appointments and not enough therapy, which can be remedied by increasing the child’s time in the father’s care; and

(d) The father cannot move to Montreal as there are people there who do not like him.

53The mother’s request to relocate, the evidence and my analysis of the additional factors set out in section 16.92(1) of the Divorce Act are detailed below.

The Reasons for the Mother’s Proposed Relocation - Section 16.92 (1)(a):

(a) The mother requires her family’s support to meet the children’s needs. An annual break from parenting (provided by relatives in Montreal) is her only respite. The older boys do not always feel that their needs are being met because of the attention that the child requires. The past two years have been particularly difficult for the mother as the father ceased all contact with the child (for approximately four months) and the child’s medical and therapeutic needs have increased. There are frequent appointments and considerable missed school (for illness and appointments). There are regular trips to the Hospital for Sick Kids in downtown Toronto. To facilitate the online schooling she was required to sit with the child all day. He cannot be left alone (given his age and special needs). The mother’s sole support network is in Montreal aside from one friend and the father (whose commitment has varied over the years). Montreal is considerably more affordable than York Region;

(b) The mother is retraining (online at CDI College) and will complete a supply management course on or about Summer 2022, when she fulfills 400 hours of an internship and finishes her coursework. It will be easier for the mother to secure full-time employment (with health benefits) in Montreal as her brother and a family friend have strong employment contacts. The mother has four siblings, a sister-in-law and her mother (who does not work during the day) who can assist with appointments or childcare when the is ill. Without their support the mother cannot obtain full-time employment as she must always be available for the child;

(c) The maternal family members are prepared to assist with the transition and provide financial support to the mother (although I note that they already provide some financial support);

(d) The mother’s current residence is isolated from her relatives and from the community where the family resided during the marriage. The oldest son may attend university in Montreal, and neither of the older boys have close friends in their community;

(e) All of the children have close relationships with the Montreal relatives and visit them regularly;

(f) The mother has already explored options in respect of professionals who may be able to meet the child’s needs in Montreal; and,

(g) Most of the father’s relatives live in Montreal. They too can support the family as the child has spent time with those relatives over the years.

The Impact of the Relocation, the Amount of Parenting Time, and the Reasonableness of the Proposal - Section 16.92(1) (b), (c) and (f):

(a) It is not disputed that the father has a close and loving relationship with the child. Unless the father opts to move to Montreal his in-person contact will be less frequent, as the child currently resides in his care alternate weekends from Friday to Sunday. Moreover, the parties have agreed to expand the father’s parenting time to include Wednesday afternoons pending any move. Virtual access can be arranged to take place regularly (two or three times per week) irrespective of where the child resides;

(b) Since the father has never exercised the considerable time available to him in the SA, if he chooses to do so this will make up for the lost weekend per month. I note that the child had no parenting time with the father for approximately four months in 2020. The only extended holiday/vacation time took place in Summer 2021, and the father testified that the child was homesick by the end of the 10 days. A Christmas trip scheduled for 2019, did not take place when the child became anxious and was screaming during the car ride to Montreal. The father returned him to the mother in York Region;

(c) The mother proposes to be flexible with the father once she relocates to Montreal. This includes expanding his one weekend per month to include any PA/PD day and with a return to school on Mondays. She is prepared to agree to added time on reasonable notice. If the father moves to Montreal, his Wednesday afternoons will be expanded to overnight parenting time. If the father exercises his March Break/Easter/Summer Break/Thanksgiving/Christmas Break parenting time as provided in the SA, he will have more time than he currently enjoys;

(d) The mother is prepared to share the driving responsibility for Summer Break and Christmas Break. She has offered the father an extra week in August. If the mother can afford plane tickets (and if the child feels comfortable) she is prepared to pay for same;

(e) To date the father has not contacted any of the doctors or therapists to understand how to care for the child or to learn about his current medical and therapeutic needs. He reports doing research online and implementing his own speech and physical therapy (and he denies knowing about any services/care notwithstanding the provision of receipts and information). If he chooses to become more involved with the child’s needs, the father may contact the professionals wherever the child resides; and,

(f) The father has little/no knowledge of the child’s educational needs, his Individual Education Plan, and the provision of a one-to-one worker at school. The father has not been actively involved to date but may do so at his discretion.

