SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 08-382

DATE: 2022/01/12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Lisa Saroli

Applicant

– and –

Dean Jason Grette

Respondent

Alison Southern, counsel for the Applicant

Rodney Cross, counsel for the Respondent

HEARD: October 12-14, 2021

reasons for judgment

Justice H. Desormeau

[1] Eleven years after the parties agreed to a Final Order, the Court heard a focused trial on a Motion to Change regarding the issues of parenting time and child support.

Background facts

[2] Most of the following backgrounds facts are from the parties’ agreed statement of fact (“ASF”).

[3] The parties were never married but were in a common law relationship for about one year in 2006.

[4] They purchased a property together in 2005. On July 21, 2006 the Father was in a motor vehicle accident (“MVA”) that left him permanently disabled and with significant brain damage. The Father was in a coma following the accident until September 2006. He began speaking again on October 2, 2006.

[5] Shortly after the MVA the Mother learned she was pregnant with their son, L, born in 2007.

[6] The parties separated in October 2007. The Father moved to Montreal in 2008.

[7] The Mother alleged the Father’s personality changed completely because of the MVA.

[8] In 2006, the Father was declared incompetent to manage property as a result of his injuries, necessitating the involvement of the Office of the Public Guardian and Trustee (“OPGT”). It was not until May 16, 2016 that the Father was declared competent by the OPGT to manage his property. He was however never declared incompetent to manage his personal care.

[9] The parties separated in 2007, and the Mother brought a family Court application in 2008.

[10] From 2007 to 2010, the Father has visits with the child. In September 2010, it was agreed through counsel that the Centre York Centre (“CYC”) would be the designated place for all future visits between L and the Father. These visits were discontinued by the CYC on November 24, 2010, as they were allegedly harmful to L.

[11] From 2010 to 2019, L had no contact with his Father.

[12] Prior to the MVA, the Father owned a business which was registered in Quebec.

[13] On the Father’s behalf, the OPGT entered into a settlement agreement regarding the tort claim for the MVA, for $4,025,000.00. The Father was found to be contributorily negligent regarding his injuries sustained by the MVA for not wearing a seatbelt. This reduced the damages by 25%.

[14] Of the $4,025,000.00 settlement, $3,000,000.00 was invested into a structured settlement. This amount was divided into two (2) parts. The income from the structured settlement is non-taxable.

[15] In September 2011, the parties, with the Father being represented by the OPGT, consented to a final Order, hereinafter referred to as the Parfett Order, the terms of which are set out in greater detail below. That Order provided that the Mother would have sole custody of L, with supervised access to the Father at the CYC. It provided a mechanism to review the access if it was not occurring, as well as a mechanism to review the Father’s income.

[16] Throughout the initial family law proceedings which resulted in the 2011 Parfett Order, the Father was represented through the OPGT by Elaine Rufiange. The Mother was represented by counsel throughout the proceedings, and at the time of the Final Order she was represented Sarah Coristine.

[17] It was agreed that the Father paid child support of $4,032.00 in 2012; $4,584.00 in 2013; and $4,584.00 in 2014.

[18] It was established at trial that the Father’s medical and rehabilitation needs were higher in 2011 than at the time of trial.

[19] It appeared uncontested, and was set out in ASF, that in 2016, the Father transferred approximately $10,000.00 to Rachel P. In 2016 he transferred approximately $75,000.00 to “Meghan”, and in 2018 transferred another $70,000.00 to “Meghan”.

[20] In 2019, the Father brought a Motion to Change seeking parenting time with L. Specifically, he requested to re-establish contact with L and was open to any form of contact as deemed appropriate by the Court, including supervised access, Skype, facetime, etc. He confirmed that there had been no contact since approximately 2011 [the Court notes that the ASF indicated 2010].

[21] The Mother opposed the relief sought by the Father. In her Response to Motion to Change, the Mother brought claims of her own to change child support. Specifically, she sought an Order that the Father pay child support of “$600.00 or more” per month for L, with payments to commence immediately, as well as payments for L’s therapeutic s.7 expenses. She requested the child support be adjusted to reflect the Father’s true income, after full financial disclosure was made, and tax consequences of the structured settlement be taken into account. She also sought payment toward the arrears of child support.

The Parfett Order

[22] The salient terms of the final Order of Parfett J. dated September 30, 2011 set out the following (paraphrased to reference the Mother and the Father as opposed to Applicant and Respondent where I felt it would provide clarity):

1. The Mother shall have sole custody of the child from the relationship, L [dob omitted].

2. The Father shall have supervised access to L on a schedule to be agreed upon between the Mother and the Father through his counsel. The access shall take place at the York Supervised Access Centre in Cornwall, Ontario.

3. The Mother agrees that the matter of access be returned to Court in January 2012 in the event that access has not yet been able to resume at the supervised access centre.

4. The Father shall pay child support in the amount of $336.00 per month commencing October 1, 2011 based on his anticipated annual income of $36,379.00 (of which his income replacement benefits have been grossed up as it is non-taxable income) and in accordance with the Federal Child Support Guidelines.

5. Within 15 days of the Court approval of the within settlement, the Father shall make a retroactive payment of child support in the amount of $1,458.00 which represents the difference between the current child support being paid of $174.00/month and $336.00/month for the period of January 2011 to and including September 2011.

6. The Mother shall have the opportunity to have the Father’s income calculation for child support confirmed by her own expert. In the event the Mother’s expert finds that the Father’s annual income from all sources is greater than $36,379.00, the Mother shall be free to return the issue of income calculation to Court for the Court’s determination in the event the parties cannot agree on any change in the Father’s income calculation for child support purposes.

7. The Father shall provide all disclosure requested by the Mother’s expert, as required for his income determination.

8. Financial disclosure would be exchanged by the parties by July of each year and child support would be readjusted by August of each year, retroactive for the prior year and ongoing.

9. Within 15 days of the Court approval of the within settlement, the Father shall pay to the Mother his proportionate share of the Section 7 expenses in the amount of $2,224.03.

10. The Mother shall not be required to seek the Father’s guardian’s consent [as at that time he was represented by the OPGT] for the following section 7 expenses: medication or dental expenses for L that do not exceed $500.00 per treatment, child care expenses and the cost of L’s first post-secondary diploma or degree, subject to L’s obligation, depending on L’s circumstances at the time, to contribute to the cost of his own education.

11. The Mother shall notify the Father’s guardian and seek their consent for any future section 7 expenses, beyond those specified for which consent is not required. Consent to the expense from the Father’s guardian shall not be arbitrarily or unreasonably withheld. In the event that a response to a section 7 expense request is not provided within 45 days, consent shall be deemed to be granted.

12. The Father through his guardian will pay his proportionate share of the Section 7 expenses within 45 days of being provided a receipt marked paid of an invoice, in which case, payment will be made payable to the service provider in question.

13. In the event of a material change in circumstances, only the child support and life insurance provisions of the within offer to settle may be varied. If such a change occurs, the person seeking the variation shall give the other written notice of the variation he or she is seeking.

Credibility

[23] Only three witnesses were presented at the focused hearing: the Mother, the Father, and the Father’s assistant, Genevieve Berthiaume.

[24] As in all cases, the credibility and reliability of witnesses are important considerations, particularly where there are different versions of events advanced by the parties.

[25] In assessing credibility, the Court is concerned with the witnesses’ truthfulness: R. v. C.(H.), 2009 ONCA 56 at para. 41. Reliability involves consideration of the accuracy of the witnesses’ testimony, considering their ability to accurately observe, recall and recount events in issue: R. v. C.(H.), ibid. A credible witness may provide unreliable evidence, as it is possible that the witness has misperceived events, has a poor memory or could simply be wrong. Ultimately, the Court must assess not merely the witnesses’ truthfulness, but also the accuracy of their evidence.

[26] As stated by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51 at para. 49: “assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.”

[27] Justice Nicholson, in Christakos v. De Caires,2016 ONSC 702, citing with approval Novak Estate, Re, referenced the following:

In assessing credibility in the face of conflicting evidence, MacDonald, J. adopted the outline set out in Novak Estate, Re, 2008 NSSC 283, 269 N.S.R. (2d) 84 (N.S. S.C.), at paras. 36-37:

There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness's evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny 1951 252 (BC CA), it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, 2002 NSCA 99 (N.S. C.A.) [at paras.] 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. (R. v. Howe, 2005 253 (ON CA), [at paras.] 51-56).

There is no principle of law that requires a trier of fact to believe or disbelieve a witness’s testimony in its entirety. On the contrary, a trier may believe none, part, or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence. (See R. v. R. (D.), 1996 207 (SCC) at [para.] 93 and R. v. Howe supra). [Emphasis in original.]: Christakos v. De Caires, 2016 ONSC 702 at para. 10.

[28] The Ontario Court of Appeal in R. v. Wills stated the following about inconsistencies:

… [O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) 1994 8733 (ON CA), at p. 354, leave to appeal to S.C.C. refused. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

… A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24, at para. 31: R. v. Wills, 2018 ONCA 138, at para. 33, citing with approval R. v. M.(A.), 2014 ONCA 769, at paras. 12 to 14.

Witnesses

[29] As noted in the background facts, the Father suffered a motor vehicle accident leaving him with significant disabilities. The Father’s viva voce evidence was somewhat inconsistent. It is unclear how much was due to his disabilities as opposed to evasiveness of answers. The Father appeared sincere in his viva voce evidence. However, as noted in his capacity assessment, he seemed to be easily influenced by the questions put to him. Overall, I nevertheless found the Father credible, particularly as the crux of his evidence was contained in his affidavits, and the inconsistencies were primarily on minor points.

[30] Genevieve Berthiaume’s evidence was straightforward, logical, and clear. She spoke of how she came to be the Father’s assistant, her duties and obligations in being his assistant, and her remuneration. She was very much involved in assisting the Father provide financial disclosure, providing a go-between the Father and his counsel. I found Ms. Berthiaume to be a credible witness.

[31] The Mother’s evidence was also straightforward and consistent. She gave thoughtful answers. Occasionally, when speaking about the Parfett Order however I found her to be less forthcoming. In fairness, this could be based on the events occurring over ten years ago. By and large, I found Mother to be a credible witness.

Variation of Parenting Time between the Father and L

The Law

[32] The parties were never married; therefore, the salient provisions are found in the Children’s Law Reform Act (“CLRA”).

[33] Section 29 indicates that a Court shall not make an Order that varies a parenting Order unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child who is the subject of the Order.

[34] Section 24 CLRA sets out the best interest provisions which the Court must consider when making a parenting Order. It directs the Court when determining what is in the child’s best interest to consider all the factors related to the circumstances of the child, and in doing so, obliges the Court to give primary consideration to the child’s physical, emotional and psychological safety, security and well-being: S. 24(1) and 24(2) CLRA. At s. 24(3), a number of factors are established for the Court’s consideration, at s. 24(4) the Court must consider factors relating to family violence, and s. 24(5) past conduct. S. 24(7) clarifies that section 24 applies equally to variation applications.

[35] The list of best interests considerations in CLRA is not exhaustive: See 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the Court to take a holistic look at the child, his or her needs and the persons around the child. See: 2021 ONSC 2480, and L.S. v M.A.F., 2021 ONCJ 554, at para 35.

[36] As set out in Gordon v Goertz, 1996 191 (SCC), in determining a request to change a decision-making responsibility or parenting time Order, the Court must first embark on a two-stage inquiry. Pazaratz J. set out the two-step test in very helpful terms in F.K. v. A.K., 2020 ONSC 3726:

49 The first step: There must be a material change in circumstances since the last Order was made.

a. There must be a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs.

b. The change must materially affect the child.

c. It must be a change which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial Order. The change must be substantial, continuing and "if known at the time, would likely have resulted in a different Order." Droit de la famille - 091889, 2011 SCC 64 (S.C.C.).

d. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access Order.

e. If there is no material change in circumstances, the inquiry ends. The Court would be without jurisdiction to vary the Order. Litman v. Sherman, 2008 ONCA 485 (Ont. C.A.).

f. If there is a material change, the Court must move to the second stage and consider the best interests of the child and whether to vary the original Order.

50 The second step:

a. If a material change in circumstances has been established the Court then embarks on a fresh inquiry into the best interests of the child.

b. In this fresh inquiry, both parties bear the evidentiary burden of demonstrating where the best interests of the child lie. There is no legal presumption in favour of the custodial parent, or in favour of maintaining the existing timesharing arrangements. Bubis v. Jones 2000 22571 (ON SC), Persaud v. Garcia-Persaud, 2009 ONCA 782 (Ont. C.A.); Deslauriers v. Russell, 2016 ONSC 5285 (Ont. S.C.J.); Roloson v. Clyde, 2017 ONSC 3642 (Ont. S.C.J.).

c. The Court must ascertain the child's best interests from the perspective of the child rather than that of the parents. Parental preferences and rights do not play a role in the analysis, except to the extent that they are necessary to ensure the best interests of the child. Gordon v. Goertz; Young v. Young 2003 3320 (ON CA).

d. The child should have maximum contact with both parents if it is consistent with the child's best interests. Gordon v. Goertz; Rigillo v. Rigillo, 2019 ONCA 548 (Ont. C.A.).

e. Any assessment of the best interests of a child must take into account all of the relevant circumstances pertaining to the child's needs and the ability of each parent to meet those needs. Gordon v. Goertz.

