Muncan v. Muncan, 2021 ONSC 82

COURT FILE NO.: FC-16-FS000365-0000

DATE: 2021-01-04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

STEVE VASA MUNCAN JR.

Applicant

– and –

ANDREEA ELENA MUNCAN

Respondent

Tania Harper, counsel for the Applicant

Lawrence Greaves, counsel for the

Respondent

HEARD: November 12, 13, 16, 17

and 18, 2020

THE HONOURABLE MADAM JUSTICE D. PICCOLI

REASONS FOR DECISION

Brief Background

[1] The Applicant, Steve Vasa Muncan Jr. (“Father”), and the Respondent, Andreea Elena Muncan (“Mother”), were married on July 23, 2005. They separated on May 1, 2011 and were divorced on June 7, 2012.

[2] They have two children of their marriage, namely Evan Stephen Muncan, born October 9, 2007 (age 13) and Derrick Adrian Muncan, born June 4, 2009 (age 11); collectively (“the children”).

[3] The parties entered into a separation agreement which attaches and incorporates a parenting plan which was finalized and signed on September 1, 2011 (“Separation Agreement”). The Separation Agreement was negotiated through mediation with Jamie Bennett, a senior lawyer in Kitchener. Both parties had independent legal representation at the time and signed the agreement with independent legal advice. The Divorce Order does not incorporate the terms of the Separation Agreement.

[4] The Mother registered the Separation Agreement in August 2020 to enforce the child support provisions therein.

[5] Pursuant to the Separation Agreement, the parties have a joint custody arrangement. The parties agreed to a 5/5/2/2 schedule. Starting in the summer of 2013, the parties agreed that for the summer periods only, the children would be in each of their care on a week about basis.

[6] The Father married his partner, Patricia (“Patti”) on July 6, 2019. He had been living with her and her two children, Matthew, age 20, and Cassidy, age 15, since June 2014.

[7] The Mother began cohabitating with her partner, Matthew E., and his three children, Isabella, age 15, Clare, age 12, and Robert, age 11, in August 2015. Matthew E.’s children have a shared parenting schedule with Matthew E. and their mother, which is identical to the parenting schedule in place for these children during the school year.

[8] The Father’s lawyer sent a letter to the Mother in September 2015 setting out, among other things, his desire to change the parenting schedule to a week about schedule. The Mother responded on September 15, 2015, stating that, among other things, she did not agree with the change in the parenting schedule. She set out the reasons why she did not agree. Her reasons included that the children were doing well with the schedule and that it was consistent with the schedule of her new blended family. On October 1, 2015, the Father’s lawyer responded stating, among other things, “Unfortunately, given the lack of movement, mediation does not seem helpful at this time. Steve has instructed me to prepare Court pleadings to seek a shared parenting schedule with week about time…” There was no further communication regarding the matter and instead, the Father commenced this court action.

[9] In his application dated April 26, 2016, the Father sought 13 heads of relief including the following: changes to the parenting schedule and other parenting issues; the manner in which pick up and drop offs were to occur; that he pay set-off child support of $840.00 per month based on his income of $119,013.00 and the Mother’s income of $54,436.00; a sharing of s. 7 expenses under the Child Support Guidelines, O. Reg. 391/97 (“the Guidelines”) and a process with respect to same; and a process for the exchange of income information and the sharing of dependant tax credits. The Father also requested that he retain the children’s original documents, including passports, birth certificates, health cards and social insurance numbers. Finally, he requested that his life insurance be reduced. All of this relief was in replacement of various paragraphs, namely paras. 7, 8 and 12 of the Separation Agreement. The Father also sought costs.

[10] The Father is adamant that the orders he is seeking are in the best interests of the children as the more detailed orders will alleviate conflict between the parties.

[11] The Mother disputes the Father’s claims and requests that the court dismiss the application. Other than costs, she did not seek any relief.

[12] The Mother is insistent that the Separation Agreement speaks to the manner in which disputes are to be resolved, that Father did not follow the process and that the orders he is seeking are unnecessary.

[13] The Father replied on June 14, 2016, indicating that he did not agree with the dismissal of his application and proceeded to set out the reasons in a three-page Reply.

[14] The matter proceeded to a case conference in August 2016. Thereafter, the parties attended a settlement conference on March 3, 2017. An order was made on consent at the settlement conference. The parties attended a further settlement conference on June 1, 2018, and then a trial management conference on May 3, 2019. They had a further settlement conference during this trial but were unable to resolve all the issues.

[15] At the commencement of the trial, I was advised that the parenting schedule had been resolved such that it remained the same.

[16] During the course of the trial and subsequent to the trial, the parties were able to reach agreements on various other issues, such that I am to decide the following outstanding issues:

1. Whether the children should be required to attend counselling;

2. The determination of income for each of the parties, in the relevant periods of time;

3. The amount of child support payable commencing May 1, 2019;

4. The pro rata share that each party would contribute towards s. 7 expenses. This pro rata determination will also apply to the sharing of the By Peaceful Waters Services that the parties have now consented to; and

5. Wording with respect to discussions involving travel.

[17] Both parties requested that any retroactive variation of child support commence May 1, 2019, and that it be calculated based on the previous year’s income as set out in the Separation Agreement.

[18] The parties filed a statement of agreed facts with the court. Both parties and their respective spouses testified. Annette Katchaluba of By Peaceful Waters also testified and was qualified as an expert witness as to being able to provide opinions and recommendations related to parenting co-ordination and divorce centered conflict, and with respect to providing the children’s views and preferences.

Parenting Issues

[19] The Father, in his application, sought to continue shared parenting, but requested a change from the 5/5/2/2 schedule for the children to a week about schedule. This issue was resolved prior to trial. The court was not advised of this until opening statements.

[20] The Father is seeking an order for the children to be enrolled in counselling without the consent of the Mother.

[21] Specifically, the Father asks the court to make the following order:

The children, namely Derrick Adrian Muncan, male, born June 4, 2009 and Evan Stephen Muncan, male, born October 7, 2007, shall be enrolled in personal counselling. The counselling shall be closed and available on an ongoing basis. The parties will make efforts in selecting the counsellor to use available benefits or counsellors through their employment. To select the counsellor, the Applicant Father will put forward three names to the Respondent mother on or before December 30, 2020. The Respondent Mother will select one of those names on or before January 15, 2021. If there is no agreement to the counsellor by January 16, 2021, the Applicant Father shall be entitled to enroll the children without the Respondent Mother’s consent.

[22] The Father’s request that the children attend counselling was not sought by him in his application. However, the Mother agrees that it is an issue that should be decided by me. For reasons set out herein I decline to make an order that the children be enrolled in counselling.

[23] The Father is also seeking an order that ”Neither parent shall discuss travel opportunities with the children until they have advised the other parent and confirmed the consent of that parent for the travel. The parents will not discuss unapproved travel in front of the children or their step-siblings and will make their best efforts to ensure the step-siblings do not discuss same with the children.” The Mother does not feel this order is necessary. The Father did not seek this relief in his application. For reasons set out herein I decline to make this order.

Facts Relevant to the Parenting Issues Raised by Father

(a) Order of Braid J. of March 3, 2017

[24] Although the Separation Agreement/Parenting Plan directs the parties to a dispute resolution mechanism (negotiation and then mediation), the parties consented to an order at the March 2017 settlement conference before Braid J. which included the following two provisions:

1. The parties, Steve Vasa Muncan Jr. and Andreea Elena Muncan, shall participate and agree for the children, Derrick Adrian Muncan, male, born June 4, 2009 and Evan Steve Muncan, male, born October 9, 2007, to participate in a private custody/access assessment to ascertain the views and preferences regarding the schedule and residence issues. The parties shall meet with the assessor to determine parameters. The cost of the assessment shall be shared by the parties in proportion to their incomes. The parties shall use By Peaceful Waters for this service.

2. The children shall be enrolled in personal counselling. The parties will mutually select a counsellor and consider those available through any work benefit (EAP). This shall be done within 14 days of this order. This shall be closed counselling.

[25] The Father maintains that the Mother is in breach of para. 2 of the order of Braid J. He argues that as a result of the counselling term not being complied with by the Mother, I should make a final order that incorporates the interim order.

[26] It bears noting that although the Father made much of his apparent attempts to engage the Mother in mediation, he declined to attend mediation with the mediator named in the Separation Agreement, namely Jamie Bennett. It also bears noting that in cross-examination, the Father admitted that he only pushed for mediation on the eve of trial in each of the trial sittings.