Compliance with Notice Provisions, Agreements and the Likelihood of Future Compliance - Section 16.92(1) (d), (e) and (g):

(a) The mother provided proper notice of her intention to relocate. The father never responded (although the mother is well aware of his disagreement with this plan);

(b) The father has not complied with the parenting terms of the SA for various reasons including: (a) the older boys refuse to attend for his parenting time; (b) the father has not asked for the time provided; (c) the father thought it was best for the child not to have parenting time during part of 2020; and, (d) it is not clear how much time the father can manage given the child’s high needs and the father’s stated depression;

(c) Commencing October 2017 (when the older boys terminated access) the father stopped complying with the SA in respect of the provision of 50% of the section 7 expenses. While he provided lump sum payments at various times from 2017 to 2021 (in amounts that he could afford and which he believes are reasonable), these payments were not in compliance with the section 7 amounts that were owed. Consequently, the mother has experienced financial difficulties in respect of her attempts to meet the children’s needs;

(d) The father’s commitment to the child has stabilized since re-commencing parenting time on or about November 2020. He has requested additional time (now expanded to include Wednesdays) and has indicated an interest in becoming more involved in the child’s care and appointments. However, the mother cannot rely on the father given: (a) his decision to terminate parenting time in 2020 (after she declined to reconcile); (b) the lack of insight that he has about the impact on the child of terminating the parenting time; and, (c) the challenges he expresses that are related to his depression and an inability to cope, work or function (at times). If the child’s needs increase, if his behaviour becomes more challenging and/or if the father’s mental health worsens, he may unable to comply with the parenting time schedule. Any of these changes will likely increase the stressors placed on the already-burdened mother; and,

(e) The SA contemplates that the parties will continue to live near each other so that the children will have frequent contact with both parties. Neither party is permitted to move the children’s permanent residence from thirty (30) kilometers without the other’s written consent or court order. However, as stated above, the two older boys have no parenting time with the father, and the child’s parenting time has been limited to alternate Fridays to Sundays (with the very recent addition of Wednesday afternoons which was contemplated in the SA but not followed to date).

Conclusion

54The father has failed to meet the burden of persuading the Court that the proposed move is not in the child’s best interests. The child will be surrounded by relatives in Montreal, and the mother will receive the support that she requires to best meet all three children’s needs, and the family’s financial needs.¹⁰ The father (who is from Montreal) has the option of relocating as well. Given the father’s testimony that he has no life other than the child, has no friends and does not go out, and given that the father has closed his business (effective June 2021) and has sold his home (with an anticipated date to vacate of March 2022), a move to Montreal may be in his best interests as well. Ultimately, that issue is for him to decide. If the father opts to remain in Ontario, the mother’s plan for his parenting time and her willingness to assist with the transportation (and costs) are reasonable.

55The mother may relocate with the child to Montreal no earlier than July 16, 2022.

Retroactive and Ongoing Child Support and Section 7 Expenses

56There are three children who require financial support. W. will graduate high school in June 2021 and enroll at university in September 2021. He may reside with relatives but will otherwise need residence or a rental apartment. M. will likely enroll in a post-secondary program commencing September 2023. The child has considerable section 7 expenses that are not covered by Autism Ontario or the Ontario Government (aside from Passport Funding).

57Neither party is currently employed. I am imputing an income to the father to determine an appropriate amount of child support, and to each of them to determine their respective shares of section 7 expenses.

The Parties’ Incomes for Support Purposes: Imputing Income

58The starting point for this analysis is section 19 and Schedule III of the Guidelines. The relevant subsections are as follows:

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(e) the spouse’s property is not reasonably utilized to generate income;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax

Reasonableness of expenses

(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.

59The leading case that defines intentional under-employment in Ontario is Drygala v. Pauli.¹¹ “Intentionally” means a voluntary act. The person required to pay support is intentionally under-employed if that person chooses to earn less than he or she is capable of earning. The person required to pay support is intentionally unemployed when he or she chooses not to work when capable of earning an income.

60When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances.¹² The factors include age, education, experience, skills and health of the parent. The availability of job opportunities, number of available work hours (in light of the parent's overall obligations including educational demands), and a reasonable hourly rate may be considered.

61For the reasons that follow I find that each party is intentionally under-employed.