[37] Further, in Droit de la famille – 091889, 2011 SCC 64, the Court established that the onus is on the party seeking a variation to establish such a change. The Court stated:

[31] The focus of the analysis is on the prior Order and the circumstances in which it was made. Willick [v. Willick, 1994 28 (SCC)] clarifies that a Court ought not to consider the correctness of that Order, nor is it to be departed from lightly (p. 687). The test is whether any given change "would likely have resulted in different terms" to the Order. It is presumed that the judge who granted the initial Order knew and applied the law, and that, accordingly, the prior support Order met the objectives set out in s. 15.2(6). In this way, the Willick approach to variation applications requires appropriate deference to the terms of the prior Order, whether or not that Order incorporates an agreement.

[30] That "change of circumstances", the majority of the Court concluded in Willick, had to be a "material" one, meaning a change that, "if known at the time, would likely have resulted in different terms" (p. 688): LMP v. LS, supra, at paras 31 and 30.

[38] There must first be a material change, even if both parties are seeking a change in the Order: See Persaud v. Garcia-Persaud 2009 ONCA 782.

[39] A material change of circumstance can exist when an existing Order is not working and needs to be clarified or fine-tuned: See Burton v. Brown, 2021 ONCJ 322, citing with approval at para. 19 Zolatruiuk v Johansen, 2000 22581 (ON SC), [2000] O.J. No. 1420.

[40] In M.S. v. D.F.M.A., 2020 ONCJ 497, the Court preferred the more liberal approach taken in Elliott [v. Loewen, 1993 16261 (MB CA), 44 R.F.L. (3d) 445 (Man. C.A.)] finding it was more responsive to the reality that as children age, their needs change and parenting Orders should be changed to meet those needs. Further, parents change – particularly in our Court where we see many young and inexperienced parents. If their ability to meet a child’s needs change, the Court should be prepared to change parenting time Orders if this is in the child’s best interests. In M.S., the Court found that the aging of the child, combined with the improvement of the father’s ability to meet the child’s needs, their improved relationship, and the mother’s refusal to support the relationship and withholding of parenting time met the material change in circumstances test.

Analysis

[41] In this Motion to Change, the Father sought an Order that he have reasonable access [hereinafter “parenting time” due to the amendments of the CLRA] to L, upon reasonable notice. In support of his request to vary the Parfett Order: “I bring this Motion as I want to re-establish contact with L. I am open to any form of contact the Court deems appropriate such as supervised access, Skype, Facetime, etc. As I am handicapped, I have Drivers/Friends who are willing to take me to any Centre, such as the York Centre in Cornwall. Perhaps the OCL would assist the Court not only in determination L’s views, but also assessing my mobility and parenting. I understand there has been no contact since 2011 and the Court will proceed cautiously, but I want to assure the Court and also the [Mother] that I will be very sensitive to L’s needs and I will cooperate fully with the Court and will follow recommendations/Order as need be.”

[42] In her Response to Motion to Change, the Mother disagreed with the Father’s request, and asked the Motion to Change be dismissed with costs. She sought an Order that the Father have no access to L except with express written consent of L himself. Her position was based on “an extensive history of access difficulties and compelling medical evidence detailed in [her] Form 14A affidavit.”

[43] Procedurally speaking, following the close of pleadings, an interim motion was heard by me on October 23, 2020, where I found that both parties demonstrated a material change in circumstances permitting the Court to review the Parfett Order. As noted, the Order provided for the Father’s parenting time with L to be supervised. It also provided that the matter could return to Court in January 2012 if access had not yet been resumed. It was clear that the Father had no access following the making of the Order. At that time, I found the least intrusive option was to request a Voice of the Child Report (“VOC”).

[44] The VOC was conducted by Natalie Cooper. The report, dated November 19, 2020, set out L’s views, wishes and feelings regarding having contact with his Father. Notably, L refered to his biological Father by his given name. He was able to recall bits and pieces of seeing the Father, recalled the Father getting mad and yelling a lot, and described the Father’s actions making him anxious, nauseous and uncomfortable. Ultimately, L was consistent in his views about not wanting to see the Father. Due to Covid, virtual interviews were conducted over Facetime with the child. This was not the fault of the clinician as it was reflective of what was available at the time the VOC was conducted due to the Covid-19 pandemic. However, given the Father’s concerns of undue influence, he was not satisfied with the report.

[45] On February 26, 2021, I dismissed the Father’s claim for reunification therapy, which was not properly before the Court, without prejudice to it being brought on proper notice to the Mother.

[46] On July 30, 2021, the parties consented to an Order that Sandra Kapasky would conduct a s.30 CLRA assessment on the issues of parenting time between the Father and L, an evaluation of special needs and health needs of the child, the mental health of the parent(s) and the impact on parenting, as well as the child’s views and preferences. It was agreed that the up-front cost for same would be borne by the Father, subject to the ultimate determination at trial of this issue.

[47] Ms. Kapasky’s report, dated October 4, 2021, was comprehensive and insightful. Interviews were conducted both virtually and in person, following the Covid-19 protocols.

[48] Through collaterals, Ms. Kapasky was able to confirm that L was diagnosed at a young age as having Generalized Anxiety Disorder and suffered from gastrointestinal issues which appear to be consistent with irritable bowel syndrome (IBS). He started taking medication for his anxiety when he was approximately seven years old, though stopped a few years ago. He has been troubled with issues sleeping. In 2020, L’s doctor noted that L had a diagnosis of Severe Generalized Anxiety, which was stable at that time. L reported to the assessor that one method of coping with his anxiety was through horseback riding and having his therapy dog with him as much as possible. L reported that his Father was a “trigger” for his anxiety.

[49] When speaking with L, the child described memories of his Father yelling and being angry. He reported that his Mother would not tell him such stories, and she only told him “good things” about his Father. Ms. Kapasky noted that L smiled when he reported similarities between himself and his Father and recalled some good memories of his Father. However, L voiced his concern about seeing his Father, that his fear of all the old feelings coming back, and he would be overwhelmed. L is a cautious young man who does not like change. He told the assessor that he tended to overthink things, and this causes him to worry and become so anxious that he felt physically sick. In those situations, he employed his coping mechanisms.

[50] L was clear with Ms. Kapasky that he was not prepared to have a relationship with his Father, and if forced, he would not attend. He reported being happy to receive gifts from his Father but was not comfortable to reach out to say thank you. L advised the assessor that he was not averse to periodically receiving updated videos from the Father to tell him how his life was going.

[51] Due to L’s wishes and the lengthy estrangement, Ms. Kapasky determined not to conduct an observational visit between L and the Father. However, the Father was asked to provide a video for her and L to review together and provided five questions to guide the video monologue. At one point in the video, when describing his cat, L’s “unemotional expression turned to a big smile.” However, at another point, the Father told L that the Mother had given away some of the Christmas gifts that were sent from the paternal aunt and uncle to L. Notably, L told the assessor that in fact the gifts which the Father believed were given away had not been given away.

[52] Ms. Kapasky was unable to receive any disclosure from the Father’s psychotherapist, Elizabeth Shoiry, despite numerous requests for same. Therefore, the assessor was not able to provide information to the Court regarding the Father’s mental or physical health.

[53] Ms. Kapasky found L to be extremely self-aware for a fourteen-year-old child, who was very protective of himself and his mental health. He was consistent that he did not want to have any contact with his Father and appeared to connect contact with his Father to stress and anxiety. His memories of the past were very real to L. L’s views and preferences were both strong and consistent, and the assessor found no evidence to support the premise that L’s statements were directly influenced.

[54] While the assessor expressed some concerns about the Mother exposing the child to adult issues, she nevertheless determined that the Mother had been able to provide positive memories to L of his Father and regularly updated the Father with information about the child.

[55] The assessor commented when assessing parent-child relationships and whether or not reintegration was possible, it was important to recognize that the parent-child relationship was not something that can be coerced, and it had to be reciprocated to be successful. She noted that in this family, it appeared that the Father’s need to have contact with L was in direct conflict with the child’s emotional health at this time.

[56] Ms. Kapasky determined that contact with the Father that was not in accordance with L’s wishes would not be in his best interest at this time. It was the assessor’s view that L would benefit from receiving periodic videos from his Father to say hello and to tell him what he was doing. She indicted that this would allow L to become more familiar with the Father and start to have exposure to his Father’s life. It was recommended that the Father send those videos once every six months, and that he retain the services of a professional such as Corrina Arsenault (L’s previous counsellor) for the sole purpose of receiving the video and reviewing them with L. This would allow L to have therapeutic support during this period, if necessary, and would also ensure that the videos were strictly for the child.

[57] Ms. Kapasky’s recommendations were the following:

1. Parenting time between L and Mr. Grette to be at L’s discretion including in-person visits, virtual contact and/telephone contact.

2. Mr. Grette to prepare a video message for L twice a year (once in February and once in August of each year). In the video, Mr. Grette will update L about what he has been doing, how his life is going and any new information about his paternal family members.

3. The video will be shown to L by a mental health professional such as Corinna Arsenault (or a similar professional in the Cornwall area) who Mr. Grette will retain solely for the purpose of receiving the video and reviewing it with L every six months.

4. Mrs. Saroli Ellis to support L in reviewing the videos sent by his father by taking him to the mental health professional’s office when contacted. Mr. Grette should provide Mrs. Saroli Ellis with the information regarding who he retained for the purpose of reviewing the videos with L.

5. Mr. Grette to be able to send cards and presents to L.

6. The parties to consider retaining a reintegration therapist if and when L requests to move forward with a relationship with his father.

7. Mrs. Saroli Ellis to continue to advise Mr. Grette of all major decisions that need to be made regarding L and her proposed decision and to take into account Mr. Grette’s opinion before making any major decisions.

8. Mrs. Saroli Ellis to provide Mr. Grette with medical, mental health, educational and extra-curricular information regarding L at his request as well as a regular update as per the child’s progress.

9. Mrs. Saroli Ellis and Mr. Grette to support L’s continued involvement with his present extra-curricular activities including horseback riding.

10. Mrs. Saroli Ellis and Mr. Grette to support L’s mental health by encouraging his relationship with his therapy animals.

[58] Following Ms. Kapasky’ s assessment, the parents were able to set aside their tumultuous history and generally accept her recommendations. However, the Mother proposed three changes to the recommendations. The Father asked that the recommendations be implemented as set out by Ms. Kapasky. I will therefore only address the three issues to which the parties are not ad idem.

Should the videos and letters to be provided by the Father to the child be child-focused?

[59] While there was agreement that the Father would send the child videos twice per year, the Mother requested that the wording of the Order include that the videos and/or written communications be child-focused/ child-appropriate. The Mother’s position was that the Father has previously exposed L to negative statements about herself, such as his letter to his “little buddy”, attached to the Mother’s affidavit dated January 27, 2020 (A899[1]), and in his recent video where he accused the Mother of giving away gifts destined to L. Statements of this nature undermine the Mother’s relationship with the child and were relevant pursuant to s.24(3)(b) and (c) CLRA.

[60] As noted above, the Father accepted Ms. Kapasky’s recommendations as they were set out in her assessment. The Father suggested that adding the words “child-focused/child appropriate” grammatically and conceptually contradict the purpose of the videos/letters, which was to have the Father update the child about what he had been doing, how his life was going and any new information about his paternal family members. The additional terms were not added by the assessor. It was suggested that the Father should be trusted in how to approach and execute the video, especially after the educative aspects of attending the trial. He suggested to add the wording was unnecessarily insulting and overreaching. However, during his testimony, the Father agreed that the videos would be child-focused. He also admitted that it was not okay to speak negatively to L about the Mother, but then defended his statement to L in the video by indicating that he said what the Mother had told him, which was she gave the gifts away. Therefore, he felt it was not speaking negatively, he was speaking honestly.

[61] In determining this issue, the Court’s primary focus is what is in the child’s best interest. While I am mindful that the Father has ameliorated his written communications with the Mother (and vice-versa), the Father nevertheless unnecessarily maligned the Mother in his video communication when he accused her of giving away Christmas presents from the Father’s family. He did not have any insight as to how a comment of this nature could affect L. L felt the need to defend his Mother in telling the assessor that he had received the gifts and they had not been given away.

[62] It is a basic tenet that communications with children should always be child appropriate. I am of the view that additional wording as suggested by the Mother can only help ensure that the communications are a positive experience for L. This was not, from my perspective, meant to be insulting, but instead to provide clear terms that the videos and written communications must be child appropriate.

Who should arrange for a Mental Health Professional to Watch the Videos provided by the Father to L?

[63] Ms. Kapasky recommended that the Father retain a mental health professional such as Corrina Arsenault, solely for the purpose of receiving and reviewing the video with L. Again, the Father accepted this recommendation without any change. He argued that the assessor was not called as a witness to explain why she made the particular recommendation. He speculated that perhaps the assessor wished the Father to feel like part of the process. Regardless, he suggested that it was the Mother’s onus to vary the recommendation of a Court Ordered s.30 assessment.

[64] The Mother’s position was that she should arrange for the mental health professional because she was very familiar with them locally, and it would be easier for her to arrange than the Father. She also indicated that L would trust this person if she could truthfully say that she arranged for this person to watch the videos with him. She argued that the Father did not lead any evidence as to why he believed he was better suited to select the professional. The Mother submitted that s.24(3)(b) and (c) CLRA applied, as this issue was relevant to the development and maintenance of the child’s relationship with the other spouse. Given L trusts his Mother, she sought this Order to ensure his comfort with the process so he would watch what the Father sent. This in turn was supportive of the Father’s relationship with L.

[65] The Court’s primary focus is always what is in the child’s best interest.