(b) Children’s Views and Preferences

[27] Ms. Katchaluba of By Peaceful Waters was retained by the parties to ascertain the children’s views and preferences in the spring of 2017. She did this by having individual interviews with both parents and then two interviews with each of the children. Each parent brought the children in for one of the interviews.

[28] The parents met with Ms. Katchaluba on June 20, 2017, to discuss her findings and recommendations.

[29] On August 12, 2017, at 4:56 p.m., the Father stated in an email that he would continue to pursue a change in schedule because his understanding of what Ms. Katchaluba stated was that “the boys are happy and well adjusted to their current schedule” and “if he felt that the requested schedule would be beneficial, it could still be pursued and the boys are young and resilient and would adjust to change”.

[30] On or about August 12, 2017, the Father requested that a full written report be generated by Ms. Katchaluba.

[31] On October 11, 2017, the Mother inquired regarding the status of the written report from Ms. Katchaluba who advised that the Father had asked her to “hold off” on preparing the report. The Mother asked Ms. Katchaluba to proceed with preparing the report. Ms. Katchaluba’s report was provided to both parties on December 7, 2017 (“custody assessment report”).

[32] The custody assessment report from December 7, 2017 set out substantial information, including the following:

(a) Evan and Derrick presented as confident, polite and happy children;

(b) Evan and Derrick were very clear that they have positive experiences with both of their parents and the blended family arrangements in both residences;

(c) Evan and Derrick were both very clear that they want equal time in both homes, and they do not want to be separated from one another; and

(d) Evan and Derrick described that having the 2/2, 5/5 schedule is the longest they would want to be apart from either parent during the school year.

(e) The parents should be child focused and ensure that Evan and Derrick are protected from adult conflict;

(f) Evan and Derrick will benefit when their parents have a businesslike relationship with the other parent where the business is their children’s healthy adjustment and wellbeing. Although the children do not see overt conflict between their parents, they are aware that tension exists. Choosing to continue to develop good communication strategies and respectful interactions will benefit Evan and Derrick;

(g) Before either parent takes a position on any issue, they should ask themselves how this will affect Evan and Derrick; and

(h) To consider what message they give to Evan and Derrick through their actions and/or reactions to a situation.

[33] The Father, via email correspondence from Danielle Fraser, law clerk with Tania Harper’s office, on February 7, 2018, indicated that he would withdraw the terms of his application relating to access and residency.

[34] Ms. Katchaluba met with the children again individually in October 2019 to update their views and preferences. A second report was generated in April 2020.

[35] Ms. Katchaluba remarked that for the first time in her career, despite interviewing the children these many years apart, the information generated in the second report was almost identical in all areas to the custody assessment report. The only additional concern noted was that one child expressed that maybe if his parents could move further away from each other, they would not have to interact and that this would make him feel happier. The children indicated that they were willing to give up things they want (e.g. rep hockey) if it would reduce the conflict between the parents. The children confirmed that they did not want changes to the parenting schedule.

(b) Counselling Term in Relation to Court Order

[36] In March 2017, each party reached out to their Employee Assistance Programs (“EAPs”). The Father did not have an EAP for the children. The Mother provided information to the Father from her EAP.

[37] On March 15, 2017, the parties agreed to use Carizon Family and Community Services for child counselling (“Carizon”).

[38] On March 17, 2017, the Mother advised the Father of her recommendation via email from Carizon. The Mother requested that the Father provide his consent that she take the children to the walk-in assessment. The Father did not agree to the walk-in assessment as confirmed by a March 19, 2017 email to Mother. The Father indicated that he preferred a scheduled appointment even if this meant being added to a wait list to be assessed.

[39] On March 19, 2017, the Mother emailed the Father again asking for approval to proceed with the walk-in counselling assessment. She noted that she had been informed that the assessment would provide a report for the extent and type of therapy required. The Mother indicated that she could not understand the delay by the Father given that he was saying that the children had significant behavioural issues.

[40] On March 20, 2017, the Father said he would not approve the walk-in assessment to be completed for the boys. He stated his reason as follows: “Ours is not an urgent/emergency situation for them and we could be sitting there for a long time waiting, but it is definitely something that needs to be addressed with all the issues that I guess we are only experiencing in our home.”

[41] On March 20, 2017, the Father stated, “I am certain that 2-3 months is not going to affect the boys anymore than they have already been affected”. The Father believes that the walk-in is intended for emergencies and that this was not an emergency.

[42] The Mother added the children to both the Carizon, and K-W Counselling wait lists after the Father refused to proceed with the walk-in assessment.

[43] On March 23, 2017, the Father stated, “I am glad that we mutually agree on putting the boys into counselling and that it is through Carizon”.

[44] On April 3, 2017, the Mother clarified the Father’s statement by saying, “Just to be clear, we do not mutually agree that the children require counselling” and “what we agreed upon was where this court ordered counselling will take place”.

[45] On May 17, 2017, the Mother received an email from Anita Fieguth at Carizon. Ms. Fieguth indicated that Carizon required Evan and Derrick to have a walk-in assessment. In addition, she explained that without a complete assessment, Carizon would be unable to provide counselling services to the boys. The Mother forwarded the communication from Ms. Fieguth to the Father.

[46] On June 1, 2017, the Father stated in an email “Please let me know when you plan to go as I would like to attend and be there as well”. The Mother responded on June 6, 2017, “I’ve looked at the month and tomorrow is the best Wednesday to take the kids in. You won’t miss anything. There isn’t anything for us to do. My total involvement will be to register them, wait and get the report/recommendation at the end. I will forward you the information and we will go from there”.

[47] On June 6, 2017, the Father stated, “Of course tomorrow is the best Wednesday to take them … fitting that is when I am away on vacation …” and “In any event please make sure to keep me in the loop of what happens in any reports and next steps as you’ve suggested”.

[48] The Mother took the boys to the Carizon walk-in assessment at Front Door, the centre that Carizon operates out of, on June 7, 2017. The Mother waited in the waiting room of Carizon while Alyssa Cober, counsellor (MSW RSW), spent one and a half hours with the boys together. Ms. Cober provided a written summary report which she forwarded to the Father on June 8, 2017 (“Summary Report”).

[49] The Summary Report describes the primary reason for attending as follows: “Andreea identified being “court ordered to bring the children in” due to emotional behavioural concerns identified in court paperwork.” It was also noted that both children “engaged well with this writer in this session.”

[50] The Summary Report included the following information:

(a) when given the opportunity to discuss anything that is bothering them, neither Derrick nor Evan identified anything of concern they wished to discuss further;

(b) when the option of ongoing counselling and why some children find it helpful was discussed, neither Derrick nor Evan stated this option would be something they wanted to pursue at this time;

(c) for Derrick and Evan “ongoing counselling would neither be harmful or beneficial for the boys to participate in”;

(d) the counsellor encouraged Derrick and Evan to talk to parents about feelings that are uncomfortable; and

(e) if either parent has ongoing concerns for behaviour or emotions that occurred in their home, they are welcome to attend at a walk-in session to explore additional parenting strategies they can use in their home.

[51] It is the Father’s position that attendance at Front Door does not qualify as individual counselling as set out in the court order. Although the Father may be correct, he stated in evidence that he “reluctantly agree[d]” to the Front Door assessment. Carizon indicated that counselling would proceed if so recommended by the Front Door assessment. It is the Father’s position that as a result, the interim order was not complied with and thus I should incorporate the interim order into a final order of the court that the children be required to attend counselling.

Counselling for the Children

[52] Under both ss. 16(1) and (2) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) and ss. 21(a), (b), and (c) of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, where parents cannot agree, a court may make orders about almost every aspect of the child’s life, including counselling or therapy: see A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1.