The Father’s Income

62There have been gross deficiencies in the provision of financial disclosure in this case from April 2018, and until today. This includes non-compliance of the requirements set out in section 21 of the Guidelines, the SA, the Rules and the mother’s Requests for Information.

63The father testified that he experienced depression (and states he may have bi-polar disorder) that remains untreated. This has impacted his ability to continue operating Alkhor Kitchens. He states that manufacturing kitchens is physically challenging, and he is now 55 years of age. The father provided no medical evidence to support any of the above statements. Other than following up in 2017 on referrals made by his doctor for counselling support, and taking prescribed medication for approximately one year, he admits to taking no steps to address his mental health. He plans to use some of the net proceeds of sale from his home for mental health services.

64While the father operated the business after separation, it was not as profitable as before separation. The business typically yielded 25% of its revenue as profit, he owes back HST/corporate taxes. (The father has not served his 2019 personal taxes and has not filed is 2020 ITR. There is no evidence that he has filed his 2019 or 2020 corporate TR). While the father previously had employees to assist, he was forced to discontinue their services due to the company’s poor finances. Once the father moved the business and showroom from Mississauga and into the farm property that he purchased, he could no longer complete certain tasks himself (such as painting the cabinets) due to environmental restrictions.

65The father stopped attending home shows in Spring 2019. Since his business relied on leads that he found at the home shows (and repeat business from designers), this undoubtedly impacted Alkhor Kitchens.

66At various times the father advised the mother of his poor financial circumstances, and his inability to remain current with his child support. As of 2021, he stopped making any voluntary payments to the children’s section 7 expenses (and he previously paid what he could afford/what he believed was reasonable).

67There is at least one text from the mother reminding him of the need to support the children and advising him to seek an employment position.

68The father advised the Court that he entered into a few kitchen contracts in 2020 and 2021. Due to mistakes on his part, he caused delays to the projects, incurred costs and earned no/nominal profit. The father declined two or three projects in 2021. He can no longer operate the company, which is not a good business and is stressful. The father sold some of his machinery as of July 2021 and has been merely completing projects since then. The remaining machinery is listed for sale on Kijiji.

69When asked about a kitchen project from Summer 2021, the father testified that he was initially paid $20,000, was paid $20,000 part-way through and will be paid $10,000 on completion (based on the standard payment plan of 40%/40%/20%).

70The father also testified that in “good years” he did one project per month. Alkhor Kitchens’ last “good year” based on the available evidence has corporate bank deposits of $320,000 (2017). The father admits to receiving $15,000 or $20,000 in cash during “good years.”

71The father’s decision to effectively walk away from Alkhor Kitchens knowing that he has an ongoing child support obligation is unacceptable, as is his decision not to seek alternate employment. The father has 30 years of experience in kitchen design, manufacturing, sales and customer service.

72It is impossible to devise an accurate income for the father based on the available financial disclosure. The following documentation was never provided to the mother: (a) Visa statements for 2017 and 2019; (b) Personal ITR 2020 and 2021; (c) Corporate TR 2020 and 2021; (d) back-up documentation to support the amounts claimed in his November 24, 2021 Financial Statement (sworn at the trial) including two lines of credit, the Agreement of Purchase and Sale of the home, his CIBC bank account; (e) missing records in respect of his mortgage application (2016) and car loan application (2017); (f) all corporate and personal bank statements for 2019 (some of which he offered to produce during the final hour of the trial but I declined to accept); and, (g) missing Alkhor Kitchen corporate Financial Statements.

73While the father states an intention to complete his 2019 to 2021 personal and corporate tax returns and Alkhor Kitchen Financial Statements once he has funds from the sale of his home, the failure to produce same is not acceptable. This matter has been ongoing since 2018, and it was/is the father’s obligation to complete these materials in accordance with the applicable legal requirements.

74In any event, the materials produced are not particularly helpful as they contradict one another. The father states a lack of understanding (and takes no responsibility) for the materials that have been filed in this proceeding or with the CRA.