[66] In the assessment, Ms. Kapasky described L as not being averse to periodically receiving updated videos from the Father. After approximately 10 years of estrangement from his Father, I view this as a positive step forward toward a relationship between the Father and the child. L’s views were described as strong and consistent. L nevertheless has Generalized Anxiety Disorder and is very sensitive to changes.

[67] In considering what is in L’s best interest, in view of the recommendations of Ms. Kapasky, I find it is important for L to trust the person with whom he will be watching the videos. I find it is appropriate that the Father locate two mental health professionals who are willing to receive and review the video with L, and the Mother shall choose between the two professionals. This shall ensure that the Father has active involvement in the process, and the Mother can thereafter determine which of the two professionals would be the better match for L.

Should there be an Order requiring the Father not to attend anywhere he knows or reasonably expects the child to be?

[68] Ms. Kapasky recommended that the parenting time between L and the Father be at L’s discretion, including in-person visits, virtual contact and/or telephone contact.

[69] The Mother wished to add to the terms that the Father shall not attend anywhere he knows or reasonably expects the child to be.

[70] The Father submitted that the terms proposed by the Mother were overly broad and were not found in the assessment.

[71] At trial, the Father testified that he would like to watch L horseback ride and do jumps, but that L would not need to see him. He knew that L was a member of a club, and admitted he had no idea where and when this could occur. He would not want to be seen, but he wanted to be able to see L. For this to come to fruition, the Mother would have to tell him when and where it would take place, and the Father suggested he could hide behind a tree or something so he would not be seen by L.

[72] The Mother expressed concern about the Father’s request to see L at a horse show. The Mother’s evidence was that it would not be possible to hide behind a tree and not be seen given the nature of the horse show facilities. More importantly, the risk to L would be too high if he were to see his Father attend uninvited. She submitted that the Father’s needs cannot outweigh the process.

[73] The evidence was clear that L does not wish to have direct contact with his Father. Ms. Kapasky equally noted that the Father’s “need to have contact with [L] is in direct conflict with the child’s emotional health at this time.”

[74] The evidence supported the Father’s strong desire since at least 2016 to have a relationship with the child. Despite same, there was no evidence that he attempted to show up where L could be reasonably expected to be present, or otherwise circumvent the terms of the Order.

[75] I am of the view that the evidence does not support the Mother’s requested term as part of the Final Order.

Issue 2 –Child Support Variation, arrears, section 7 expenses

Orders sought

[76] The Mother’s request to readjust child support was found in her Response to Motion to Change, dated January 27, 2020. In same, she sought a change in the child support Order as the Father “is now managing his own finances, and adequate financial disclosure has never been provided by the Respondent [Father] who is in the unique position of receiving $13,500 per month as a structured settlement (plus likely rental income) arising from a $4 million insurance settlement, but his Notices of Assessment are under $10,000 per year.”

[77] At paragraph 15 of her Response, she asked that based on the payor’s income of “unknown”, that the Respondent pay child support to the Applicant in the amount of “$600 or more” per month for the child, with payments to start immediately, pursuant to the Child Support Guidelines. The Mother sought an immediate start for the Father to pay a “TBD [to be determined]” amount for the child’s therapeutic expenses, totalling “TBD”. She clarified at section 21 that the s.7 expenses would be fixed at a steady amount per month based on past practice and future projections.

[78] The Mother specified that she wished “child support payable be adjusted to the [Father’s] true income, after full financial disclosure has been made, and tax consequences of the structured settlement be taken into account, to not be lower than the current $600 per month paid, or higher according to true income.”

[79] In her Response, the Mother asks for “[f]ull and continuing financial disclosure by the Respondent since 2011 and relevant psychological medical disclosure since the 2016 regaining of financial capacity by the Respondent.”

[80] The Father disputed the Mother’s request. At the very most, if any change was to be made, he suggested it commence January 1, 2020, to coincide with the issuance of the Mother’s Response.

[81] Below is a summary of the evidence on the support issues.

The Father’s evidence

January 11, 2019 affidavit

[82] The Father has not had any contact with L since late 2011.

[83] The Father became competent in 2016. He has had no dealings with the OPGT since then.

[84] The Father continues to receive $13,500.00 per month from the structured settlement.

[85] The Father resides alone in his condo and has people who assist him. His house cleaner drives him for groceries. He takes a taxi to the local health club three times per week. His friend drives him to his lawyer’s office in Ottawa when required. He has a doctor, and was taking his prescriptions for diabetes, but has no other prescriptions. He drinks very little and does not take any non-prescribed drugs. He struggles to walk.

[86] Prior to 2016 the OPGT paid the child support as Ordered. The Father voluntarily increased support to $600.00 per month after becoming competent.

August 11, 2020 affidavit

[87] The relevant evidence found in this affidavit was also stated in the January 11, 2019 affidavit.

February 16, 2021 affidavit

[88] Due to Covid-19, the Father no longer attended the health club as it was closed.

[89] The Father stated he received $11,597.74 per month from the structured settlement.

[90] The Father provided examples of the Mother mocking and ridiculing him.

[91] The Father believed that the $389.28 per week for income replacement was never varied.

May 31, 2021 affidavit

[92] The Father indicated that due to being incapable at the time of the Parfett Order, he was not aware of the documents filed by the OPGT in support of same. He had not seen the motion record filed by Ms. Rufiange prior to it being provided by the Mother in her motion materials.

[93] Prior to receipt of the May 28, 2021 affidavit by the Mother, he was unaware that the Mother was seeking to impute $372,746.00 of income to him per year, as well as seeking to have arrears fixed at $288,924.90. His evidence was that these amounts are staggering and will alter his life.

[94] He pointed to some inaccuracies in the Mother’s materials, such as the $3,000.00 cheque being NSF, which he says he repaid.

[95] His evidence was that the structured settlement payments since February 2021 are now $11,597.74. The structured settlement specified $3,767.06, not $3,594.00 per month, indexed at 2% per year compounded (referencing the McKellar structured settlement report). It was paid for a period of 15 years. The last payment was January 2021. He stated that the judgment did not state that the amount was intended for child support.

[96] He indicated that he no longer receives Income Replacement Benefits. His monthly gross rental revenue is $1,400.00 per month, and he has expenses which lower that amount, such as property management fees.

August 25, 2021 affidavit

[97] This affidavit was primarily about the Case Management Judge issue, which was ruled upon prior to the trial.

October 6, 2021 affidavit

[98] The Father’s evidence was that since the MVA, he has suffered a great deal of mental pain and physical damage.

[99] Before regaining his competency, the Father’s typical annual expenses were for medical/ rehabilitation including psychotherapy, physiotherapy, capacity assessments and transportation. They now consisted of medical, dental fees, gym membership and a personal trainer, allowance for companionship and personal support services, housekeeping/ cleaning and A.C.T. Inc. Therapy to try to regain his driver’s licence. In 2011, his expenses were $73,275.63, but this did not include the gym membership, personal trainer, or A.C.T. Inc. Therapy. Those expenses were incurred for the 2012, 2013, 2014 years.

[100] It was the Father’s position that in 2021, his expenses were similar to those in 2011, though he no longer attended physiotherapy. He attends the gym three times per week with a personal trainer. He stated that his body required more therapy, and he cannot walk more than a few feet before getting tired. His balance was off, which puts him at risk of falling and injuring himself. He has limited mobility on his right side. In September 2021 he reached out to his psychotherapist to recommence therapy.

[101] In 2016, he occasionally hired Genevieve Berthiaume to help him with his transportation. At that time, he had also used the services of an adapted taxi, however, they were often late therefore he stopped using that service. Since then, Ms. Berthiaume was helping the Father with administrative tasks which were difficult for him, such as computer tasks, filling documents, etc.

[102] In 2017, the Father also employed Kimberly Taono (“Kimmie” in his bank statements), who was his housecleaner and errand runner. She retired in June 2021. At that time, the Father employed Ms. Berthiaume to replace her. Since June 2021, Ms. Berthiaume has been employed full-time by the Father as his personal assistant, which included preparing the necessary paperwork and/or disclosure for the trial.

[103] In response to the Mother’s questions about where the Father spent his money, his evidence was that since the MVA, friends and family have provided him with emotional support, companionship, and personal support services. He had received help from both men and women and he took offence to the Mother’s assertion that he was essentially wasteful of his money. He will never be able to have a normal life or work again, therefore having people support him emotionally, being companions, regardless of their gender brings him a bit of happiness to his daily suffering.

[104] His view was that in 2011, a “deal” was brokered by the OPGT, and he submitted that to go back and change the “deal” when his circumstances have not materially changed is not appropriate. He took the position that if he or the OPGT had known that 10 years after the Final Order was made there would be a request to re-analyze the settlement, things might have been different. He stated that the Soberman Report fixed his damages at over $14 million, but the OPGT settled for $3 million. This was never challenged. The Father took the position that the Mother’s then lawyer came up with the income replacement figure of $36,379.00 as annual income, which was used in the Parfett Order. Now, the Mother was asking the Father’s income to be fixed at $300,000.00, as opposed to $36,000.00, which he suggested would likely not have been agreed to at the time of the Final Order. Since becoming competent in 2016, he structured his financial affairs in accordance with the terms of the Parfett Order. If the Order sought by the Mother was granted, his financial world may be turned upside down, and he cannot go back and change the other settlements brokered.

[105] Regarding payments made by the Father to Meghan, his evidence was that he sent her a lot of money but did not realize how much had been sent. Meghan had provided him with companionship and emotional support since they started talking in 2017. She however became very demanding over time, harassing him to send her more money. He submitted that he was financially abused by Meghan, and though he had asked for the return of his money, the loan had not been repaid.

Trial evidence

[106] In the summer of 2021, the Father purchased the condo in Lachine for $455,000, with a mortgage of $440,000. He pays $1,945.00 per month for the mortgage, $450.00 per month for condo fees, as well as associated monthly fees such as cable, internet, and telephone.

[107] The Father goes to the gym, driven there by his assistant Ms. Berthiaume, three times per week and works with his personal trainer, the cost being approximately $1,000.00 per month. He walks on his treadmill on the other days. Other usual expenses include groceries and a meal delivery service on Fridays, which is $130.00 per week. He does not anticipate any changes to his daily routine.

[108] The Father confirmed he never obtained a criminal record check on Ms. Berthiaume. Ms. Berthiaume cleans for him, drives him to the grocery store, the gym, to see his lawyer, and other errands. Though he has received invoices from Ms. Berthiaume, he admittedly did not disclose them to the Mother.

[109] The Father does not go to the doctor, and the last time he attended was about five years ago as his doctor retired. He is on the waiting list for a new doctor. In the past five years, he has had eye surgery and, from 2013 to 2016 was seeing his “psychologist” Elizabeth Shoiry. He stopped seeing her because the OPGT stopped paying her when he became competent and he felt the cost was too high. He planned to go back to address issues such as not seeing his son, and the after-effects of the car accident.

[110] In cross-examination, despite the above, he did not agree that his medical expenses were now lower than in 2011. His evidence was that the medical expenses total approximately $1,250.00 per week, including the cost of Ms. Berthiaume’s services, though she is not a personal support worker (“PSW”). He confirmed that he paid the following in the past years for medical expenses (see B919):

2008: $65.00

2009: $1,106.22

2010: $29,104.90

2011: $59,317.38

2012: $39,091.41

2013: $41,562.82

2014: $44,656.15

2015: $39,103.09

2016: $20,960.01

Total: $274,966.98

[111] The Father was aware that L’s horse being of failing health and would soon need to be put down. He confirmed that he pays approximately $100.00 for L’s dog’s pet insurance. To obtain the Father’s contribution, the Mother sends him an email, tells him how much she needs, and he e-transfers the money to her. He does not receive invoices or receipts, though he has asked to see some. He has not received an invoice for the horse in a year. The Father confirmed that the dog is important for L’s ongoing development and care, and he was therefore willing to pay a portion of that expense. When asked in cross-examination of his willingness to support L in getting a new horse, he was not yet certain. The prior horse had been donated to the family. He did agree however that riding lessons and having a horse, a dog, and playing piano helps L with his anxiety.

[112] The Father’s evidence was that since taking over the payments of support from the OPGT, he has paid child support every month, directly to the Mother, either by cheque or e-transfer. He has never been involved with the Family Responsibility Office.

[113] The Father testified that he decided he would pay more than the obligated $336.00 per month of support to the Mother because he could, and knew it went toward L and relevant expenses which he wanted him to have. After becoming competent, he voluntarily paid support of $600.00 per month without the involvement of the Courts or lawyers. He paid that amount until the Court Ordered an increase in support as of March 2021. When asked to contribute to L’s martial arts, the Father admitted that he declined to contribute because he wanted a receipt.

[114] He now pays approximately $1,400.00 per month, including what the Mother indicated was required for the horse and any of L’s activities. He agreed that the new temporary Order required him to pay $907.00 per month, as well as 88% of the s.7 expenses. He was unable to confirm if prior to the 2021 Order he had been paying 50% of s.7 expenses.

[115] The Father’s evidence was he never received a request from an expert regarding his financial disclosure.

[116] The Father also testified that he had provided the Mother confirmation of what he earned every year. He provided his Income Tax Return (“ITR”) every year, and the OPGT went by how much money he made to determine support. He did not recall if he provided his ITR’s from 2016 onward. He however did not receive any ITR’s or financial disclosure from the Mother after 2016, contrary to the Parfett Order. When asked to clarify his answer, the Father testified that he sent the ITR “in” to Canada Revenue Agency (“CRA”), and if the Mother wanted them, she could get that information from CRA. He then indicated that he never disclosed his financials as at one point she told him not to call her, and he did not think he had to disclose them. He knew what was required of him for paying support and s.7 expenses.