[53] The Father’s reasons for seeking counselling for the boys include:

1. It can do no harm – he wants to make sure “everything is good”.

2. He and his wife have seen behavioural issues in the children, which include:

(a) Evan bottles up his emotions and then “spills everything” which results in “bad breakdowns”;

(b) Derick has behavioural issues – lashing out with words and physically;

(c) Derrick, although “happy go lucky”, experiences a lot of highs and lows and tends to keep to himself and stay in his room;

(d) Derrick on occasion has said he has anger issues and wants help dealing with them;

(e) Derrick in an attempt to be funny ran through the home completely naked which the Father states is inappropriate given that his step-children live with them;

(f) Derrick uses terms like “I hate my life”, “I wish I was never born” and has stated in comedic terms that he hates his brother and that if his brother died he would laugh;

(g) Both children slam doors and bang on walls;

(h) Derrick has low self-esteem – an example given was drawings he made on the way to a vacation and how he started calling himself “stupid” and saying “I am no good”;

(i) Derrick’s behaviour at the eye doctor’s office where he threatened to steal glasses and or shoot the doctor if he did not get glasses (the Mother followed up with the doctor who did not report this incident, as he would be required to do if he thought the child was a danger to himself or others);

(j) His and his wife’s concerns, which include those documented in a log maintained by the Father and his wife; and

(k) One child showing his penis and talking about rape, one child speaking to the Father like the Mother speaks to the Father.

[54] The Father wants to give the children an outlet to deal with unresolved issues if any – he wants the children “checked out” to “See if everything is mentally good”. The Father states that neither the Front Door assessment nor the Mother’s response with respect to counselling were satisfactory to him.

[55] Despite all of this, the Father has stated that the boys are good, happy children who are passionate about sports. They have friends inside and outside of school. He is proud of who they are. They have good relationships. He is happy about who they have become. He identified them as happy go lucky kids. Derrick is a “firecracker”, which can be both good and bad. Evan is a smart aleck with a dry sense of humour. They both do well academically, and they are liked by their teachers. His reason for wanting them to attend counselling is just that they have said some concerning things that he wants to look into.

[56] The Mother reports that she has not witnessed the behaviours described by the Father and that the children do not display such behaviours with others when in activities or at school. Although this is not determinative of the issue, it is a factor to be considered. Mother describes the children as “great kids” who receive good grades in school, are leaders in their classrooms and who excel at sports. She points out that the children do well across all environments and no one else sees the issues that the Father has raised. Her partner, Matthew E., confirms the Mother’s evidence in this regard. The Mother disagrees that the children need counselling.

[57] The Mother believes that if the children are showing behaviours in the Father’s home which he believes need to be addressed with professional assistance, that his entire family should attend counselling. The Mother is concerned that the children are being singled out in this requirement for counselling. Among the Mother and her partner and the Father and his wife, there are seven children in total. Evan and Derrick are the only ones who are being required to submit to counselling by the Father.

[58] Both of the children’s report cards continue to show feedback that any parent would be happy to receive. They do well in school and do well with their peer groups.

[59] Both Evan and Derrick have participated in extracurricular team sports without issue. In fact, the evidence indicates that they excel in sports and are good team players.

[60] As reported in the Waterloo Chronicle, Derrick, at age ten, grew his hair out to give to Locks of Love as a symbolic gesture to his “buddy” who suffers from a rare form of cancer.

[61] In June 2019, the Mother made the following proposal to the Father:

(a) counselling includes the members of the Father’s family residing at 406 Lausanne Crescent;

(b) all six members, the Father, his wife, her two children and Evan and Derrick would be in a common room for the duration;

(c) Evan and Derrick were not to be entered into individual counselling;

(d) after an agreed upon number of sessions, should the counsellor deem that either or both Evan and Derrick require individual counselling, a report outlining findings, degree, length and goal of counselling from the counsellor was needed to be prepared for the Mother to review; and

(e) after meeting with the counsellor to discuss findings and the report, and only after receiving a conclusive, strong recommendation from the counsellor for individual counselling for Evan and Derrick, would she be agreeable to individual counselling for them.

The Father rejected this proposal.

[62] The Father is unwilling to meet jointly with the Mother and Evan or Derrick, should the need arise, to discuss any issues, concerns or wishes that the boys may have.

[63] Ms. Katchaluba expressed that the children’s biggest concern was the conflict that existed between their parents. They wanted the parents to learn to resolve their issues without involving them.

[64] It is clear in the April 2020 report that both children are really upset by their parents’ conflict and how they both say negative things about the other. Derrick went so far as to state that if he were “not here” then his parents could move farther away from each other and that the distance would help them. Evan went so far as to say he would give up his desire to play on a rep hockey team if it caused conflict between his parents.

[65] Ms. Katchaluba noted that the parents need to recognize “that their children’s emotional health is directly linked to their ability to navigate their own conflict.” The conflict and tension between the parents were noted as “the largest negative impact” on the children. She further stated that “it needs to be recognized that the effectiveness of any counselling to help these children process and heal from their exposure to the conflict is going to be significantly affected by their parent’s ability to resolve their ongoing differences and stop exposing the children to their conflict.”

[66] Ms. Katchaluba indicated that her office has a full counselling team. She clarified that when speaking to Derrick in 2019 regarding a concern related to his mental health, she assessed that he was not a child that was suicidal, but a child who felt helpless in navigating his parents’ conflict. She does not believe that these are children with ongoing mental health issues, but children who are caught up in their parents’ struggles. She referred to them as “rock solid kids” with amazing personalities who excel in what they do. She pointed out that if the children were suffering, their struggles would bleed into other areas like school, social activities and sports.

[67] Ms. Katchaluba made it clear that the parents both care deeply for their children, and that when they work with a professional they are able to figure things out, but when they stop the conflict returns.

[68] When the court asked Ms. Katchaluba whether counselling would assist the children in this situation, namely when one parent wishes the children to attend and the other does not, her response was “a parenting coach would probably be a better route to go because what I’m hearing from the kids is that they have someone to talk to, they feel like they get the support they need, and if there’s an on-going parenting struggle, what we know is that the parents are the real counsellors. They’re the ones day in and day out. And so, if the parents can get more support, likely you’ll see that child’s behaviour settle.”

[69] In Leelaratna v. Leelaratna, 2018 ONSC 5983, Audet J. thoroughly reviewed the law with respect to the court’s jurisdiction to order counselling and when, if the court has jurisdiction, counselling should be ordered.

[70] Borrowing from the factors highlighted by Jarvis J. in Testani v. Haughton, 2016 ONSC 5827, 92 R.F.L. (7th) 226, Audet J. found that the following factors are relevant to a judge’s discretion to make a therapeutic order:

(a) Is the cause for the family dysfunction (whether alienation alignment or reasonable estrangement) clear based on expert evidence or otherwise? If not, does it matter in light of the type of therapy proposed?

(b) Is there compelling evidence that counselling or therapy would be beneficial to the child?

(c) At what stage is the therapeutic order sought (motion based on potentially incomplete evidence vs. trial based on full evidentiary record)?

(d) Are the parents likely to meaningfully engage in counselling despite their initial resistance to making of the order? Will a strong judicial “recommendation” compel participation and cooperation by the recalcitrant parent?

(e) Is the child likely to voluntarily engage in counselling therapy.

[71] Despite recognizing the court’s jurisdiction to make therapeutic orders, Audet J. observes that s.10 of the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (“HCCA”), provides that treatment cannot be administered to a person without their consent. However, the application of the HCCA is circumscribed to situations where the therapeutic order sought falls within the definition “treatment” and the person administering it is a “health practitioner” as defined by the HCCA. The Father has proposed three different people that he believes could provide counselling for the boys. He admitted in closing submissions that the people he has proposed constitute health practitioners under the HCCA, and thus consent would be required before a therapeutic order could be made. Accordingly, he agrees that those persons are not appropriate in a situation where both parents do not consent. He then proposed that By Peaceful Waters could provide a counsellor or that I could deem an appropriate counsellor.

[72] The parties both acknowledge there is conflict between them. I find that it is the parental conflict that needs to be addressed.

[73] The parties had parental counselling with Ms. Katchaluba on August 29 and November 28, 2017. Ms. Katchaluba advised the parties during the November 28, 2017 session that she would be going on maternity leave and the December 21, 2017 appointment would likely be one of the last prior to the birth of her child, but that the parties were welcome to reach out to her if either party felt they needed to. The parties participated in three additional parenting counselling sessions at the Father’s request on November 7, 2019, December 10, 2019 and January 24, 2020.

[74] In addition to meeting with Ms. Katchaluba, the parties attended sessions on March 21 and April 18, 2017, with Art Bauer, parental counsellor. An email dated June 10, 2017 by the Father confirms that he was only prepared to attend one further session with Mr. Bauer and stated that “I feel that this is more than sufficient”.