75While the mother requests that I impute an income to the father of $100,000, I have opted to use the amount of $80,000 instead for the following reasons¹³:

(a) While the parties set the father’s income at $50,000 (and his share of section 7 expenses at 50% notwithstanding that the mother had no income) in the SA, at the start of the trial the father stated that child support can be based on an imputed income of $80,000;

(b) He has had a low declared income and therefore little personal income taxes, if any, are owing for 2019 to 2021. It seems unlikely that there will be significant amounts owing for corporate income tax for 2019 to 2021 (although there may be outstanding HST);

(c) The mother initially requested an imputed income of $80,000. At times she has stated that the range of $80,000 to $100,000 should be imputed;

(d) I accept the father’s evidence that the business decreased from 2016 to present (in part because of his mental health issues, his disinclination to continue the business, increased costs, and other challenges);

(e) There is no incentive to take cash when revenues are low, so I accept that the cash revenue has not been significant in recent years;

(f) I also accept that some of the unexplained deposits were loans from his brother (as stated in one of his texts). The round number deposits are significant. On the balance of probabilities, I find that these loans assisted the father to pay his significant annual expenses of $69,000. The amounts owed to build machines/cabinets for the brother are unlikely to cover the quantum of loans provided;

(g) The father’s poor financial situation has led to his decision to sell his home. While he produced no evidence to support the line of credit debts or the $120,000 owed to his family, I do accept that he has some significant debts;

(h) The father has not lived a luxurious lifestyle. His Visa and bank statements show meals from McDonalds and payments for supplies. He has taken no expensive vacations. Other than his home and a work vehicle he has no assets of value;

(i) The payments provided by the farmers (averaging $8,000 per year) will end in 2021;

(j) The father opened an RESP after separation and cashed it in due to his financial circumstances; and,

(k) An annual income of $80,000 is reasonable if the father takes steps to secure full-time employment given his skills (and his testimony that he has a few leads for early 2022, although he is only seeking part-time employment).

The Mother’s Income

76For the purposes of the mother’s income to determine section 7 expenses, I find that from 2017 to 2021, the mother’s income is imputed to $27,000 per year for the following reasons:

(a) That is an amount acknowledged by her counsel to be reasonable (as she requested $25,000 or $27,000);

(b) While it is below minimum wage it is not dramatically lower;

(c) The mother has had sole responsibility for the child, which requires her to be available on short notice when he is sick or must attend appointments;

(d) The mother’s business failed in 2020 and earned no/nominal income before that time;

(e) When the child attended online school for months in 2020 and weeks in 2021, the mother needed to be home attending to his needs; and,

(f) The mother must also provide care for the older boys.

77For 2022 onwards, I am imputing the mother’s income at $40,000 for the following reasons:

(a) Pending a move to Montreal, the father states that he would like additional time with the child. He testified that he is available to assist with appointments and care for the child. The father does not intend to work full-time for the next two years (although the Court suggests that he reconsider this plan);

(b) The mother intends to complete her educational program (courses and internship) by Summer 2022. She anticipates being able to secure employment in this field;

(c) Once the mother relocates to Montreal relatives will assist with employment and child-care/appointments;

(d) The two older boys continue to reside in the home (until at least August 2022). They can provide some assistance;

(e) The child has returned to in-person school full-time (except for his appointments and illness);

(f) The mother is trained in ABA and has been employed in this field;

(g) There may be some job opportunities that enable the mother to work virtually; and,

(h) Commencing January 2022, minimum wage in Ontario increases to over $30,000 per year.

78The parties’ incomes for their proportionate sharing of the child’s section 7 expenses is: (a) from October 2017 through 2021 – 75% (father - $80,000) and 25% (mother - $27,000); (b) January 2022 onwards – 66% (father - $80,000) and 34% (mother - $40,000).

Child Support and Section 7 Expenses

79Section 15.1 of the Divorce Act deals with child support, the relevant provisions of which are (1), (3), (4) and (6).

Child support order

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

Guidelines apply

(3) A court making an order under subsection (1)…shall do so in accordance with the applicable guidelines.

Terms and conditions

(4) The court may make an order under subsection (1)…for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

Reasons

(6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.

80In addition to table child support, the mother has claimed a contribution by the father to the children’s special or extraordinary expenses pursuant to s. 7 of the Guidelines.

Special or extraordinary expenses

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

(a) childcare expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

Definition of “extraordinary expenses”

(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

81Commencing October 1, 2017, the father shall pay the table amount of child support for three children based on his imputed income of $80,000, in the amount of $1,583 per month.