[117] The Father testified that his Will (Exhibit 8) provided that all of his insurance policies went to L, yet stated he did not believe he owned any. However, the universal legacy terms of his Will bequeath all his property to L, which includes his RDSP, any other payments made to him by the insurance company, and his two condos.

[118] Regarding the Ottawa condo, when the parties’ home was sold, the mortgage insurance monies went toward the condo purchased the Father by the OPGT. He has owned that condo for about 5-6 years but has never resided there. It is currently rented out to tenants. A few years ago, he hired a property management company for same.

[119] With respect to the Mother’s assertion that she never received $3,000.00 toward support in 2016, the Father provided Facebook messages confirming not only that she received the money, but the Father provided an additional $500.00.

[120] The Father testified about the money he sent to different people, as noted in his bank statements. His evidence was that Meghan was his companion. However, they were never intimate. She had sold him a sob story about her children, which he believed, and over time sent her approximately $150,000.00. Though he stated he was taken advantage of and robbed, he never called the police. His evidence was some of the money was a loan, which he asked for back, thought he could not identify how much of the money was loaned to her. His evidence was his last contact was approximately six months prior, but thereafter agreed that he sent her some money in June 2021 (B1252). The June payment was apparently to help her obtain food for her children. His evidence was that he started asking for money back “a few years ago” but only provided an email from March 2021 confirming same. He stated that occasionally Meghan would send him a topless picture of herself to get money out of him, but this did not occur often. The last time was a few months ago. He confirmed that he met Meghan on “what’s your price” and initially paid her to go on a date with him. He agreed that he had not disclosed all the relevant bank statements which would show if more money was sent to her than suggested.

[121] He had an intimate relationship with “Miss Woott”, which lasted about a year. The last contact was a few years ago. “Kimmi” was his cleaning lady. The other people who he provided money to had provided him with companionship. No other females listed, apart from his ex-wife Brigitte lived with him or stayed overnight. He sent Brigitte money because she was his ex-wife, and she did not make a lot of money where she works. Robert Hage was his brother-in-law; William Rose was his nephew. His evidence was some people still requested money of him, but he has refused. He was previously sending money due to being vulnerable, but has since become wiser to his situation.

[122] The Father agreed that he did not fully comply with the disclosure Order of June 14, 2021 (page 378/385 of trial record). His evidence was:

3(a) He is not receiving any interest or invest income, but did not confirm the date when this stopped and why. To this he disagreed with the proposition that he had extra money with which he could invest, despite his income being higher than his expenses on his last financial statement.

3(d) The Father was unable to indicate if the confirmation of what payout was received annually for the structured settlement was provided to counsel.

3(e) The Father never provided what, if any, income replacement benefits from the 2009 Order under which the SABS were being received at the time, as well as if/when they stopped being paid.

3(f) The Father did not recall if he provided evidence of when his medical/rehabilitation expenses decreased from those he required pursuant to the 2011 settlement.

3(g) He believed he had sent the 2011 to 2015 ITR’s and NOA’s to counsel.

3(i) He believed he had provided, and/or used best efforts to obtain bank statements, credit card statements, and loans from January 2018 to present.

[123] Regarding his affidavit dated October 6, 2021, the Father agreed that he was declared incompetent and unable to mange his finances during the time of the civil litigation, and the OPGT conducted the litigation on his behalf. He was not the instructing party for Mr. Pollock. He agreed that he would not have first-hand knowledge of what the Soberman reports meant, and that even if he had understood, it was unlikely he would remember what happened. In re-examination, the Father testified that he never discussed the settlement with Ms. Rufiange, had no knowledge about the sub-headings or “global” settlement, and did not recall speaking to Ms. Rufiange after 2016.

[124] Regarding his expenses set out in the October 6, 2021 affidavit, his evidence was that they were similar to his past expenses. When the Father was residing with Symphony Senior living, they provided him with his room, medication, and meals. Additional expenses he was going to incur included returning to psychotherapy, buying a motorized wheelchair, once he can drive, purchasing a car and having it modified. While he needs to be able to complete a course to be able to drive, he admitted that in the past he could not get his licence due to his judgment issues.

[125] The Father initially denied trying to decrease the amount of child support payable to the Mother for L in 2016, but then when presented the letter from the OPGT to prior counsel dated March 15, 2016, he then agreed that the Mother would not have fought him to increase child support. It was nevertheless agreed that the letter addressed both support and access to L. (See p.45/385 of trial record)

[126] He acknowledged in cross-examination that after becoming competent he initially stopped paying child support, but then caught up.

[127] The Father agreed that despite his statement at paragraph 5 of his May 31, 2021 affidavit, the structured settlement specified that $3,6767.06, indexed at 2% per year was to be paid for 15 years, and 2021 was not 15 years from 2011. He agreed that he will be receiving the structured settlement for as long as he lives.

[128] He confirmed that prior to the MVA, he was not good at managing his finances. He agreed that in 2016 when he became competent, his only debt was the Ottawa condo. The OPGT transferred over $110,000.00 of his own money to him in 2016. None of that money was invested, and he now has debts, including the new condo, significant credit card debt and a line of credit.

[129] He acknowledged that he transferred more to Meghan than he had provided to L.

[130] He has never had any offshore bank accounts.

[131] The @BuySafe website was a dating site to meet people, but the Father did not recall the last time he used that site.

[132] He does not have any investment income and did not remember the last time he had any such income.

[133] The Father wished the Court to consider the motion record which was filed in support of the Parfett Order, particularly Ms. Rufiange’s affidavit (Exhibit 6); the judgment of Justice Frank from May 4 (or 11), 2011 (Exhibit 18) Grette v. L’Union Canadienne Compagnie D’Assurances; the judgement of Justice Stinton dated September 17, 2009 (Exhibit 19) Grette v. L’Union Canadienne Compagnie D’Assurances; judgment of Justice Frank from May 4th (or 11th), 2021 (Exhibit 20) Grette v. Helena M. Lindquist; and the Order of Justice Kershman dated April 28, 2008 (Exhibit 21) regarding interim custody and child support.

[134] The Father confirmed that he does not work, does not own a business, and does not really have any hobbies.

[135] In 2016 he was deemed capable of managing his finances and has always been capable of managing his personal care.

[136] In cross examination, the Father confirmed that he walks on a treadmill, lifts weights, and works out with a personal trainer. He cannot currently drive.

[137] The Father acknowledged in cross-examination that he was told that the structured settlement was a global settlement without a breakdown.

[138] Regarding s.7 expenses, the Father acknowledged he did not provide the Mother with a computer for L for school, nor a tablet. He did not believe the requested devices were for L as he already had a computer. He accused the Mother of lying, and he does not like it when people lie to him. He believes the Mother lies to him, therefor he does not trust her.

[139] The Father acknowledged spending $400.00 per month on alcohol and tobacco, mainly because he liked cigars. His affidavit evidence indicated he did not consume alcohol, whereas at trial he indicated that he drank occasionally. He admittedly was drinking at the time of the MVA (he was a passenger), and had previously attended Addictions Anonymous, but advised that he occasionally drank because of want, not need.

[140] Based on his January 11, 2019 financial statement, the Father listed $13,500.00 from the structured settlement and rental income of $1,400.00 per month, totalling $178,800.00. The rental income was the gross amount. He also had condo fees, which were $300.00 per month, plus payment for the management company. He had very little recollection of what was found in his financial statement but accepted the numbers that were listed. He confirmed that public transit, taxis, and perhaps his housekeeper Kimmie driving him around was $1,000.00 per month. His medication and drugs were $400.00 per month. He had a dental work back then, seeing the dentist four times per year. Debt payments of $500.00 per month, and yearly expenses of $97,200.00 were confirmed, “if it’s on my financial statement, then that’s what I paid”. He acknowledged not listing his CPP income in 2019, though he was in receipt of same.

[141] He testified that he believed he only had one bank account at CIBC, then stated “I guess two accounts at CIBC” as the 2019 financial statement listed two accounts and denied having a Scotiabank account though one is listed.

[142] On his March 19, 2021 financial statement, the Father listed rental income as $1,060.00 per month, net; $789.22 CPP; $11,597.74 for the structured settlement, where he noted “$2M for general damages, $2M for medical and rehab expenses”. He believed the numbers were accurate at the time of signing the statement. He was unable to recall if Ms. Berthiaume worked for him at that time, as he was unable to remember exact days or year. He testified he only had one CIBC account, did not recall if he had two at the time he signed the financial statement. As for his savings plan, the Father had an “RRDP”, worth $55,000.00, which he had not contributed toward since just before becoming competent. The OPGT had been contributing toward it on his behalf. His Visa debt was $15,000.00. In re-examination, the father confirmed there was a typo listing $1,060.00 twice, once for rental income and once for other income. As such, his total annual income based on that financial statement should be $161,363.52.

[143] The Father’s September 23, 2021 financial statement noted his last year’s gross income from all sources was $159,034.56, which included $789.22 from CPP; $865.92 from net rental income; and $11,597.74 from the structured settlement per month. His annual expenses total $123,098.00. By this time, he had two condos, increasing his expenses. He erroneously noted $90.00 per month for medicine and drugs, when it should have been $400.00 per month. He pays his personal assistant $4,000.00 per month, or $1,000.00 per week, totalling $52,000.00 annually, plus HST will be charged on top of that. His condo in Ottawa was worth $342,600.00 and mortgage free. His condo in Lachine was worth $455,000.00, but fully encumbered. He had the same bank accounts and RDSP, no other investments. His debts included a line of credit of $34,000.00, the above mortgage, a Visa debt of $29,000.00 and Amex debt of $3,700.00.

[144] The Father was asked if, based on the OPGT letter from Ms. Rufiange dated December 20, 2010, he put any money away in a separate account for L. He did not, but the OPGT put money in an RDSP. He did not personally contribute toward that. The Father’s evidence was that he does not have much money to put aside for L’s education, but if L needed money for an education fund, he would come up with it.

[145] In re-examination, his evidence was that he does not have the ability to raise $200,000.00 as sought by the Mother.

[146] While the Father had not given money for an RESP to the Mother, his Will provides that his assets would go to L upon death, which at this time would include the full value of the Ottawa condo as well as the Lachine condo given it was fully insured.

[147] When asked if his income continued to increase based on the structured settlement, the Father suggested it had recently decreased. However, after looking at the exhibit book which contained a bank statement dated December 31, 2016, the Father confirmed that $15,633.41 was directly deposited into his CIBC (B1032).

[148] He still has people he speaks to that he met online, from places like “What’s your price”. That website was one where one party pays for the other to go on dates or meet them, and the Father would be the one who would pay. However, his evidence was that he does not send them money. He could not recall names of people he had spoken to but communicates with them once every few months.

[149] While he testified that Meghan had taken advantage of him, he was not worried about Ms. Berthiaume doing the same as he no longer felt vulnerable. This was despite Ms. Berthiaume knowing where to find his Will and communicating with the bank for him in his presence. The Father testified that Ms. Berthiaume did not know his passwords, and only helps him when asked.

[150] Based on the Father’s ITR’s/ T1 General, NOA’s and evidence at trial, he earned and paid the following:

2003: Line 150: $17,698.26;

Gross sales from “Dean Grette Reg’d” where he was a 100% owner: $42,644.88

Gross Profit: $25,799.29

2004: Line 150: $18,768.12;

Gross sales from “Dean Grette Reg’d” where he was a 100% owner: $37,383.91

Gross Profit: $27,739.67

2005: Line 150: $24,915.28;

Gross sales from “Dean Grette Reg’d” where he was a 100% owner: $49,270.40

Gross Profit: $34,547.64

The MVA occurred July 20, 2006

2006: Line 150: $20,084.14

Gross sales from “Dean Grette Reg’d” where he was a 100% owner: $34,628.74

Gross Profit: $26,170.14

2008: The Father paid $3,060.00 for child support, based on an average rate of $102.00 per month.

2009: The Father paid $4,248.00 for child support, based on an average rate of $102.00 per month until July 2009, when he paid $174.00 per month.

2010: The Father paid $2,736.00 for child support, at a rate of $174.00 per month.

2011: Line 150: $12,641.00, consisting of $8,114.00 CPP, and $4,527.00 investment income.

The Father paid $2,088.00 for child support, at a rate of $174.00 per month until September 2010, then as of October 2010 at a rate of $336.00.

2012: Line 150: $14,012.00, consisting of CPP of $8,341.00, taxable dividends of $964.00, investment income of $2,180.00, net rental income of $1,968.00, and other income of $559.00.

The Father paid $4,032.00 for child support, at a rate of $336.00 per month.

2013: Line 150: $27,339.00, consisting of other employment income of $2,335.00, CPP of $8,491.00, taxable dividends of $1,656.00, investment income of $1,218.00, net rental income of $12,099.00, taxable capital gains of $668.00, and other income of $872.00.

The Father paid $8,015.00 for child support, at a rate of $336.00 per month until September, when it was increased to $382.00 per month, as well as $589.00 for a dental expense for L. (*The ASF set out the Father paid $4,584.00 in 2013.)

2014: Line 150: $22,368.00, consisting of CPP of $8,560.00, taxable dividends of $1,704.00, investment income of $1,482.00, net rental income of $8,745.00, taxable capital gains of $988.00, and other income of $889.00.

The Father paid $4,584.00 for child support at a rate of $382.00 per month.

2015: Line 150: $13,530.00, consisting of CPP of $7,992.00, taxable dividends of $1,438.00, investment income of $1,261.00, net rental income of $961.00, taxable capital gains of $981.00, and other income of $897.00.