[75] Over the course of the trial, the parties have reached agreements which include:

(a) their participation in email monitoring and parenting coaching services offered by By Peaceful Waters for a minimum of two years; and

(b) retaining Annette Katchaluba of By Peaceful Waters to assist in providing parenting co-ordination services to discuss any issues or topics either of them deem necessary – they will meet with her for four one-hour sessions once every three months until the year 2025;

[76] The parties have set up a storage container system at each home so that if there are items to be dropped off at either home, there is a safe and reliable option available to the parties. The containers are locked, and each has a key for access.

[77] Despite agreement that there is conflict between the parties, the Father blames the Mother and states that it is impossible to deal with her. He states that unless she gets her way, no resolution is possible, and that the orders he sought in his application were an attempt to minimize their conflict. I do not accept the Father’s position. There are numerous examples that make it clear to me that the Father creates conflict or at best does little to alleviate it when it occurs.

[78] These behaviours can be seen in the following:

1. He delayed in withdrawing his request to change the parenting schedule until February 2018 despite having met with Ms. Katchaluba in June 2017;

2. He did not follow the provisions in the Separation Agreement regarding mediation with Jamie Bennett. In a letter dated June 29, 2018, the Mother’s lawyer wrote “should the Applicant and Respondent deem it necessary they can engage the assistance of Annette Katchaluba at By Peaceful Waters. She has already acted in this matter and could be reengaged for this purpose.” It is my understanding that mediation did not occur because the Mother insisted that the Father abandon the court action to show that he was prepared to mediate in good faith;

3. His repeated blaming of the Mother and his refusal to accept responsibility for his share of the conflict;

4. The log which was created by him and Patti which was stated to note behavioural issues of the children, but which also makes many negative comments about the Mother;

5. His admission that he only offered to participate in mediation on the eve of trial of each of the trial sittings;

6. How he dealt with the issue of MD hockey for Evan – refusing the activity despite Evan’s s desire to participate. The Father cited costs and time as reasons for the refusal. On my direct questions, the Father admitted that the time was the same as the house league and select hockey which Evan was already participating in, and the additional cost was $700 more per year, of which he would be required to pay his proportionate share;

7. In the April 2019 report it states that “Evan stated that he never likes it when his parents fight or when they say negative things about the other parent. He indicated both parents will speak negatively but mostly his Father will say the negative things about his mother. Evan said that when he does not like how he behaves; his dad will blame his mom by saying “this is how their mom taught them to behave.” Evan said that although his dad may be mad at the kids, Evan does not think that the children’s behaviour is his mom’s fault.”

[79] The most concerning behaviour by the Father occurred in August 2019. The Father sent the Mother an email on August 30, 2019 at 8:07 p.m. as a result of a disclosure which he states one of the children made when with their paternal grandmother earlier that month, but which he did not believe was serious enough to tell the Mother at the time he found out.

[80] The email states the following:

Hello Andreea,

I am writing to you today to inform you of an issue that arose with Derrick while in our care. Derrick has communicated on occasion that he has low self esteem and puts himself down. Derrick recently had some suicidal ideations and said, “wish I was never born” and “I want to commit suicide”. I do not wish to provide you with more specific details, but thought I should let you know that this has happened recently. I am also asking that you don’t send me an email with further questions. Our communication is challenging to say the least, and I am not willing to engage in email or other conversations directly with you about this or any other matter at this time.

As you are aware, I am still seeking counselling for both boys and with this new information I truly hope you will be on board. Please confirm you will consent for the boys to be enrolled in ongoing personal counselling. This is an important need for the boys and the main reason we are still headed to trial.

I am also willing to attend parenting communication counselling with you through Annette Katchaluba should you wish to work on our communications.

Thanks,

Steve

[81] After receiving the email, the Mother was understandably concerned and attempted to reach the Father. She called three times and sent three emails, to which she did not receive a response. As a result, the Mother asked the police to do a wellness check to ensure Derrick’s safety.

[82] The Mother received a further email from the Father on August 31, 2019 at 11:53 a.m. as follows:

Hello Andreea,

Like I told you in my original email, I am not willing to discuss or communicate with you further regarding this due to our communication being challenging to say the least. You had the police show up at my house last night, they have indicated to you that the boys are ok and safe. I would be happy to meet with you and Annette to discuss this situation and others with you but I will not subject myself or the boys with the animosity that there is between the two of us. Please refrain from further communication like I requested in my original email to you.

I suggest we enroll the boys in counseling for them to be able to talk about their feels? You and I are not qualified to deal with these sorts of things.

If you agree to meet with Annette and enrolling boys in counselling please let me know and I will book appointments on Tuesday?

Steve

[83] The Father’s lack of insight into how his behaviour escalated matters is frankly astounding. His admission at trial that he did not deal with matters appropriately was half-hearted at best. To send an email to a parent suggesting that their child is suicidal, and then to refuse to discuss the issue is a clear indication that the Father is unable to put the children’s interests ahead of his own.

[84] The Mother states that the conflict has escalated since she received the letter from the Father’s counsel in September 2015 and has also worsened due to the father’s relentless pursuit of court orders. She states that their conflict is exacerbated by the fact that what the Father wants changes constantly. She points out that the Father became increasingly difficult and demanding in his communications after she moved in with Matthew E.. Based on the evidence, there is merit to the Mother’s position.

[85] Yet, it is clear that the Mother also contributes to the conflict.

[86] The Mother did not assist in moving matters forward when her condition for participating in mediation was that Father “drop” the court case. Although, pursuant to the agreement, mediation was to be the parties first avenue, the agreement also states that if either party does not believe negotiation or mediation will be fruitful, he or she may proceed with a court action. The Mother’s rigidity in this regard is not in the children’s best interests.

[87] I do not grant the Father’s request for an order for counselling for a number of reasons, which include the following:

1. Ms. Katchaluba, who assessed the boys on two occasions, did not recommend counselling. In fact, she stated that any issues that the children may have are intrinsically tied to their parents’ conflict, and that a parenting coach would be a more effective route than counselling.

2. The children were assessed at Front Door, which is a centre for children with mental health issues, and they found that the children did not require counselling.

3. There is no compelling evidence that counselling would be beneficial for the children.

4. I was moved by the Mother’s testimony with respect to the reason she did not want counselling for the children. I agree with the Mother that these children should not be singled out. If the issues occurring in the Father’s home are concerning, then he should be considering the Mother’s proposal of June 2019; these children are compliant in the general sense and they will likely do what they are told. They though should not be made to feel that there is something wrong with them, when the clear issue is with the parents.

5. The parental conflict is the most significant issue. That has been clearly delineated by the professionals involved.

6. The Father lacks the capacity to understand that although he indicates he wants to get to the bottom of the boys’ behaviour, he is not dealing with his own behaviour.

7. This is not a case where the children do not get along with their parents. The children are happy. Both reports prepared by Ms. Katchaluba make it clear that they want to continue to share time with their parents.

8. On the evidence before the court, this is not a case of family dysfunction, but rather a case of high parental conflict.

9. There is little compelling evidence that counselling or therapy would be beneficial to the children. The boys excel in school and in sports, and they have been described as happy in both homes. This is not a situation where therapeutic intervention is required.

10. I am confident that should the Mother believe at any point that counselling would be appropriate for the children, she will reach out to the Father and they can arrange counselling, and to that end, By Peaceful Waters seems to be an appropriate solution.

[88] On the evidence, the issue with respect to the children is the pervasive parental conflict. It is the parents that need to behave better, and not the children who require counselling. It is clear that although they both love their children, they have been unable to put their differences aside to properly make joint decisions in the best interests of the children. The conflict has escalated to a point where it is so severe that had the issue been before me to decide, I would likely have given one parent sole decision- making authority.

[89] I see the parents’ agreement to engage with professionals on an on-going basis as a positive step. I truly hope that they will do better. I will not require the children to attend counselling when it is clearly the case that it is the parents who require the assistance.

Travel Language

[90] The Father did not seek this language in his application and the Mother does not consent. There was no evidence led that travel was an issue between the parties. The Father wants assurances that when a parent is travelling, the other parent will be consulted first as it would impact the other parent’s time with the children. The Mother does not recall a time when the parties did not discuss a trip before booking it. Although the Father cited the France trip that the children attended with their Mother as an example of a trip where his time would be impacted, he did not point to any issue that arose between the parties in respect of this trip. Notably, he took the children to PEI that same year. The Mother raised no issue. The Mother states that she has always consulted with Father before booking a trip. I decline to make this order as there was no evidence led that it is necessary.