82The father owes child support in the amount of $80,733 (October 2017 though December 2021), before any credit for the child support paid to date.

83Child support shall end for each child when he is no longer a “child of the marriage” as defined in section 2(1) of the Divorce Act¹⁴.

84If any child attends post-secondary school on a full-time basis and resides away from home (in residence, in rental accommodations or with a relative to whom rent is being paid), the table amount of that child shall be reduced to 5/12 of his share (as the father will be contributing to housing expense as part of the section 7 post-secondary expenses).

85I have reviewed the list of requested section 7 expenses that was provided by the mother through the lens of the reasonableness and necessity of same. As summarized recently by Somji J. in Brophy v. Blair¹⁵:

In Clancy v Hansman, 2013 ONCJ 622, Justice Sherr reviewed some of the principles derived from the caselaw with respect to claims for s. 7 expenses. They can be summarized as follows: one, the onus is on the parent seeking expenses to prove that they fall within one of the categories under section 7 of Guidelines; two, the list of special and extraordinary expenses under clauses 7(1) (a) to (f) is exhaustive, and if a claim does not fall within any of the listed categories, then it must be dismissed; three, expenses for usual or ordinary extracurricular activities for a family are included in the table amount of support; and four, section 7 expenses involves the exercise of judicial discretion. When exercising its discretion, the court should consider the objectives of the Guidelines, including clause 1(a) which is to establish a fair standard for children and that they benefit from the financial means of both spouses after separation: Clancy at para. 96.

86I decline to include the following items in my analysis: (a) seasonal clothing (notwithstanding that this was listed as a section 7 expense in SA). As per the mother’s request I have retroactively increased the table amount of child support and the father’s share of section 7 expenses. She will therefore receive a higher amount of support; and, (b) Canada’s Wonderland, school uniforms, school trips and other minor school expenses. These are appropriately included in the table amount of child support.

87I have included certain expenses for the following reasons: (a) laptops for each of the older boys as the online schooling required same¹⁶, and a treadmill and therapy toys for the child as a form of therapy; (b) cell phone expenses as these are a reasonable expense for teenage boys; (c) instrument rental; (d) lessons, physical/occupational/speech therapies, glasses, medical expenses, dentist, driver’s licence, respite (not covered by the Passport program or other government program) and camp as these are traditional section 7 expenses.

88The total amount of section 7 expenses owed from October 2017 through October 2021 is $21,417. The father’s 75% share is $16,063 plus a reasonable amount for November and December 2021.

89The father owes child support and section 7 expenses in the amount of $96,796. From October 2017 through December 2021, the father has paid the sum of $58,700 (as per the mother’s calculations). There is an amount owing of $38,096.

90On a go-forward basis the father shall pay his 66% share of section 7 expenses. While the mother proposes a cap of $500 per month, my calculation yields a considerably lower amount of anticipated section 7 expenses as defined by paragraph 87(b) to (d) above.

91Commencing January 1, 2022, the father shall pay section 7 expenses in the amount of $193 per month, which shall be collected by FRO. That equates to his 66% share of an estimated total of $3,500 annually. If the mother spends more than this amount, she may make a request directly to the father for his contribution. Unless the activities, camp, respite or therapies are excessively expensive the father is expected to contribute to same.

92Payment of the children’s post-secondary expenses shall be as per the MacPherson J. consent order dated November 29, 2021. The proportionate shares are: 25% (paid by the son attending post-secondary school); and the remaining 75% shared 66% ( paid by the father) and 34% (paid by the mother).

VII. LIFE INSURANCE

93The father admits that he never obtained life insurance in violation of the SA. Security for child support is imperative, particularly since the child will likely continue to be a “child of the marriage” as defined by the Divorce Act throughout his life.

94Given the ages of the children and the father’s imputed income of $80,000 the appropriate quantum of life insurance is $100,000.

95Pending confirmation that the father has obtained the required life insurance (and has paid all premiums for at least one year) there shall be a payment of $100,000 to the mother’s solicitor, in trust. The father’s real estate solicitor shall be directed to make the required payment from the net proceeds of sale before releasing the balance of the funds to the father. The funds will be released to the father once he complies with this obligation.

DISPOSITION

Parenting Time

1. The consent order dated November 24, 2021, shall continue in full force and effect, except as varied by the order signed by me this day.