The Father paid $4,584.00 for child support at a rate of $382.00 per month.

When the Father was declared as competent to manage his finances

2016: $12,756 based on his NOA, resulting from $8,200.00 from CPP and $1,900.00 net rental income.

The Father paid $6,074.50 for child support, based on various amounts of support, such as $382.00, and then $426.30 per month.

2017: Line 150: $11,917.00, consisting of CPP$8,862.00, Net rental income of $2,979.00.

The Father paid $7,760.00 for child support and s.7 expenses, vacillating between $600.00 per month to $300.00 to $900.00, etc.

2018: Line 150: $9,606.00.

The Father paid $8,647.50 for child support and s.7 expenses, at an average rate of $600.00 per month.

2019: $12,594.48 at Line 150; resulting from $9,202.08 from CPP and $3,392.40 net rental income. His evidence was that he increased the rent and hired a management company to manage the condo

The Father paid $8,878.25 for child support and s.7 expenses – in varying amounts.

2020: $9,376.92 at Line 15,000; resulting from $9,376.92 from CPP and $0.00 net rental income. His evidence was the condo was empty for a while.

The Father paid $12,978.300 for child support and s.7 expenses, in varying amounts.

2021: As of September 2, 2021, the Father paid $12,978.30.00 for child support and s.7 expenses, in varying amounts.

The Mother’s evidence

January 27, 2020 affidavit

[151] The Mother’s evidence was that in 2011, the consent Final Order imposed only a modest amount of monthly child support payable by the Father, as well as a sharing of special and extraordinary expenses. However, she understood that the Father received a settlement of approximately $4 million (minus certain fees) as a monthly structured insurance payout arising from the accident, payable to him at a rate of $13,500.00 per month.

[152] She has never received full financial disclosure concerning the Father’s settlement, his tax returns, his property, his investments, and the amounts of money he has access to every month. Her evidence was that when the OPGT was managing the Father’s finances, it was very difficult to secure disclosure of financial information from them. She indicated since the Father was managing his own finances, this was a dramatic change of financial circumstances from the time of the Final Order, requiring a re-examination of all amounts owing as child support from 2011 to present.

October 15, 2020 affidavit

[153] The Mother submitted that since the MVA, she had been the primary target for the Father’s rage, despite all she did for him.

[154] She stated that since at least 2010, unbeknownst to her until the Motion to Change was brought, the Father has had untaxed income of $162,000.00 per year ($13,500.00 per month) as part of the structured settlement, however, he never paid support based on that income. That income would generate support of $2,398.00 per month.

[155] The Mother’s position was that she was not given the information regarding the Father’s income in 2010 or when she agreed to accept child support based on the Father’s Line 150 income in September 2011.

[156] She had struggled to meet L’s needs over the years, including paying for his therapy horse, when the Father had benefited for his substantial income.

[157] Based on their respective incomes, the Father would be responsible for 96.2% of the child’s s.7 expenses, and the Mother 3.8%, however, she would agree to pay 5%. L’s current s.7 expenses are educational; medical expenses not covered by insurance, L’s therapy horse (including all costs of maintenance, such as veterinary bills, food, and riding equipment), L’s riding lessons and piano.

December 9, 2020 affidavit

[158] This affidavit was to address an alleged notice issue on the interim motion regarding child support. The Mother maintained that the Father was properly on notice, and the request to increase child support should not have come as a surprise to him. The issue of financial disclosure had been outstanding since day one, as noted in the Mother’s Response to Motion to Change dated January 27, 2020. Despite same, at the time of the December 2020 affidavit, the Mother was still seeking disclosure detailing the Father’s income, including the breakdown of his settlement funds and rental income. She also raised the issue of the lack of updated financial statements by the Father, despite support being a live issue for the interim motion.

May 28, 2021 affidavit

[159] In the May 28, 2021 affidavit, the Mother’s requested final Orders included that the Father’s income be imputed to $372,746.00; that he pay ongoing child support of $2,903.00 per month, that he pay 97% of the child’s s.7 expenses; that as a result of underpayment of child support, arrears from October 1, 2011 to June 30, 2021 be fixed at $288,924.00; that the Father be Ordered to place all funds allocated from his structured settlement for L in excess of the child support owing/paid, into a trust for L, naming the Mother as the trustee.

[160] The Mother acknowledged that in the 2011 Parfett Order, she was granted child support with the option to review the Father’s income with an expert.

[161] Regarding the child’s financial needs, the Mother’s evidence was he needed the support of various therapies, including but not limited to, counselling, medication, a therapy dog, and a therapy horse. He usually participated in physical activities such as soccer, horse riding lessons, and other activities such as music lessons. These activities distract L from his anxiety and gives him a much-needed outlet.

[162] The Mother’s income had always been limited due to her narcolepsy, affecting her employability, and L’s needs which require her to be present for him. Following the MVA, the Mother did not qualify for ODSP, therefore she subsisted on Ontario Works.

[163] Unbeknownst to the Mother, the Father incurred significant debt prior to the MVA, which was resolved in 2011.

[164] The Mother submitted the Father received income more in one month with his income replacement benefits and a structured settlement than she received in one year. She struggled to make ends meet for herself and L.

[165] L receives $257.58 per month as the child of a person receiving CPP disability.

[166] L’s stepfather is 62 years old, works as a labourer, and is facing health issues. The Mother suggested it would not be long until he will no longer be able to work.

[167] The Mother does not have the money to put L through post-secondary education, but if a fund was created for L by the Father with the amount of money intended in his structured settlement allocated to L, L would be able to attend any school he wished without financial constraints, and pay for the mental health support he will require in the future.

[168] The Mother’s evidence was that after gaining competency in May 2016, the Father stopped paying support until 2017. He sent her a cheque at one point for some arrears, but it was NSF, and she never received those monies. At trial however, the Mother acknowledged receipt of $3,500.00.

[169] Since regaining competency, the Father paid 50% of some, but not all, of L’s s.7 expenses, and occasionally sent extra money for gifts.

[170] The Mother tabulated the support paid by the Father since the Parfett Order (October 1, 2011), being $50,726.20. She suggested that he should have paid $2,903.00 per month, for 116 months (to end May 2021) which would be a set off of $289,021.80 owing ($336,748.00 minus $50,726.20).

[171] The Father had been paying child support of $907.00 per month since March 1, 2021.

[172] From the Mother’s perspective, the Father’s income, grossed up, was approximately $372,746.00 per year, assuming $3,000.00 in interest income, broken down as follows:

a. structured settlement: $13,500.00 per month, non-taxable income;

b. CPP Disability: $789.22 per month;

c. Income Replacement Benefits (through SABS): $389.28 per week, non-taxable income;

d. Rental Income from his Ottawa Condo: $1,400.00 net (approx.) per month.

e. Interest: amount to be confirmed but the OPGT’s affidavit stated it was approximately $3,000.00 per year in 2011. It was argued that the amount would be higher now. Based on prior tax returns, in 2008 the Father showed interest income of $4,146.78; 2009: $5,132.69; 2010: $3,731.90.

[173] The Mother’s evidence was that she did not have the 2011 affidavit of Elaine Rufiange until May 2021, as she was unable to obtain the file from her prior counsel until then.

[174] Regarding delay in pursing a Motion to Change in the support Order, the Mother asserted:

a. She believed the OPGT and the Father when they said the structured settlement was for the Father alone;

b. Both the OPGT (both during the litigation and until 2016 when the Father was declared "competent") and the Father refused to provide her with full disclosure of the Father 's income;

c. Though it was unwarranted, the Father and his family frequently (and continue to) called her a gold-digger. This behaviour intimidated her, and she did not want to risk L finding out that his father and his family thought of her that way; and

d. Though she knew they needed more support from the Father, she feared rocking the boat. Not only did the Father threaten to stop paying her the $600.00 per month, but she feared that if she brought a Motion to Change for support, the Father would respond with a claim for parenting time and/or contact with L. She did not want to risk L being involved in litigation as it would impact his anxiety.

[175] The Mother indicated that she understood that an expert she hired would need to review the Father's income tax returns to confirm his income. Since obtaining disclosure from the OPGT was so difficult during litigation, she did not see the purpose of spending the little money she had on an expert when they would not have been able to obtain the disclosure needed to determine the Father's income.

[176] Further, she did not see the purpose in commencing further litigation in an attempt to obtain disclosure and potentially change the support amount given the Father’s failure to provide full disclosure to her despite a Court Order requiring it. She felt her limited funds were better spent supporting L.

[177] The Mother relied on the December 20, 2010 letter from Ms. Rufiange to the Father, which was attached to the Father’s January 11, 2019 affidavit (page 42/385 trial record)to support her proposition that the letter advises of a significant monthly amount that had been set aside for L. She stated that the letter, and the fact that funds were specifically allocated for L, had never been shared with her before. That letter set out details of the Father’s settlement of the motor vehicle accident litigation, as follows:

The amount of coverage for general damages, i.e. pain and suffering, excess future care costs, future income loss etc. is $2,000,000.00.

There is also $1,000,000.00 coverage for attendance care costs, of which $300,000.00 had already been spent.

There is $1,000,000.00 coverage for medical and rehabilitation expenses, of which $700,000.00 had been spent by the time of the letter.

The litigation was settled for $4,025,000.00. This amount included the Father’s claim for pain and suffering, his income replacement, costs of his care and therapies. From that, after legal fees and disbursements, the net recovery is $3,179,162.10. Of that amount, $3,000,000.00 will be invested in a structured settlement that will prove an income stream for the Father’s lifetime. The remaining $179,162.10 will be used to settle the Father’s debts and deal with the Mother’s claims in the matrimonial litigation.

The $3,000,000.00 was divided into Part I ($1,000,000.00) and Part II ($2,000,000.00).

Part I provides lifetime monthly payments in the initial amount of $3,594.00, indexed at 2% per annum, compounded, and guaranteed for 15 years. The reason for the guarantee was to ensure any child support obligations are satisfied and to leave a legacy for L in the event that you pass away unexpectedly.

Part II provides lifetime monthly payments in the initial amount of $5,489.20, indexed at 2% per annum, compounded, as well as a monthly stream of payments in the starting amount of $4,416.80, indexed at 2% per annum, compounded, payable for 10 years only. There is no minimum guarantee period for the Part II income stream.

The additional stream in Part II allows you to receive a combined starting monthly income of $13,500.00 ($3,594.00 + $5,489.20 + $4,416.80). The rational for the increased income stream for the next 10 years was so that you would be able to afford continued therapies, although likely at a slower pace then you presently enjoy, as you continue your recovery.

So at the end of the 10-year period the additional income stream ceases, and only the two lifetime streams continue with combined payments totalling $11,072.37/month in year 11.

[emphasis added]

[178] The Mother’s evidence was that despite the disclosure requirement contained in the Parfett Order, when the OPGT were involved, this was not complied with on an annual basis. In 2016[2] the OPGT reviewed the outstanding annual retroactive adjustments of child support for L, and they noted that the child support payments for 2011, 2012 and 2013 were up to date. For 2014 though the Father’s income replacement benefits were noted to be grossed up to $25,265.00, his total income of his 2014 Notice of Assessment was $22,368.00, therefore his total annual gross income for 2014 was $47,633.00. His child support contribution should have been $426.30 per month. The support was adjusted for 2014 and 2016, but not 2015. The Mother asserted that income disclosure was not provided, nor was it ever fully provided by the Father, including proof of rental income for the condo, CPP pay stubs, investment income, and details regarding the income replacement benefits.

[179] The Mother’s affidavit also illustrated the aggressive tone in some of the Father’s emails to her.

June 8, 2021 affidavit

[180] The Mother submitted that the motion record in support of the 2011 Parfett Order would have been filed with the Court to have their settlement approved. It was part of the Court file, prepared by the Father’s lawyer, and served on the Mother. As such, there was no reason why the Father would not have had access to it. After realizing it would be beneficial to clarify what would have been presented to the Court at the time of settlement, she provided it through counsel on May 25, 2021.

[181] In response to the alleged credibility issues, there had not been questioning of parties. Further, regarding the quantum sought for child support and arrears, the exact amount sought ought not to have been a surprise to the Father. It was based on the disclosure received, though there continued to be disclosure issues.

[182] The Mother admitted to reacting to the Father inappropriately in an email due to being frustrated. The parties had a long, complex relationship history, which included the Father’s family calling her a “gold digger”, threatening to cut off support, refusing to provide income disclosure, and the Father’s public claims that she was alienating L from him. She submitted the Father has sustained a targeted and inexplicable rage toward her since he awoke from his coma. Further, on a regular basis, the Father had been rude or aggressive toward the Mother in his emails with her.

[183] The Mother submitted that the IRB’s of $389.28 per week were from the Father’s Statutory Accident Benefits Settlement, which was separate and apart from his tort litigation that resulted in a structured settlement, which was settled over a year later. Ms. Rufiange referenced these benefits separately in the motion record, and the OPGT continued to include this amount in the calculation of the Father’s income.

[184] The structured settlement was in two parts as per the McKellar report, attached to the Father’s May 31, 2021 affidavit. The amount the Father stated he was receiving was the amount from Part II, which has a “minimum guarantee” at year 9 of $11,510.31 per month. As per the settlement documents, he is also receiving Part I, which has a minimum guarantee at year 9 of $4,307.09 per month. Therefore, he was receiving at least $15,817.40 per month in tax-free income from the structured settlement.

[185] The structured settlement had not been in pay for 15 years as alleged by the Father. The settlement was approved in 2010. It had not even been 15 years since the Father’s accident. Part I provided a “minimum guarantee” of 15 years, therefore, the Father still has several more years of payments.