Child Support Issues

(a) Separation Agreement

[91] The Separation Agreement provides that the parties are to amend child support payments each year. Child support payments in the Separation Agreement are set based on the prior year’s income.

[92] Child support payment amendments have been facilitated by the parties through the exchange of T4s in the years 2011 through to 2018.

[93] There has been no amendment to the payments commencing May 2019 as income for the Mother is disputed for 2018 onwards.

[94] In this case, the parties have asked for clarity and consistency to determine child support based on income for the previous year. Although this is a deviation from the usual approach of using actual income, as indicated in Richard v. Holmes, 2020 ONSC 6485, I am prepared to accede to that request in order to avoid further conflict or confusion between the parties.

(b) Parents’ Positions

[95] The Mother’s position is that her actual income for the years 2018 and 2019 should be used to set support for the years 2019 and 2020 respectively. She argues that the set-off based on actual income should determine the amount of child support payable.

[96] The Father seeks an order that “The Respondent, Andreea Muncan’s income for the purpose of paying support shall be either her annual total income, or where her total income is less than $67,000, she shall have an imputed income of $67,000. This income will be indexed.”

[97] The Father also seeks an order that child support will be based on s. 9 of the Child Support Guidelines, SOR/97-175 (the “Guidelines”) as follows:

a. Where the Applicant’s income is more than $20,000 of the Respondent’s income or imputed income of $67,000 and where the household income of the Applicant and his spouse, and the Respondent’s income (including the Respondent’s imputed or actual income, whichever is higher) of the Respondent and her partner/spouse household is within $60,000 of the Respondent’s income, section 9(a) and off-set child support shall apply with the Respondent’s actual or imputed income as per paragraph 6, and the parties will pay section 7 expenses in proportion to their incomes;

b. Where the Applicant’s income is either within $20,000 of the Respondent’s income or the Respondent’s household income (with the Respondent’s imputed income) is greater than $60,000 more than the Applicant’s household income, no monthly child support will be paid by one party to the other and the parties will equally pay section 7 in proportion to their incomes.

(c) Process

[98] At the end of August 2020, the Mother filed her agreement with the court and submitted an application to enforce the Separation Agreement to the Family Responsibility Office (“FRO”). The Mother sought to have a third party, namely FRO, resolve the child support issue to avoid conflict. She mistakenly believed that FRO could decide the child support issue.

[99] Given that the Mother has filed the Separation Agreement with the court, s. 35 of the Family Law Act, R.S.O. 1990, c. F.3. governs. Subsection 35(2) indicates that a provision for support or maintenance contained in a contract that is filed in this manner may be varied under s. 37. Section 37(2)(a) allows the court to discharge, vary or suspend a term of the order, prospectively or retroactively, and (c) allows the court to make any other order for support of a child that the court could make on an application under s. 33.

[100] In Francisco v. Francisco, 2017 ONCJ 323, 94 R.F.L. (7th) 474, the court indicated that the filing of an agreement is a formal notice to the other party that one intends to enforce and/or change the agreement. The date of filing has no other significance in the Act or the case law. Section 35 of the Act clearly refers to varying an agreement as if it were a court order and any person who is a party may file it. The court must find a material change in circumstances since the signing of the agreement, not since the date of filing. Therefore, the agreement is capable of being a court order as of the date of the signing of the agreement and not the date of filing. Filing simply moves the matter into a court process. The agreement is to be treated as a court order and therefore the court has the jurisdiction to change it.

[101] The Father’s position is that despite the fact that the Separation Agreement indicates that year after year the support is to be calculated on a set-off basis, the material change in circumstances with respect to the Mother’s income allows me to review the manner in which support is calculated in its entirety. He seeks to have the support based on the combination of factors set out in s. 9. It is his position that the Mother’s income has gone down so much that it would impact him in a negative way to apply the set-off.

[102] The parties agree that there has been a change in the conditions, means, needs or other circumstances of the parties, such that a material change in circumstance has been demonstrated.

(d) Employment and Income of the Parties

[103] Subject to s. 15(2) of the Guidelines, a spouse’s annual income is determined having regard to s. 16-20 of the Guidelines.

[104] The starting point for determining a spouse’s annual income is to use the sources of income set out under the heading “Total Income” in the T1 General form issued by the Canada Revenue Agency (“CRA”), and to adjust in accordance with Schedule III: see Guidelines, s. 16.

[105] Section 16 of the Guidelines does not require the court to use the previous year’s total income as reported by the party in the T1 General form as a basis for determining ongoing child support. Rather, the intention of s. 16 is to direct the court to ascertain the parents’ income based on the sources set out in the T1 form. By virtue of s. 2(3) of the Guidelines, the court is required to determine the issues relating to income based on the most current information available. This requires the court to ascertain, if possible, the parents’ estimated current annual income in the year the child support order is being made. One exception is where the parents’ current income situation is uncertain or speculative, in which case fairness to the payor may require the court to rely on historical income information: see Morrissey v. Morrissey, 2015 PECA 16, 371 Nfld. & P.E.I.R. 182.

[106] The Father argues that pursuant to ss. 19(a) and (f), income should be imputed to the Mother. These provisions read as follows:

(a) the spouse is intentionally under-employed, 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;

(f) the spouse has failed to provide income information when under a legal obligation to do so.

[107] The Father works at Grand River Foods Ltd.

[108] The Mother currently earns no income. The Mother was employed by TD Wealth as a Financial Planner until March 2020.

[109] The Father’s income has been as follows:

2014 $116,618.00

2015 (T4 income) $119,013.01

2016 $128,017.85

2017 $107,215.00

2018 $108,878.00

2019* $140,476.00

(*This includes a one-time RRSP withdrawal of $29,000 - line 101 income was $111,476.14)

[110] The Father’s current income, as set out in his paystub attached to his financial statement, is as follows:

(a) Base Pay - $108,920.76 (4,189.26 biweekly)

(b) Bonus - $6,862.00

(c) Payment in lieu of RRSP contribution – $4,000

Total: 119,782.76

Father also has taxable benefits, but these benefits were not quantified for the court.

[111] The Mother’s T4 income in the same years has been as follows:

2014 $45,766.90

2015 $54,436.44

2016 $54,623.25

2017 $64,398.23

2018 $44,723.64

2019 $ 5,396.84

[112] In addition, in 2019, the Mother received $14,654.53 in disability income, which was not taxable and is to be grossed up. The Mother’s income for 2019, without consideration of the issue of imputation, is therefore $22,882, namely $14,654.53 grossed up, plus $5,396.84.

[113] The Mother received $35,697.09 or 35 weeks in severance pay on or after March 31, 2020, the day she signed the severance Disbursement Letter of Direction. It is unclear what period the termination pay covers. As no evidence was led on this issue, the severance pay will be treated as income in the year it was received, namely 2020 income.

[114] The Mother has applied for Employment Insurance (“EI”) in 2020 and expects to receive $4,000 to $5,000 in 2020.

[115] Although the question was not asked, the Mother may have also received some employment income in 2020 as she was not terminated until March 2020.

[116] For the year 2020, it appears that the Mother’s income, without consideration of the issue of imputation, will exceed $40,000.

(e) Mother’s Disability

[117] As a result of the trial management conference in April 2019, the Father learned that the Mother had been on leave from work since some point in 2018, due to mental health reasons. The mother has never provided adequate disclosure about those issues or the extent to which they affect her ability to work.

[118] The Mother provided the following documents to the Father on January 14, 2020 and August 25, 2020:

1. Notes from her medical file for her medical appointments of February 28, 2018 and March 13, 2018 indicating that she had work related stress and court stressors. She was not coping well – by March 13, 2018 she was noted as “off work”.

2. A letter from Dr. Bordman dated April 1, 2018 which indicated, among other things, that he completed a form for Manulife on March 8, 2018 (this form was never produced by the Mother) that the Mother suffered from extreme personal life stress which made it impossible for her to return to work at the present time. The Mother had sleep problems which caused her to have difficulty concentrating during the day. Dr. Bordman advised her to try Melatonin prior to bedtime. The efficacy of this treatment was to be evaluated at her next appointment on April 10, 2018. The Mother was noted as continuing to attend counselling, going for daily walks and gradually easing back into her daily activities. There was no information provided with respect to the April 10, 2018 appointment.

3. Letter from Dr. Bordman dated March 13, 2019 (almost one year later) which indicated that the Mother was suffering from Major Depressive Disorder, Generalized Anxiety Disorder, Obsessive Compulsive Disorder and Social Phobia and that he first saw the Mother for these problems on February 28, 2018.