2. On consent, the Father’s summer parenting time shall commence the first Saturday after the last day of school and shall end two Saturdays later, and shall commence the last Saturday in August and end one Saturday later, unless otherwise agreed to by the parties.

3. The father shall confirm his intention of exercising his summer, long weekends, Father’s day, holiday and vacation parenting time (as per the SA dated May 25, 2016). This confirmation must be done in writing and at least 14 days in advance of the start of the parenting time, failing which the parenting time shall be cancelled.

4. On consent, until the mother relocates to Montreal, she may travel with the child for up to five consecutive weeks during Summer Break (between the father’s two parenting time periods as set out in paragraph 2 above). The father may have parenting time for one weekend (Friday to Monday) in Montreal during the mother’s vacation parenting time, on 14 days’ notice.

5. The father may have virtual parenting time (skype, facetime, what’s app or zoom) with the child two or three times per week, at agreed upon dates and times.

6. On consent, the father may have additional or other parenting time as agreed to by the parties, in writing.

Relocation

7. The mother is permitted to move to Montreal, Quebec with the three children.

8. The move may occur anytime after July 16, 2022.

9. The mother shall provide 120 days notice of the move to Montreal including all details of the date of the move and the new address along with all the new heath care professionals for C.

10. After the relocation, the mother shall facilitate and provide parenting time at least one weekend per month, from Friday after school to Monday return to school (and extended by 24 hours if there is a PA/PA day). If the father relocates to Montreal, his parenting time shall take place on alternate weekends (Friday to Monday) and every Wednesday after school with a return to school on Thursdays.

11. After the relocation, the mother shall compensate the father for the cost of gas for the monthly parenting time, if the father continues to reside in Ontario.

12. After the relocation, the mother shall be responsible for the drop off and the father for the return of the child for both periods of summer parenting time, if the father continues to reside in Ontario.

13. After the relocation, the father shall have at least one week of parenting time during Christmas and the mother shall arrange at her expenses for C. to travel to the father either by car or plane. The father shall be responsible for picking up C. if by plane and shall be responsible for ensuring his return if by car, unless otherwise agreed in writing. This applies if the father continues to reside in Ontario.

Child Support and Section 7 Expenses

14. The father’s income shall be imputed to $80,000 per year for child support purposes.

15. Commencing January 1, 2022, and on the first day of every month thereafter, the father shall pay child support in the amount of $1,583 per month for the three children of the marriage.

16. The parties shall share the children’s special and extraordinary expenses, proportionate to their respective incomes taking into account the income tax deductions or credits relating to the expense.

17. Based on the father’s imputed income of $80,000 and the mother’s imputed income of $27,000 he shall pay 75% of the Children’s special and extraordinary expenses from October 1, 2017 through December 31, 2021 and 66% thereafter. As of January 1, 2022, the mother’s income is imputed to $40,000 and she is liable for 34% of the section 7 expenses.

18. Commencing January 1, 2022, and on the first day of every month thereafter, the father shall pay child support in the amount of $193 per month for section 7 expenses excluding post-secondary expenses. If the mother spends more than $3,500 per year, she may make a request directly to the father for his contribution to the added section 7 expenses. Unless the activities, camp, respite or therapies are excessively expensive the father is expected to contribute his proportionate amount.

19. The mother shall not be required to consult with the father prior to incurring any listed s.7 expenses (as defined in paragraph 87 (b) to (d) above).

20. At least twice per year the mother shall provide receipts for the section 7 expenses.

21. If there is any government funding for expenses, respite or programs for C. these shall be applied first before seeking a contribution from the father.

22. Each child’s post-secondary expenses shall be paid as set out in the Macpherson J. consent order dated November 27, 2021.

23. If any child attends post-secondary school on a full-time basis and resides away from home (in residence, in rental accommodations or with a relative to whom rent is being paid), the table amount of that child shall be reduced to 5/12 of his share (as the father will be contributing to housing expense as part of the section 7 post-secondary expenses).

24. The parties shall exchange updated income disclosure with each other no later than June 15th of each year in accordance with section 21 of the Child Support Guidelines. The Table Child Support amount and proportionate share of s.7 expenses shall be adjusted based on this exchange.

25. Child support for each child shall end when he is no longer a “child of the marriage” as defined by section 2(1) of the Divorce Act.