[186] The Mother acknowledged that the Order did not state the amount at Part I was intended for child support, however, the letter to the Father from Ms. Rufiange dated December 20, 2010 explaining the settlement indicated that the amount in Part I was specifically to provide for L’s support and to provide a legacy for L.

[187] The Mother pointed out the Father’s inconsistencies regarding the IRB’s, such as saying they had terminated, then indicated that the $389.28 had never been varied. The Father’s counsel indicated that the Father was in receipt of IRB, but it was not included in his financial statement. No proof of termination of benefits was ever provided.

August 30, 2021 affidavit

[188] This affidavit was relevant to the Case Management issue. Any relevant evidence was already addressed herein.

September 30, 2021 affidavit

[189] With the receipt of additional disclosure from the Father, the Mother noted that the Father purchased a second condo prior to the Motion to Change hearing but failed to disclose it prior. The Father also transferred tens of thousands of dollars to various women each year from 2016 onward, without providing explanations regarding same despite Orders to do so. Further, the Father hired a personal assistant, Genevieve Berthiaume though the Mother was unclear as to why one would be required. He pays Ms. Berthiaume $4,000.00 per month according to his financial statement. Ms. Berthiaume’s LinkedIn profile listed her as a “personal assistant for affluent disabled person”.

[190] The Mother sought reimbursement for the following s.7 expenses: (a) Riding lessons ($160.00 per month), equipment, competition fees; (b) boarding ($300.00 per month) and medical expenses for the therapy horse; (c) monthly pet insurance for the dog ($110.30 per month). The Mother indicated these were s.7 expenses given they were for L’s therapy and he needed them. The Mother submitted the responsibly of owning a horse, and putting the effort into preparing for competitions and competing with the horse had been exceptionally beneficial for L’s confident and self-esteem. It also calmed him and redirected his focus from his anxiety due to the physical and mental effort involved. L also benefitted from organized sports, such as soccer and piano, for which the Mother had great difficulty in getting the Father to pay. Frustratingly, the Father has offered to purchase an ATV for L, the approximate cost of which was $9,000.00 though he refused to pay for something L actually needed, such as riding lessons, therapy dog and horse.

[191] The Mother expressed frustration that the Father also has sent thousands of dollars to various random people, as shown in his bank statements, while she struggled to have the Father pay significantly less for L’s needs.

[192] While the Mother was unable to provide contemporaneous documentation regarding L’s anxiety and therapies, a letter from Dr. Kirtsman dated July 23, 2018 was produced, indicating that L has sever anxiety and horseback riding therapy was helpful for him, and continuation was strongly recommended. Further documentation regarding L’s mental health were also provided for the Court’s consideration.

October 8, 2021 affidavit

[193] The Mother submitted that the motion record in support of the Parfett Order was served and filed after she consented to the settlement, so she could not be certain if she had those documents or information prior.

[194] Thought it was suggested that the Mother’s counsel proposed the Father’s income – though there was no evidence of this. Further, her recollection was that Ms. Rufiange’s position was that she was not entitled to any of the structured settlement.

[195] The Mother submitted that the reports (Soberman Report) and the breakdown by the Father were for settlement discussions, yet emails and other documents filed by the Father, including the affidavit of Ms. Rufiange, all indicate the settlement was not broken down into different heads of damage and was a global settlement.

[196] The Father’s health has significantly improved since 2011, but he suggested in his affidavit that he has the same medical expenses as he did in 2011. This was contrary to his response to request to admit, where he agreed the medical expenses decreased significantly since 2011. There was no proof of any medical expenses from 2011 to present. Further, in an email, the Father commented on how much he had improved since the accident.

[197] A review of the Father’s disclosed bank statements showed that from 2016 to June 2021, he sent over $200,000.00 to Meghan. Despite indicating that in March 2021 that he was trying to get the money back, he continued to send her money until June 2021, and presumably continues to do so.

Trial evidence

[198] The Mother testified that she lives on a hobby farm.

[199] In 2011, she agreed to much lower child support than what she was seeking. The Parfett Order had an option to review the Father’s income with an expert. She did not have the money to hire an expert.

[200] The Mother explained that she did not bring a motion to change before this Response for several reasons, such as the Father being under the care of the OPGT until 2016. The Mother was also worried that if she brought the matter back to Court, the status quo would be rocked, and she wanted to prioritize, and not jeopardize, L’s mental health.

[201] Her evidence was that it was very difficult to get any information from the OPGT. They made it clear to her that the Father was their client, and they would only answer to him. Any requests made by her were not given. She indicated that the team leader wanted everything in writing, and the Mother resided 14 kilometres from the post office, therefore she was never able to obtain disclosure. On one occasion Mr. Benoit Gauthier was able to provide her the amount the Father was earning.

[202] After the Father gained his competency, she told him what she earned, and asked him for what he was earning.

[203] When reflecting on the Parfett Order, her evidence was that the Father’s lawyer, Ms. Rufiange, made it clear that they were prepared to go to trial. At the time, the Mother had been collecting welfare due to the debts after separation, and she did not have the money to go to trial. She stated, “we suspected they had insider information”, suggesting Ms. Rufiange would have been aware of what was happening with the Father’s civil file. In cross-examination, the Mother confirmed that her lawyer had prepared the Divorcemate calculations, attached to the motion record. Her evidence was that it was prepared by her lawyer as the OPGT would not do it, as disclosure was not their “forté”. The Mother confirmed her lawyer had consulted her regarding the Divorcemate calculation. All the figures however came from Ms. Rufiange. When asked about what the Father earned in 2004 and 2005, the Mother did not agree with the income figures, that the Father under-reported his income for those years. When asked if she ever challenged the figures used, she indicated she “believed she raised it by saying his accounts were frozen” and then stated that she asked the OPGT for income disclosure, knowing that his income would change slightly year to year. The Mother however was not able to produce any written record to confirm her requests.

[204] The Mother did not feel she had all the disclosure, stating that “they never provided disclosure”. Her evidence was that Ms. Rufiange may have sent something to her counsel, but she never saw the documents about the personal injury settlement. Those would have been kept between the Father and the OPGT. She recounted she had a hard time obtaining information from the OPGT such as information regarding the joint account or selling the house.

[205] In cross-examination, the Mother testified she received her file from her prior counsel in the last two years. She denied any recollection of having knowledge of the OPGT motion record until recently. She nevertheless agreed it was possible that her lawyer had the motion record.

[206] The Mother’s evidence was she did not receive disclosure from the OPGT or the Father from 2011 to present. She had to ask, and despite that she is still missing some statements from the Father’s line of credit and bank statements. It was a challenge throughout that the Father did not want to share the information with her.

[207] Given she was involved in ligation now due to the Father’s claims, given she had to spend money defending herself, she figured she would bring the support claim at the same time as there would be a disruption to L anyway.

[208] She had not seen the December 20, 2010 letter from Mr. Rufiange to the Father until this litigation. She noted that it was dated 2010 despite the matter settling in 2011. She was surprised by the letter, which she noted discussed a global settlement. She remembered discussing that with the Father at the time, that he may have been entitled to far more, but received the maximum out of the insurance. The Mother was also surprised that the letter referenced L, as a portion was to ensure child support obligations were satisfied. She recognized that there was a duty to pay support, but thought it was not something that the OPGT would want to ensure.

[209] Regarding the mortgage insurance on their previous property, while she knew it had existed, she did not know it was transferred to the Father’s property. She had wanted to keep the Dunvegan property, despite it being quite run down. She knew the mortgage insurance would be paid monthly, but for some reason the OPGT could not use it as a payout. They said they could not maintain a property where their client was not residing. The Mother and L were told they had to move and sell the property. She was the one who put the vast majority of the money into the house, so she was shocked when they took the mortgage insurance and put it on the Father’s condo, as in doing so they prioritized the Father over her and L. She had truly believed that when they sold the house the money was gone.

[210] The Mother’ evidence regarding her income was the following (as per Line 150 or 15,000 of NOA’s where available, or ITR if not, from Exhibit 25):

2011: $1,439.00

2012: $1,254.00

2013: $376.00

2014: $19,924.00

2015: $9,325.00

2016: $17,631.00

2017: $2,886.00

2018: $8,993.00

2019: $11,800.00

2020: $11,789.00

[211] L’s CPP benefits from 2018 to 2020 were the following (Exhibit 26):

2018: $2,935.68

2019: $3,003.24

2020: $3,060.36

[212] The Mother testified she worked 10 hours per week. Her contract ends in March 2022. She does highly specialized work. They have no savings. To finance the litigation, they took out a line of credit against the house. They risk losing the house, which was purchased in the same area as the home she and the Father used to own. L still has the same friends as before. There are animals attached to the house, which was of great concern should they lose the home.

[213] Regarding L’s needs, he has a horse, a dog, a tablet and things to keep his mind occupied. He seemed to have a good way of managing his anxiety. He was stable and doing well. The horse and lessons, the music and soccer all help him cope so he does not shut down. Prior to the therapy horse, L picked a lot at his skin. Following horseback riding, he was always calmer and more grounded. The current horse was a school horse and a rescue, which was safe for children. There was a go-fund-me to raise money for the horse. Because horses are pack animals, so they chose to board it at a private facility. The horse’s arthritis is such that it needs to be euthanized before Christmas. She would like to get another horse. The Mother received hand-written receipts for minimal amounts for the boarding. L is quite gifted at horseback riding and is going into competitive lessons. It would be ideal for him to have his own horse where he could spend days training the horse. This would give L the satisfaction of knowing he did all of the work, rather than sharing a school horse. The cost of a horse can be between $5,000.00 to $7,500.00, but the type of horse they are locking for, a project horse, is closer to the lower range.

[214] L’s dog is of great comfort to him, particularly in quelling his fear of being taken from the house. When upset, as a worry gesture, he rubs her fur. She gave him a lot of comfort during Covid. They are secure together. The Mother was asking for contribution toward the pet insurance as of March 1, 2021 so that if anything were to happen to the dog, there would be financial assistance through the insurance. In cross-examination, the Mother confirmed that she spent approximately $1,200.00 euros for L’s dog as she wanted a good watchdog for him, with a stable temperament, and a dog of a certain size.

[215] Other s.7 expenses included piano lessons and riding lesson. As set out in Schedule C of the Mother’s financial statement dated September 23, 2021, her income for s.7 expenses is $11,789.91. The breakdown of L’s s.7 expenses were the following, averaging $1,020.88 per month:

Therapy Horse $4,160 per year;

Therapy Riding Lessons and shows, competitive level $2,346.59 per year;

Riding Equipment (boots, helmet) $300.00 per year;

Competitive soccer $500.00 per year;

Piano lessons $1,020.00 per year;

Non-covered medication (ex. Nexium, etc) $924.00 per year;

Emotional support dog (Idalia)* $3,000.00 per year;

• At trial the Mother was only seeking that the Father pay for the dog’s insurance plan.

[216] It was the Mother’s evidence that while there was no specific number for the Father’s contributions for s.7 expenses in the Parfett Order, the OPGT had told her, and paid for 90% of the child’s s.7 expenses.

[217] The Mother’s evidence was they lived paycheck to paycheck, borrowing from the line of credit to make ends meet.

[218] It was put to the Mother in cross-examination that she had the motion record from the OPGT, and she agreed she had a vague recollection of the affidavit by Ms. Susan Brown, who was the team leader of the OPGT. When asked about Ms. Brown’s affidavit at paragraph 3, where it stated, “I have carefully reviewed the proposed settlement, by which here is child support based on income replacement and not the full structured settlement amount…”, the Mother answered was that Ms. Rufiange said they would never win if ever they challenged that amount. She believed that was the amount from a “trusted government body”, she believed they knew the law, and that was the income replacement amount.

[219] The Mother’s evidence in cross-examination confirmed at the time of the Parfett Order, she was represented by a lawyer, she signed the Minutes of Settlement and the amount listed as income in the Order matched that of the Divorcemate document. She confirmed knowing she had the ability to have an expert confirm the Father’s income calculation, but never hired an expert. She explained there were several reasons she never hired an expert, such as the cost and the lack of disclosure. When asked why she did not hire an expert for this Motion to Change, she did not think it was necessary as it was a global settlement, not income replacement, and again stated that she did not have full disclosure. Confirmation of missing personal line of credit statements was found in the Father’s materials, at B1472, which identified missing statements from March 30, 2017 to 2018.

[220] The Mother testified that there was no expectation that the Father would ever regain competency, and as such the OPGT had her withdraw from the Family Responsibility Office. She was not aware until a week prior to trial that she could re-file with FRO.

[221] When questioned about the voluntary increase of child support by the Father from $336.00 per month to $600.00 per month, the Mother had actually asked the Father to pay $750.00, but he refused, but accepted to pay 50% of the s.7 expenses.

[222] When it was suggested that the Father had been cooperative in the past, and the Mother did not have to go to Court to have support increased, her evidence was that he had given her more than enough reasons to go back to Court, but her first priority was L. She testified that now that she knew about the Father’s spending habits, it would be negligent of her not to try to advocate for L having the best life he can have. When asked how she believed the Father would come up with over $200,000.00 in retroactive support, her evidence was that he found money to pay Meghan, it would be up to him to find the money. She suggested he could sell the condo in Ottawa, and that he had been very generous with others and able to come up with money when she had to wait. While she was sympathetic to the Father’s condition, she nevertheless must advocate for their son.