4. Short Term (“STD”) /Long Term Disability (“LTD”) Coverage options showing that the Mother opted for the “core plan” which provided 100% of benefits salary for the first six weeks, 75% of benefits salary for the next six weeks and 55% of benefits salary for the following 10 weeks. Disability was defined as “1-year own occupation”. The Mother’s benefits salary was noted as $58,448.10.

5. A letter from TD Bank Group dated September 16, 2019, setting out that her total STD Benefit earnings in 2018 were $6,501.34 + $5,044.14 + $19,358.26. Total: $30,903.74.

6. 2018 T4 showing income of $44,723.64, which includes STD payments.

7. Letter from Manulife dated January 7, 2020, indicating that the Mother did not receive any LTD benefits for 2018 and that the LTD benefits commenced March 1, 2019.

8 Letter from Manulife dated January 6, 2020, confirming that the Mother was approved for LTD from March 1, 2019 up to and including October 29, 2019, during which time she received $14,652.53 in LTD which was non-taxable. In addition, she earned $5,396.84 in income in 2019.

9. A timeline breakdown of her efforts of returning to work, including educational efforts to maintain her industry licensing.

[119] In addition, by way of a letter from the Mother’s lawyer to the Father’s lawyer on October 29, 2020, her counsel indicates the following:

(i) the Mother’s leave was explained in a letter of June 25, 2019; and

(ii) her T4 income was provided on or about June 25, 2019.

[120] No information on the Mother’s counselling, her plan to return to work or details regarding any medication was provided. The Father made a further request for this information through his lawyer on July 22, 2019.

[121] The Mother received over 320 emails from the Father or his lawyer in 2017. She was faced with never ending litigation. The Mother described the Father’s behaviour as borderline harassment.

[122] The Mother states that the Father made constant demands, such as his demands for counselling, but she was left to organize and coordinate these matters (By Peaceful Waters, Art Bauer, Front Door). She was so stressed she could not focus at work.

[123] It is clear from the limited medical disclosure provided that the litigation has caused the Mother extreme stress.

[124] The Mother went off work in March 2018. Her evidence is that for the first three months she was working with her therapist and doing what her therapist recommended, which included daily walks, journaling, meeting with the therapist every other week, and seeing her family physician every two to three weeks. She was doing what her doctor told her and was compliant with their recommendations.

[125] The Mother was required to check in with her disability carrier every month and provide updates as to how she was doing, and there would be communication between her disability provider, Manulife, and her doctor.

[126] In October 2019, the Mother communicated her wish to return to work. Her benefits with Manulife ceased at this time. She had to work with TD Canada Trust for 60 days to attempt to obtain a similar job with similar pay. By the end of the 60-day period, in or about December 2019, it was determined that TD Canada Trust did not have a job opportunity for her. Accordingly, she was given a severance package.

[127] On January 14, 2020, the Mother sent the Father an email setting out her Return-to-Work plans. She stated that she was hoping to be back to work full time within the next couple of months. However, the COVID-19 pandemic caused a shut down in mid-March 2020. The Mother states as a result she was unable to find work in her field. She confirms that as at the end of October 2019, her ability to work was no longer an issue, but that the issue became finding work.

(f) Imputation of Income

[128] The Father seeks that the Mother’s income be imputed at $67,000, which represents her last full year of income with TD, plus an additional amount the Father expects she would have earned given her “upward trajectory”. He asked that an adverse inference be drawn because of a lack of information provided. The Father vehemently disputes that the Mother’s income should be as set out in her tax return. He takes the position that the Mother was not disabled and should or could have been working during the period of time she was in receipt of disability benefits, and certainly thereafter.

[129] The Father states that the Mother did not provide the appropriate information to establish that she was unable to work. The Father is unable to determine whether the Mother was following treatment recommendations as she did not provide her medical records.

[130] The Father asks the court to consider the Mother’s pre-disability position and what she did to mitigate her disability. He submits that she should have told the Father that she was stressed. He questions what she could have done to mitigate the issues that led to her disability. He indicates that she was part of the conflict, but that she takes no responsibility for it. The medical information is scant and there may have been lost job opportunities.

[131] Although the Father agrees that mental health is a serious issue, he does not know the extent of the Mother’s mental health issues.

[132] With respect to post-disability (after October 2019) the Father questions whether the Mother mitigated her losses or maximized them. The Father states that the Mother did not appropriately mitigate because she was not willing to commute for work.

[133] The Mother asked this court to use her actual income for the years 2018 and 2019. She agrees to an imputation of income for 2020.

[134] Imputation of income provides a means by which the courts can ensure that parents meet their joint and ongoing obligation to support their children: see Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.).

[135] More recently, the Ontario Court of Appeal in Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, at para. 51, stated the following:

The courts retain discretion to impute income to a payor spouse in excess of that spouse’s presumptive income where the imputed income is supported by the evidence and is consistent with the objective of establishing “fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution” (citations omitted).

[136] The imputation of income to a party is a fact specific exercise that turns on the circumstances of the case before the court. Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion. However, there must be some basis in the evidence for the amount that the court has chosen to impute: see Korman.

[137] The onus is on the party requesting the court to impute income to establish the grounds for this request. To meet this onus, the party must establish an evidentiary basis upon which this finding can be made: see Drygala v. Pauli; Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17. However, this does not detract from the obligation of every party in a child support case to make full and frank financial disclosure of all matters that may be relevant to a proper determination of other income for support purposes. This includes disclosure of all information required to properly assess the party’s actual earnings, their income earning potential, efforts which they have made to maximize their earnings and the appropriateness of any claimed deductions from their income: see Roloson v. Clyde, 2017 ONSC 3642.

[138] The Mother states that she did not want to give her medical files to the Father to be “aired and for all to see”. She states that she did not provide her counselling notes and medical file to the Father as she was concerned that he would “nit pick” at everything and call her parenting into question. It seems that the Mother’s concerns are warranted to some extent. The Father’s lawyer in a letter dated June 25, 2019 indicated that “Andreea’s behaviour has become unpredictable and concerning … Andreea’s recent mental health struggles seem to be spilling over to the ongoing custody/access issues and the children are suffering”. The Father, at the very beginning of his evidence, indicated that part of the reason her medical information was necessary was so that he could determine whether she is “able to care for the children properly.” Following this comment, he bizarrely questioned how she could afford to parent given her income.

[139] The Mother suggests that if she had cancer, no one would be this intrusive – she is concerned that mental health is being treated differently. I do not agree. If someone had cancer the court would still want information as to that person’s prognosis, treatment plan, follow through and ability to work, if not full time then part time. This information was not provided to the Father or to the court. Accordingly, I am drawing an adverse inference against the Mother for her failure to provide appropriate disclosure. As the Mother led no evidence of the impact any income might have on her STD or LTD, I am unable to consider said impact.

[140] I have been provided with no medical information as to whether the Mother could work at any job. Clearly, given her receipt of STD and LTD, she was, at least from the perspective of the insurer, unable to work at her job at TD from March 2018 to October 2019. However, this does not mean that she could not undertake some other kind of work. The Father did not question the Mother under oath prior to trial, nor did he bring a motion for this disclosure. His counsel cited costs as the reason for not doing so: one would think a five-day trial is more costly.

[141] Based on her resume filed as an Exhibit in these proceedings, the Mother’s experience lies in banking. From January 2019 to October 7, 2019, the Mother took four educational improvement courses. She was asked very little about these courses. It is unclear to me how much time and energy was required of her to complete the courses during the time she was on disability and how, if at all, this affects whether income should be imputed to her.

[142] The Mother has applied for 32 jobs between January 8, 2020 and October 6, 2020. I find that the Mother is diligently looking for work only in her field. The Mother indicates that she did not apply for minimum wage jobs given her concern that the Father would take the position that she was underemployed. Furthermore, the Mother did not apply for jobs outside of Kitchener-Waterloo unless she could work from home. Her evidence was that she was not even prepared to travel to Guelph.

[143] In cross-examination, the Father’s counsel put to the Mother, Indeed Job information obtained on November 16, 2020.

[144] Two things became clear from this cross-examination:

1. The Mother was not prepared to search for employment outside the Kitchener-Waterloo area; and

2. Her job search was limited to jobs in her expertise. She did not apply for other types of work.

[145] No evidence was put before the court as to the income that the Mother could have earned had she applied to any of the jobs in the Indeed job search.