26. SDO to issue.

27. Unless the support order is withdrawn from the Director’s Office, at the Family Responsibility Office (FRO), it shall be enforced by the Family Responsibility Office and the Director’s Office; the amounts owing under the order shall be paid to FRO, who shall pay them to the person to whom they are owed.

Arrears

28. The father shall pay the mother an amount of $22,033 for arrears in Child Support.

29. The father shall pay the mother the amount of $16,063 in section 7 arrears.

30. The arrears shall be paid on closing from the net proceeds of sale of 230 Woodchoppers Lane, Kettleby, Ontario, or by June 1, 2022, whichever is earlier. Once the arrears have been repaid, the order that the sum of $45,000 be paid into Court (as per the Jarvis J. order dated April 27, 2021), shall be vacated.

Life Insurance

31. The father shall obtain life insurance in the amount of $100,000 naming the children as irrevocable beneficiary and the mother as the irrevocable trustee. This policy shall be kept up to date and the mother shall be entitled to contact the insurance company directly and shall be informed if the policy is to be cancelled. He shall indemnify her for any payments she makes on the policy should he fail to keep the policy current. Any payments made by the mother shall be collectable as support by FRO as support upon proof of payment by the mother.

32. Pending confirmation that the father has obtained the required life insurance (and has paid all premiums for at least one year) there shall be a payment of $100,000 to the mother’s solicitor, in trust. The father’s real estate solicitor shall be directed to make the required payment from the net proceeds of sale before releasing the balance of the funds to the father. The $100,000 shall be released to the father once he complies with the obligations respecting life insurance.

33. The child support shall be a first charge on the father’s estate if the life insurance ordered above is not current, has been cancelled or is otherwise not in full force and effect at the date of the father’s death.

Medical and Dental Expenses

34. The father shall ensure that the children are enrolled as dependants for any health and dental benefit plan that he is or may be entitled to from his employment. He shall provide the details of this plan and arrange for the receipts to be submitted directly by the mother and that payments be made directly to her and shall indemnify her for any payments received by him and not forwarded to her. Any payments not received by the mother shall be collected as support by FRO upon proof of submission and an affidavit that the amount has not been received.

Costs and Other

35. The parties are directed to take steps to resolve the issue of costs. Failing an agreement respecting same, the mother shall serve and file in the written submissions limited to three pages, exclusive of the Bill of Costs (removing all steps and any preparation where costs have been ordered or the court declined to address the issue of costs) and Offers to Settle, within seven days of the date of this decision. The father shall serve and file in the Continuing Record his written submissions, limited to three pages, exclusive of the Bill of Costs and Offers to Settle, within seven days thereafter. There shall be no right of reply. If no submissions are received within the time period set out herein, there will be no costs.

36. All other claims made in the Amended Application and the Answer are hereby dismissed.

Footnotes

1. 12021 ONCA 815 at paras. 18 - 21.
2. 2O Reg 114/99 (Courts of Justice Act).
3. 3Jayawickrema v. Jayawickrema, 2020 ONSC 2492, at para. 28.
4. 14RSC, 1985, c. 3 (2nd Supp.)
5. 4R.S.O. 1990, c. F.3.
6. 5SOR/97 - 175
7. 6Brophy v. Blair, 2021 ONSC 7703 at paras. 20 – 24, citing Coluci v. Coluci, 2021 SCC 24.
8. 7Skinner v. Skinner, 2019 ONSC 6949 at para. 5, citing Willick v. Willick, 1994 28 (SCC), [1994] 3 S.C.R. 670 at p. 688 and citing L.M.P. v. L.S. 2011 SCC 64. Upheld by the Ontario Court of Appeal, 2021 ONCA 658.
9. 82021 ONSC 4264.
10. 92011 ONCA 705 at para. 10.
11. 10H.A. v. M.M. 2016 ONCJ 246.
12. 11Drygala v. Pauli, 2002 41868 (ON CA) at para. 28.
13. 12IBID, at para. 45.
14. 13Michaud v. Kasali, 2016 ONSC 443. The Court requires some evidentiary basis for the amount imputed. Section 19(1)(f) of the Guidelines is not an invitation to fill in the blank.
15. 15Supra, note 6 at para 34.
16. 16Supra, note 6 at paras. 46-47.