[223] The Mother’s evidence was she received the following child support from the Father, up to October 2021:

2016: $4,796.20

2017: $5,710.00

2018: $6,600.00

2019: $6,608.00

2020: $7,200.00

2021: $7,856.00

[224] She submitted that the additional $500.00 paid by the Father in 2016 due to the bounced cheque should not be credited as support.

The motion record filed in support of the Parfett Order

[225] Attached to the Mother’s affidavit dated May 28, 2021 and filed on consent of both parties at trial as Exhibit 6, subject to the Court’s determination of the appropriate weight it should be given, was the motion record filed in support of the Consent Final Order of Justice Parfett. That motion record contained an affidavit from Ms. Elaine F. Rufiange, from the OPGT; affidavit of Litigation Guardian Susan Brown, financial statement of both parties, the Minutes of Settlement and M.K. v R.A.S., 2004 BCSC 1798, [2004] B.C.J. No. 2930.

[226] It was noteworthy that neither Ms. Rufiange nor Ms. Susan Brown were called to testify by either party, therefore they could not be cross-examined regarding the contents of their affidavits. They apparently no longer work for the OPGT. Further, Jamie Pollack, who was hired by the OPGT to represent the Father on the civil file was also not called to testify at this trial.

[227] While it would have been helpful to understand how the Final Order came to be, that Order is not under appeal. As such, I am of the view that a review of these materials are both relevant and necessary to give context to the Parfett Order, particularly as the motion record was filed to obtain the Court’s approval of the Final Order given the Father was a special party. Additionally, when the matter was listed to be heard as a motion, prior to my directing it to trial, it was the Mother who filed and wished to rely on the motion record, whereas at trial, it was the Father who wished to rely on the motion record.

[228] The Divorcemate calculation attached to the motion record was prepared by the Mother’s then lawyer.

Affidavit of Elaine Rufiange (B64)

[229] The relevant portions from the affidavit of Ms. Rufiange regarding the outstanding issue of support were the following:

19. The [Father] commenced litigation in connection to the MVA in 2007. Attached [to the affidavit] is a copy of the Statement of Claim issued in connection with this litigation.

20. In preparation for the MVA mediation, the Public Guardian and Trustee’s counsel had present value calculations done for various components of the [Father’s] claim. The net present value of his income replacement claim was $365,736.00. Attached [to the affidavit] and marked as Exhibit “F” is a true copy of the report prepared by Soberman LLP dated September 28, 2010 with the net present value calculations of the [Father]’s income replacement claim. (“Soberman Report”).

21. Also in preparation of the MVA mediation, counsel had a future care costs report prepared by Jodi Harendorf of Catastrophic Injury Management dated February 5, 2010. Attached [to the affidavit] and marked as Exhibit “G” is a true copy of the said report.

22. A calculation of the net present value of the [Father]’s future care costs (medical, rehabilitation, attendance care, transportation) was also produced by Soberman LLP in a report dated September 27, 2010. These calculations indicate that the net present value of the future care costs is $11,193,575.00. Attached [to the affidavit] and marked as Exhibit “H” is a true copy of the said report.

23. The MVA litigation settled in November 2010 for a global amount of $4,025.000.00. The Settlement amount was not broken down by heads of damages. The net recovery to the [Father] after payment of the legal fees and disbursements was $3,179,162.10. Of that, $3,000,000.00 was invested in a structured settlement. The structured settlement pays $13,500.00 per month and the [Father’s] accommodation, therapy and transportation costs virtually exhaust his monthly income. Attached [to the affidavit] and marked as Exhibit “I” is a true copy of the Order of the Honourable Justice Frank dated May 4, 2001 [marked at trial as Exhibit 18- where the date of the Order could be understood to be either May 4, 2011 or May 11, 2011, Dean Grette by his Litigation Guardian, the Public Guardian and Trustee and L’Union Canadienne Compagnie D’Assurances, enclosing the McKellar structured settlement Inc. Schedule “A”] approving the settlement and attaching a copy of the structured settlement payments.

24. At the time of the accident, the [Father] was self-employed. He carried no private disability insurance so that after the accident, he had no income at all.

25. The accident benefits insurer declined to pay any income replacement benefits or even non-earner benefits until February 14, 2008.

26. The [Father] however disputed the amount of weekly income replacement benefits as calculated by the accident benefits insurer. This issue went through an unsuccessful mediation and was settled on the eve of arbitration. The accident benefits insurer grudgingly settled by agreeing that the [Father’s] income replacement, calculated based on his income tax returns and financial statements from his business, was $389.28 per week or $20,242.56 per year. Attached [to the affidavit] and marked as Exhibit “J” is a true copy of the Order dated September 17, 2009 approving the settlement of the arbitration and establishing the [Father’s] income replacement benefits at $389.28 per week. [Marked as Exhibit 19 at trial, where Justice Stinton’s Order reflects that the Father will receive weekly income replacement benefits at the rate of $389.28 per week, pursuant to sections 4 and 5 of the Statutory Accident Benefits Schedule (“SABS”).]

27. As of August 1, 2009, the [Father] has been paying child support of $174.00/ month based on this increased benefit. Any retroactive child support based on the initial award of income replacement and this higher amount has also been paid by the [Father].

28. The [Father] now receives CPP disability benefits in the amount of $676.17. Until settlement of the MVA litigation, these benefits were subject to claw back by the accident benefits insurer.

29. In [Ms. Rufiange’s] opinion, the case law is clear that only that part of a structured settlement attributable to income replacement is considered income for the calculation of child support. The case of K.(M.) v. S.(R.A.) 2004 CarswellBCC 3377 involved a father suffering from a catastrophic brain injury as a result of a MVA. When considering how to treat the father’s structured settement for child support purposes, Justice Wedge said that:

“While the income stream from an annuity put in place to facilitate a structured settlement for non-pecuniary loss and cost of future care may on first consideration appear to be income, in my view, it is not “income” within the meaning of the Child Support Guidelines. It is not “income” determined by using the sources of income described in the T1 General form used by Revenue Canada, as stipulated by s.16 of the Guidelines.”

31. Divorcemate calculations show the annual income is as follows:

Income Replacement $25,265.00 (grossed up value)

CPP disability benefits $8,114.00

Interest $3,000.00 (averaged amount)

Total $36,379.00

Child support on this amount, according to the guidelines is $336.00 per month. Attached [to the affidavit] and marked as Exhibit “K” is a true copy of the said calculations.

33. Given the severity of the [Father’s] injuries, he is not able to obtain life insurance at anything approaching a reasonable rate. Part I of the structured settlement has a 15-year guarantee period which will ensure that funds are available for child support in the event the [Father] passes away before this obligation terminates.

34. The proposed settlement provides that the [Father] will pay his proportionate share of section 7 expenses. While the [Mother] shows an annual income of $12,4555.88 in her financial statement and should bear a greater portion of these costs, for the purposes of settlement, I am recommending this payment as [L] did receive a benefit as it assisted him with his separation anxiety.

35. The proposed settlement provides for no spousal support. The [Mother] has an obligation to contribute to her own support and she has not done so. She has not sought employment. She has provided information to the effect that she is disabled yet she has not applied for disability benefits to which she would be entitled.

36. The parties are joint owners of the property at 1885 Blythe Rd. …. There is disability insurance attached to the mortgage.

37. And I make this affidavit in support of a motion to approve the settlement of this proceeding on behalf of [the Father], a special party, pursuant to Rule 18(12) of the Family Law Rules and Rule 7.08 of the Rules of Civil Procedure, and for no other improper purpose.

Affidavit of Susan Brown (B240)

[230] Also contained in the motion record was the affidavit of Ms. Susan Brown, who was a Team Leader, Guardianship Services for the Office of the Public Guardian and Trustee for the Province of Ontario. To this end, Ms. Brown had the delegated authority of the OPGT to make decisions in the family Court proceedings on behalf of the Father. The relevant part of her affidavit was:

3. I have carefully reviewed the proposed settlement, by which there is child support based on income replacement and not the full structured amount….

Evidence of Genevieve Berthiaume

[231] Ms. Berthiaume was first hired by the Father to be an occasional driver in 2016. She drove him around in 2016 and 2017 approximately once per month or two. In 2018, she was employed by the Father more frequently, to assist in administrative tasks such as printing documents. In 2019, while still part time, she assisted the Father more frequently. Since approximately June 2021 she has been working for him full time.

[232] At the beginning Ms. Berthiaume was paid by the day based on the task. For instance, she was paid $500.00 for a round-trip drive to Ottawa. She believed she earned less than $10,000 in 2019 and 2020 through employment by the Father.

[233] In 2021, the Father purchased a condo in Lachine, and his cleaning lady retired. Ms. Berthiaume was asked to replace her. At that time, Ms. Berthiaume assisted the Father in packing boxes and helped with the move, and then assisted in the legal aspect. Though she did not count the hours worked, since June 2021 she estimated it was approximately 25 to 50 hours per week, full time employment, and was paid a flat rate of $1,000.00 per week. This income included the cost of gas / transportation.

[234] As at the time of trial, Ms. Berthiaume explained that her usual routine was to drive the Father three times per week to the gym (Monday, Wednesday and Friday), after which she ran errands, got groceries for him, cleaned the house, etc. The other two days (Tuesday and Thursday) she took him to other appointments. The tasks vary every week. Ms. Berthiaume had been assisting with the legal aspect as there were a lot of papers to be filed, signed, sent to counsel, etc. For instance, in July 2021, the Father was asked to provide financial disclosure. Ms. Berthiaume built a booklet of the disclosure and saved it on a USB key. Ms. Berthiaume assisted with other tasks such as helping the Father with the mortgage paperwork for his new condo, and daily basic tasks such as preparing his coffee, cutting his nails, carrying things for him, shaving his head or trim his beard. Occasionally, due to the Father’s difficulty in speaking, she would facilitate communications for him, with him by her side instructing/ authorizing her. She did not assist with the preparation of the Father’s taxes, for which he has an accountant. She did assist in preparing the Father’s exhibit book, such as having him look over and approve the documents, which she would then scan and add it to the document brief. For example, marked as Exhibit 3, the Court had evidence of the mortgage value of the Father’s condo: $449,540.00, five-year mortgage, with payments of $1,945.06 per month with the first payment as of June 27, 2021.

[235] Ms. Berthiaume’s prior education (Bachelor’s degree in actuarial mathematics) and work history involved working in finances, were unrelated to being a personal assistant or PSW. She confirmed that she has no training as a PSW. She testified that eventually she would find other work, but she would love to have more clients such as the Father as she felt she could help them.

[236] Ms. Berthiaume does not live with the Father, and only provides daytime care. She does not cook all the Father’s meals for him, he had a meal service on Fridays, and some other times he orders from Uber Eats.

[237] There was no employment contract between she and the Father. There was a letter for service retainer, which permitted her to obtain the Covid-19 vaccine. She set her rate for the services, which was $1000.00 per week, for which she will be charging the Father HST.

[238] Ms. Berthiaume confirmed the Father’s condo had one bedroom and one bathroom.

[239] When questioned about her LinkedIn profile, wherein she stated her title to be a “personal assistant for affluent disabled person”, her evidence was the word affluent did not come from the Father, but from a friend of hers who suggested the word, meaning wealthy, for her resume. She testified she did not see the Father as being “super rich” but agreed she decided to use the world affluent. She later clarified that the Father lived a very simple life, he rarely spent money on himself, did not buy expensive things and wore old clothing full of holes.

[240] Ms. Berthiaume’s LinkedIn profile stated that she started working for the Father in 2017, rather than her prior evidence of a 2016 start date. As an explanation, until December 2017 she had been working elsewhere full-time. There were other jobs she had not listed on her profile, but she was not looking to be hired for those other types of jobs, which was why they were not listed.

[241] Ms. Berthiaume confirmed that from 2016 to June 2021, she worked as a driver, but also helped in other ways without breaking down the details in her LinkedIn profile. As she explained, if a Human Resources department were to contact her, she would provide further details. She did not see the relevance of every detail, and the profile was not an entire reflection of her work experience.

Findings of Fact

[242] The Mother stated she never received full financial disclosure regarding the Father’s settlement prior to consenting to the Final Order. I find, on a balance, that the motion record would have been served on her counsel, and therefore the Mother would have had access to the evidence prior to the Order being signed. I find that the Divorcemate calculation which formed part of the motion record was created by the Mother’s counsel and was reviewed with the Mother. That same motion record was produced in this Motion to Change by the Mother.

[243] I find it is more probable than not that the quantum of child support as set out in the Final Order contemplated the settlement agreements/ Court Orders as found in the motion record.

[244] I find that Justice Parfett, in making the Final Order, would have reflected on the terms of the Order, and reviewed the entire motion record given the Father was a special party. I am persuaded that she would have had turned her mind not only to the Father’s special status, but also that of the child, and determined the terms were appropriate prior to signing the Final Order. Additionally, the Order was made on consent of both parties. I do not sit in appeal of that Order. It is deemed to be correct.

[245] The Parfett Order provided the Mother with the opportunity to have an expert of her choice confirm the Father’s income calculation for child support purposes. She chose not to use that option.

[246] The Father was represented by the OPGT until 2016. The OPGT made their last payment of child support on the Father’s behalf on May 19, 2016.

[247] Both the Mother and Father attested to the difficulties in obtaining information, financial or otherwise, from the OPGT. The prior lawyer on the file is no longer employed by the OPGT.

[248] The Mother expressed that the OPGT was not cooperative with her requests for financial disclosure. She stated: “I believe there could be significant arrears in child support owing for L, however the impenetrable financial black box that the OPGT represented in 2011, combined with the complexities of a multi-million dollar structured insurance settlement as compared to normal employment income, meant that even income tax disclosure (which was resisted for many years until the launching of this present motion) would still not shed much light on the situation.” (see para. 47, affidavit of the Mother dated January 27, 2020).