[146] The Father took the incorrect position that the Mother should know what kind of income she should earn from employment.

[147] Not having been provided with sufficient information as to what the Mother could earn given her skills in the current job market, I am left with imputing minimum wage income to Mother.

[148] I infer from the fact that the Mother qualified for STD benefits and then LTD benefits, that her absence from her employment was due to bona fide health issues that impeded her ability to perform the duties of her employment as a Financial Planner with TD Wealth: see Adorno v. Adorno, 2019 ONSC 5517.

[149] Based on the foregoing considerations, I determine it appropriate to impute income to the Mother in 2018 and 2019 for her failure to disclose, but not for her intentional underemployment: see Neves v. Pinto, 2020 ONSC 3098.

[150] I accept that the Mother was disabled effective March 2018. I accept the Mother’s evidence that she was compliant with her doctor’s recommendations. However, what is not clear to me is whether she could have worked part time to earn some income following her disability. Moreover, it is not clear to me, nor was any evidence led to this effect, as to how working part time would impact her disability payments. Although I sympathize with the Mother’s position that she did not wish to provide her counselling notes and medical records to the Father as he would “pick at them to try to show she is an unfit parent”, this does not assist the court. It is trite to say that disclosure is required.

[151] The Mother is organized, presents well, and appears capable. She is not willing to travel to Cambridge or Guelph for work. She was ready to go back to work in October 2019.

[152] The Mother states that she is desperate to find work and I believe her. Her partner, Matthew E., verified how hardworking she is and how ashamed she is not to be working. Despite this, she should have produced sufficient disclosure.

[153] For the year 2018, the Mother was working or receiving STD. She earned $44,723.64. As she was receiving her full salary until, by my estimate, the end of April 2018, there will be no additional income imputed to her over that time. For the time period of May 2018 - December 2018 (seven months) , although the Mother could not continue to work her own occupation, there is no evidence as to whether she could work any occupation and how earning an income would affect her STD. Thus, I impute part-time minimum wage income to her for those seven months, namely $14.00 per hour x 20 hours x 7 months = $8,486.80. Accordingly, her income for 2018 for child support purposes is $53,210.44.

[154] In 2019, the Mother admits that by the end of October she was ready to return to work full time. It is also indicated that she did not receive benefits for November and December and that her LTD did not actually start until March 2019. For that year I am adding part- time minimum wage income to her for the entire year or $14,560.00. Accordingly, her income for child support purposes in 2019 is $22,882 plus $14,560. for a total of $37,442.

[155] For the year 2020 the Mother was able to work full time. Accordingly, I impute minimum wage income to her for 39 weeks she was not receiving any other form of income. Minimum wage increased in October 2020 to 14.25 per hour. Therefore for 26 weeks her income will be imputed as 14,560 and for 13 weeks her income will be imputed as $7,410.00 for a total of $21,970.

[156] Accordingly, I make the following findings:

1. On consent, the Father’s income for 2019 will not include his RRSP income.

2. The Mother will have part-time minimum wage income imputed to her for seven months of 2018. In addition to her actual income, this means that her total income in 2018 for child support purposes is $53,210.44.

3. As of March 2019, it is clear that the Mother was suffering from a number of disorders. It is clear she could not work in her demanding job. As such, I impute income of 14,560 which is a part-time minimum wage income. The Mother’s income in 2019 is $37,442.

4. For the year 2020, the Mother shall have the following income attributed to her:

(a) her severance pay of $35,697.09 (there is no indication that there will be a claw back of this income if the Mother obtained employment);

(b) an additional $21,970 which represents full time minimum wage income, for 39 weeks of the year; and

(c) EI income of $4,000.

Total 2020 income is $61,667.09

Note: If the Mother’s actual income in 2020 is different than set out in this paragraph, her actual income + $21,970 shall be used as her income to calculate support in May 2021.

Shared Custody and Section 9 of the Child Support Guidelines

[157] Shared custody situations are governed by s. 9 of the Guidelines. The parties do not dispute that this is a shared custody situation. Accordingly, I must proceed under s. 9 in calculating child support.

[158] The Father stated that if the Mother’s income was imputed to be $60,000, then the Father would accept paying set-off child support. As I have not imputed that level of income to the Mother in the years 2018 and 2019, a s. 9 analysis must be undertaken.

[159] Both parties agree that there has been a material change in circumstances.

[160] It should be noted that I cautioned counsel from the first day of the trial that proper evidence was required to be led in order for me to properly consider the factors set out in s. 9 of the Guidelines. I advised counsel to refer to the Supreme Court of Canada decision in Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217.

[161] In that decision, the court made the following significant comments regarding the interpretation of s. 9 and the manner in which child support calculations should be approached in shared parenting scenarios.

1. In shared parenting arrangements there is no presumption in favour of the parent who has less time with the child paying the table amount of child support, rather the court must determine the quantum of child support in accordance with the three factors listed in s. 9.

2. A finding that shared parenting exists does not automatically dictate a deviation from the table amount of child support. In some cases, a careful review of all of the factors set out in s. 9 may lead the court to conclude that the table amount remains the appropriate figure.

3. In determining the appropriate quantum of support, none of the three factors listed in s. 9 prevail over the others. The court must consider the overall situation of shared custody, the cost to each parent of the arrangement and the overall needs, resources and situation of each parent. The weight to be afforded to each of the three factors will vary according to the particular facts of each case.

4. The purpose of s. 9 is to ensure a fair and reasonable amount of child support.

5. In adopting s. 9 of the Guidelines, the legislature has made a clear choice to emphasize the need for fairness, flexibility and the actual conditions, means, needs and circumstances of each parent and the child, even if this meant sacrificing to some degree the values of predictability, consistency and efficiency.

6. The simple set-off approach may be a useful starting point (s. 9(a)). This is particularly so in cases where parties have provided limited information and the incomes of the parties are not widely divergent. However, the court emphasizes that the simple set-off approach has no presumptive value in carrying out the support calculation. It cautioned against a rigid application of the set-off approach noting that that may not be appropriate when a careful examination of the respective financial situations of the parties and their household standards of living raise concerns about fairness of a drastic reduction in child support to the recipient.

7. The court held that the judge has discretion to modify the simple set-off where “considering the financial realities of the parents, it would lead to a significant variation in the standard of living experienced by the children as they move from one household to another, something which Parliament did not intend.” The court should strive for a result that avoids the child experiencing a noticeable decline in their standard of living as they move between households.

8. One of the considerations in carrying out the s. 9 analysis is whether one parent is actually incurring a higher standard of the child’s costs than the other, such as costs relating to clothing and activities.

9. Subsection 9(b) recognizes that the total global cost of raising the child in a shared custody arrangement may be higher than a primary residence arrangement. It requires the court to consider the total additional costs attributable to the situation of shared custody. In carrying out this analysis, evidence of necessary duplication of fixed costs arising due to shared parenting may be important.

10. Not every dollar spent by a parent who has the child more than 40% of the time is a dollar saved by the recipient parent. In absence of evidence to the contrary, it is possible to presume that the recipient parent’s fixed costs have remained the same and that their variable costs have only marginally decreased by the other parent’s increase in time with the child.

11. Financial statements and/or child expense budgets are necessary in order for the court to properly carry out the child support analysis pursuant to s. 9(b). The judge should not make assumptions regarding additional costs attributable to shared parenting in the absence of any evidence relating to the issue.

12. The court’s discretion under s. 9 is sufficiently broad to bring a parent’s claim for s. 7 expenses into the analysis under that section, taking into consideration all of the factors outlined in s. 9.

Analysis

[162] On the first factor under s. 9 of the Guidelines, based on the Father’s income and the Mother’s imputed income:

2018 - If the simple set-off were used as contemplated in both the Separation Agreement and the Application, then commencing May 2019, based on Father’s s 2018 income of $108,878.00 and Mother’s imputed income of $53,210.44, the Father owes the Mother $1,579.00 in child support, and the Mother owes the Father $810.00 in child support. To simplify things, the Father would pay the Mother $769.00 per month in child support. The sharing of s. 7 expenses would be Father 67.2% and Mother 32.8%.

2019 - If the simple set off were used as contemplated in both the Separation Agreement and the Application, then commencing May 2020 based Father’s 2019 income (without RRSP withdrawal) of $111,476.14 and Mother’s 2019 imputed income of $37,442.00, the Father owes to the Mother $1,612.00 in child support and the Mother owes to the Father $564.00 in child support. To simply things, the Father would pay to the Mother $1,048.00 per month in child support. The sharing of section 7 expenses would be Father 74.9 % and Mother 25.1 %.

[163] No evidence was led on the second factor in s. 9, namely the increased costs of shared custody. As the parties have enjoyed equal parenting since at least 2011, and the children have been set up in each parent’s respective home for some time, it is difficult to understand what the increased costs could be.

[164] The third factor to consider encompasses the conditions, needs, means and other circumstances of each spouse and of any child for whom support is sought. The following evidence was adduced:

(a) The Father lives in an 1,800-1,900 square foot home. There are four bedrooms on the upper level and one in the basement. The children each have their own bedroom. The lot is 150 feet deep.

(b) The Mother lives in a 2,300 square foot bungalow which is 60 years old. There are four bedrooms on the main level and two bedrooms downstairs. The children each have their own bedroom.

(c) Arial photos of each house provided by the Father do not show any marked difference in the parties’ homes.

(d) The Father has four people in his household full time and the children 50% of the time.

(e) The Mother has two people in her household full time and the children and three other children 50% of the time, for a total of two people in the house full time and five people in the house 50% of the time.

(f) The Father has three income earners in his house; the Mother has two despite the fact that she is currently unemployed.

(g) The Father’s stepson, who is 20 years of age, earns approximately $500 after tax per week, and contributes $200 per month towards the household expenses. Both the Father and Patti provide evidence that they are actually saving the $200 per month to give back to him. This child has disabilities which include Asperger’s and compulsive behaviours.

(h) The parties share equally the contributions into RESPs for the children despite the differences in their income.

(i) Section 7 expenses for the children are minimal.

(j) The Father’s anticipated gross income in 2020 is $120,000.00, and Patti is anticipated to earn $45,000.00. In 2019, Patti earned $26,030.23. Patti’s income going forward is $52,500.00.

(k) Patti receives child support for her daughter in the sum of $651.00 per month or $8,320.00 per annum in child support. She does not pay tax on the child support.

(l) The Mother currently earns no income. Her partner, Matthew E., earned $183,308.00 in 2019.

(m) Matthew E. pays $1,500.00 a month or $18,000.00 per annum in child support, after tax.

(n) The Father’s net worth is $549,500.00. The Mother’s net worth is $316,596.97. The Father states that his net worth almost doubled given the increase in the value of the home.

(o) The Father’s yearly expenses total $145,293.22. The Mother’s yearly expenses total $117,084.00. In her yearly expenses, the Mother has only accounted for 50% of the mortgage. The Father, on the other hand, has accounted for 100% of the mortgage. If the entire mortgage was attributed to the Mother, her yearly expenses would increase to $137,736.00.

(p) The Father is claiming $19,200.00 per annum in grocery expenses and the Mother is claiming $7,200.00 per annum.

(q) The Mother and her husband and family are members of the Westmount Golf Course, which resulted in her $8,400.00 entertainment/recreation expense versus Father’s $3,000.00 per annum in entertainment/recreation expense. Although the Westmount Gold Course is enjoyed by all of the Mother’s family, Matthew E. advised it is also a means to obtain or retain clients. He notes his pay is 100% commission.

(r) The Father made significant submissions about the parties’ respective standards of living and focused on vacation. On his financial statement, his vacation expenses are $3,600.00, and the Mother’s are $6,000.00. He points to the fact that he takes the children camping, whereas the Mother takes the children to Europe. However, to clarify, the Europe trip was a one-time trip for the Mother’s family. Her partner gave evidence as to the importance of the trip. The Father, in his application, although not in evidence, indicates that he took the children on a cruise, and in the same year the Mother took the children to France, Father took the children to PEI.

[165] The Father states there is a significant difference in the standards of living in each household and he points to vacations and the Westmount Golf Membership. I do not agree.

[166] Both parties live in similar homes. The children have their own bedroom in each home. There is nothing extravagant or glamorous about either parties’ lifestyle. I decline to find that the household standards of living are different.

[167] I have concluded that the set off amount is fair in the circumstances and does not result in a significant deviation of the standards of living of the children as they move from one household to the other and meets the objectives of the Guidelines. This amount is reviewable each year as set out in the Separation Agreement based on the set-off amount.

Orders

[168] Accordingly, and on consent, I make the following orders:

1. The parties shall participate in the email monitoring and parenting coaching service offered By Peaceful Waters for a minimum of two years (unless otherwise agreed upon in writing between the parties), with the costs to be shared proportionally between the parties. This will be the only method of communication except in the case of an emergency, where text messaging or a call is permitted (i.e. the children are in hospital or have a medical need). The children forgetting items at one parent’s home is not an emergency.

2. The parties shall retain Annette Katchaluba of By Peaceful Waters to assist the parties in providing parenting co-ordination services to discuss any issues or topics either party deems necessary. The parties will meet with Annette Katchaluba for four (4) one-hour sessions per year, once every three (3) months, until the end of the year 2025. The cost of the sessions will be shared proportionally between the parties. On consent in writing the parties may alter this timeline. Both must agree.

3. The parties will exchange the children at school. Where the children are not in school, the parties will exchange the children by dropping them off at the other’s residence at the commencement of their parenting time. The parent doing the drop off will park their vehicle on the road in front of the other’s residence.

4. Commencing May 15, 2021 and every May 15 thereafter, the parties shall exchange their T4’s, and as soon as they are available, exchange their Income Tax Returns and Notices of Assessment and/or Reassessment for the purpose of determining their respective child support obligations and proportional share of the children’s section 7 special and/or extraordinary expenses set out below. The parties shall adjust the child support to be paid using the Child Support Guidelines with the change to be effective commencing June 1 of each year, for the following twelve (12) months with payments to be made bi-weekly.

5. The parties shall cooperate to equally share the dependant tax credits as permitted by the Canada Revenue Agency, as well as equally share the Canada Child Benefits, and any other government benefits.

6. The parties shall conduct themselves in the following manner related to the children’s extracurricular activities and costs:

(a) The children are entitled to participate in house league hockey and the select teams, house league baseball, and/or house league basketball without further consent required. This is not an exhaustive list;

(b) Neither parent shall discuss with either child, or within their ear shot, the financial issues between them. They will not ask the children to ask the other parent to pay for anything or to have access to funds from the other household including for cellphones, sports, or activities;

(c) Neither parent is permitted to instruct or request that third party professionals such as doctors, dentists, or other service providers not communicate with the other in anyway. Both parents are entitled to full open communication and to be copied on emails or text messages related to the children’s appointments and the results from those appointments. Either parent may communicate directly with third parties to receive this information.

7. The parties shall share all section 7 expenses pro-rata based on the Child Support Guidelines income. There will be a budget for sports and extracurricular activities (i.e. registration and rep fees) up to $3,500.00 per year. The budget will be used towards the children’s sports and extracurricular activities in that year, based on the children’s preferences. The parties will communicate activity, cost and timeline to each other prior to enrollment for confirmation of consent.

[169] Not on consent, I make the following order:

1. Father’s request that the children attend counselling is dismissed.

2. Father’s request for an order with respect to travel is dismissed.

3. An income is imputed to Mother as follows:

2018 - $54,056.97

2019 - $37,442.00

2020 - $61,667.07 *

*Note: If the Mother’s actual income in 2020 is different than set out herein, her actual income + her imputed income of $21,970 shall be used to recalculate support in May 2021. Retroactive and on-going child support shall be calculated based on the set-off approach. On a go forward basis, should Mother not obtain employment earning at least $30,000 per annum, that employment income shall be imputed to her.

[170] If the parties are unable to resolve costs, Mother may file written submissions on costs within 21 days. Father may file responding written submissions within 14 days thereafter. Mother may provide brief reply 7 days thereafter. Submissions are not to exceed four pages, plus a detailed bill of costs and copies of any offers to settle. There shall be no extension of these timelines. If a party does not submit submissions respecting costs in accordance with these deadlines, there shall be no costs payable to that party, although costs may still be awarded against that party.

D. Piccoli J.

Released: January 4, 2021

COURT FILE NO.: FC-16-FS000365-0000

DATE: 2020-12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

STEVE VASA MUNCAN JR.

Applicant

– and –

ANDREEA ELENA MUNCAN

endantsDerfendants

Defendnaondents

REASONS FOR DECISION

D. Piccoli J.

Released: January 4, 2021