[249] Despite the strong criticism of the OPGT, neither party called the OPGT. The Father did not have competency from 2011 to 2016 therefore he cannot shed light on the events from that time. The OPGT did not have an opportunity to defend themselves or provide clarity regarding the allegations. In consideration of all the evidence, I am unable to determine what disclosure was, or was not, provided by the OPGT.

[250] In 2016, the Father was found to be competent.

[251] Following the Father becoming competent, I find he failed to provide income disclosure to the Mother, as required by the Parfett Order.

[252] The Father also failed to comply with disclosure obligations imposed by this Court in the context of the Motion to Change, such as missing statements from his personal line of credit. He did however finally provide his Income Tax Returns and/or Notices of Assessment.

[253] It was not disputed that the Mother’s income was limited, nor was it argued that income should be imputed to her.

[254] It was uncontested that prior to the MVA, the Father had incurred significant debt, which was taken care of by the OPGT in 2011.

[255] The Mother acknowledged receipt of an arrears payment from the Father of $3,500.00 stemming from non-payment of support in 2016 after he became competent.

[256] In 2016, the Father voluntarily increased his child support payments to the Mother from $336.00 per month to $600.00 per month. I find this was a good faith gesture on the Father’s part.

[257] However, despite the Parfett Order indicating that s.7 expenses were to be paid proportionately by the parties, after 2016 the Father insisted on paying 50% of the expenses. He also refused to contribute toward some reasonable expenses, such as for a new computer for L, but was generous in other ways to benefit L.

[258] I place no weight on hearsay statements by either party.

[259] I am of the view that the motion record provides context to the Parfett Order.

[260] I find that the “income replacement” amount used in the Divorcemate calculation and paragraph 31 of Ms. Rufiange’s affidavit was based on the SABS income only. The parties did not use any income from the Father’s structured settlement.

[261] I accept the income amounts both parties list in their Income Tax Returns and/or Notices of Assessment, which were also accepted by the Canada Revenue Agency.

[262] I find, subject to his obligation to pay child support, the Father is entitled to spend his money as he sees fit. This includes an ability to pay for companionship.

Variation of Child Support

Legal framework

[263] Section 31 Family Law Act (FLA) imposes an obligation on every parent to provide support for their child, to the extent that parent is capable.

[264] Section 37(2.1) FLA sets out that if the Court is satisfied that there has been a change in circumstances within the meaning of the CSG or that evidence not available on the previous hearing has become available, the Court may:

(a) discharge, vary or suspend a term of the Order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other Order for the support of a child that the Court could make on an application under section 33. 1997, c. 20, s. 6.

[265] A variation Order for child support shall be in accordance with the CSG (s.37(2.2) FLA).

[266] Section 14 CSG states that for the purposes of subsection 37 (2.2) of the FLA, any change in circumstances that would result in a different Order for the support of a child or any provision thereof constitutes a change of circumstances that gives rise to the making of a variation Order.

[267] Section 3(1) CSG stipulates that unless otherwise provided under these guidelines, the amount of an Order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the Order relates and the income of the parent or spouse against whom the Order is sought; and

(b) the amount, if any, determined under section 7. O. Reg. 391/97, s. 3 (1).

[268] Section 21(1) CSG imposes an obligation on the Applicant and Respondent to provide financial information to the other. Section 23 CSG permits the Court to draw an adverse inference from the failure of the parent to comply with s. 21(1) and to impute an appropriate amount of income to that parent. Section 24 CSG provides four possible sanctions when a parent fails to comply with an Order to provide the Court with documents. Section 25 CSG allows a parent to request, in writing, disclosure of income information. The disclosure request must be honoured within 30 days after receipt, failing which there may be repercussions.

[269] Notwithstanding the broad powers available to the Court, a child support variation proceeding is not an appeal of the original Order. The Court hearing the case must assume that the existing Order accurately addressed the financial needs of the child and took into consideration the appropriate legal considerations. The correctness of the previous Order should not be reviewed in the variation proceeding: see Willick v. Willick, 1994 28 (SCC) and Gray v. Rizzi, 2016 ONCA 152: Morden v. Kelly, 2019 ONSC 4620, 2019 ONSC 4620, at para. 46.

[270] In support of the Parfett Order, Divorcemate calculations were submitted in the motion record (A1146). In that calculation, the income inputs submitted for the Father were CPP disability benefit of $8,114.00; interest and other investment income of $3,000.00, and other non-taxable income (auto gross up) $20,242.00, totalling an income of $36,379.00. At paragraph 9 of the Parfett Order, the Father was Ordered to pay support based on his anticipated income of $36,379.00, “of which his income replacement benefits have been grossed up as it is non-taxable income.” At that time, the Father was incapable, and his interests were represented by the OPGT.

[271] The Mother argued that that the Father did not provide full disclosure at the time of the 2011 Order, asserting, amongst other things, that his investment income was misrepresented, that funds were specifically allocated for L, that there was no information regarding the settlements, that the OPGT used the income replacement benefits from the SABS settlement, that the Soberman reports were not provided to the Mother prior to the family law settlement, and that Ms. Rufiange’s affidavit and 2010 letter to the Father indicate the structured settlement was a global settlement, with no breakdown of the heads of relief, etc. The Mother raised these points to argue that the above evidence was not available at the first hearing, warranting a review of the Order.

[272] Respectfully, I do not sit in appeal of the consent Order. There was no evidence of an appeal having been brought. At the time of the Parfett Order, both the Mother and Father were represented by counsel. Neither of those counsel was called to testify at trial.

[273] As I have found above, the motion record would have been served on the Mother’s counsel, and therefore the Mother would have had access to the evidence prior to the signing of the Parfett Final Order.

[274] Further, if not satisfied with the evidence upon which Justice Parfett made the Final Order, the Mother had to ability to have an expert confirm the Father’s income calculation. No such expert was called at this trial to assist the Court in determining the Father’s income. I am nevertheless mindful that the Mother cited several reasons, including cost and lack of disclosure by the Father.

[275] Having considered the evidence, I am of the view that there has been a change in circumstance following the Parfett Order being issued based on the Father regaining financial competency in 2016 and was no longer under the auspices of the OPGT.

Start date retroactive child support

[276] The Mother sought an Order of retroactive support from October 2011 to present. If the Order were granted, the total amount payable by the Father would be $269,327.80. The Mother was not seeking any s.7 arrears.

[277] The Father suggested that support should only be retroactive to January 1, 2020 as the Mother’s Response was issued in that month. The Father argued he should have a right to make full answer and defence to support issues, at the very least from 2011 to 2016 when he was represented by the OPGT. He also submitted that he had no notice from 2016 to 2020 of these claims, and therefore it should not succeed prior to 2020.

[278] Colucci v. Colucci, 2021 SCC 24, is the leading case which addressed child support and retroactive applications for support. The Court offered the following observations:

38 The majority in D.B.S. [v. S.R.G.; 2006 SCC 37] found that a retroactive increase in support will not always be appropriate (para. 95). The Court must exercise its discretion to determine whether a retroactive award should be given at all, and how far back it should extend. Justice Bastarache set out four factors to guide the Courts' discretion: (a) the recipient's delay in seeking retroactive support; (b) the payor's conduct; (c) the child's circumstances; and (d) hardship entailed by a retroactive award. These factors were recently considered by this Court in Michel v. Graydon, 2020 SCC 24 (para. 29, per Brown J.; paras. 111-26, per Martin J.).

39 Where a retroactive increase in child support is appropriate, the majority in D.B.S. suggested that the date of retroactivity should generally be the date of "effective notice" (para. 118). "Effective notice" in this context was said to simply require the recipient to "broac[h]" the subject of an increase in child support (para. 121). The majority of the Court noted, however, that recipients should be encouraged to move discussions forward after giving effective notice. To that end, the majority concluded that retroactive awards should generally extend no further than three years before the date of formal notice. This is known as the "three-year rule", although it is a presumption only.

40 In a significant caveat to these general rules, Justice Bastarache added that the date of the payor's increase in income may sometimes be a more appropriate date of retroactivity, particularly where the payor engages in "blameworthy conduct" (para. 124). Such conduct includes the payor's failure to disclose material increases in income. At para. 124, Bastarache J. said:

Not disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of child support payable — is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments.

43 In practice, then, the date of retroactivity is frequently adjusted to align with the date of the material increase in income, despite the "general rule" of varying to the date of effective notice in D.B.S. (para. 118). It would be "untenable to suggest that a parent who fails to provide financial disclosure can assume that the amount being provided is adequate because the recipient parent has not brought a Court application". Further, even where the payor has disclosed increases in income, the D.B.S. factors may support extending a retroactive increase of support back to the time of the change in income.

55 In building a framework for the variation of child support and the rescission of arrears, judicial discretion must be structured to safeguard the child's interest in receiving the appropriate amount of support to which they are entitled. Alongside this paramount interest, there must be a fair balancing of certainty and flexibility to reach a just result in light of fluctuations in payor income and the particular circumstances of each case. In addition, the framework under s. 17 must promote the timely disclosure of accurate information, which in turn encourages equal bargaining and fair settlements, as the payor parent "holds the cards" when it comes to child support (Michel, at para. 32, per Brown J.). Above all, "the ultimate goal must be to ensure that children benefit from the support they are owed at the time when they are owed it. Any incentives for payor parents to be deficient in meeting their obligations should be eliminated" (D.B.S., at para. 4). Payors should not be better off from a legal standpoint if they do not pay the child support the law says they owe. Nor should payors receive any sort of benefit or advantage from failing to disclose their real financial situation or providing disclosure on the eve of the hearing.

74 Thus, where a past material change in the payor's income is established, the amount set out in the child support Order no longer reflects the content of the payor's legal obligation to pay support in line with the table amounts. The only question is what remedy flows from this legal fact. In the decrease context, the presumption of varying back to the date of effective notice, up to three years before formal notice, assists the Court in answering this question. It will still be true under this approach that not all applications will lead to retroactive variations, but the focus will be on whether a material change in circumstances has been proven and the date to which a retroactive variation should extend.

77 On an application for a retroactive increase, the recipient seeks the flexibility of a retroactive award to capture the payor's increased income and secure payment of child support in the correct amount. It is the payor who has some interest in the certainty and predictability supplied by an existing Court Order or agreement (D.B.S., at para. 63). However, this certainty interest is heavily qualified by the Guidelines-era principle that more income means more support. The payor cannot reasonably expect their child support obligations to remain static in the face of material increases in income. Given the structure of the Guidelines, the only real "certainty" in the face of fluctuating income is that the payor is responsible for paying the table amount based on actual income. Further, a payor who has fallen into arrears cannot resist a retroactive increase based on their interest in certainty, as the payor cannot claim they relied on the Order in arranging their affairs (Gray, at para. 51; 2019 ONSC 4720).

[279] Further, the Court set out the following framework that should be applied for retroactive applications to increase support in paragraph 114 of Colucci as follows:

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the Court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple Court applications for disclosure before a Court has these powers.

b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d) The Court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. [S.(D.B.) v. G.(S.R.), 2006 SCC 37] factors continue to guide this exercise of discretion, as described in Michel [Michel v. Graydon, 2020 SCC 24] If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e) Once the Court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[280] As noted in Colucci, the overall decision is a flexible and discretionary one. Once a past material change in income is established, a presumption is triggered in favour of retroactively increasing support to a certain date, with the D.B.S. factors guiding the Court’s exercise of discretion in deciding whether to depart from that date: Colucci, supra, at paras. 5 and 6.

[281] Because a child support Order is tied to payor income, and income tends to fluctuate, a child support Order reflects a snapshot in time and is never final: Colucci, at para. 28. The wording of s.17 DA, and similarly, s.37(2) FLA, confers a wide discretion to the judge who “may”, but is not required to, vary, rescind, or suspend an Order in the future, past, or both: Colucci, at para. 29.

[282] In Michel v. Graydon, supra, the Court found that the payor Father had understated his income by approximately $6,000.00 from which formed the basis of a consent Order in 2001. Thereafter, except for one year, his actual income continued to exceed the disclosed income until the child support obligation was terminated in 2012. It was not until 2015 that the Mother sought to vary child support to 2001, based on the Father’s actual income. The Court found the Mother’s delay to be reasonable, that the Father had engaged in blameworthy conduct by failing to accurately disclosure his income, that the child suffered as a result, and that the Father would not experience hardship for a retroactive award. The Father was Ordered to pay $23,000.00 of retroactive child support.

[283] Citing D.B.S., the Supreme Court of Canada in Michel endorsed the following important principles governing Order for child support, including retroactive child support:

• Child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of the relationship of the child's parents (para. 38);

• Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together (para. 38);

• The child support owed will vary based upon the income of the payor parent, and is not confined to furnishing the "necessities of life" (paras. 38-45);

• Retroactive awards are not truly "retroactive", since they merely hold payors to the legal obligation they always had to pay support commensurate with their income (para. 2);

• Retroactive awards are not confined to "exceptional circumstances" or "rare cases" (para. 5); and

• In determining whether to make a retroactive award, the payor parent's interest in certainty in his/her obligations must be balanced with the need for "fairness and ... flexibility". A Court should consider whether the recipient parent's delay in seeking retroactive support was reasonable in the circumstances, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail (para. 133).

[284] When addressing the payor’s conduct in Michel, the Court commented that when a payor parent fails to pay the appropriate amount of child support, the recipient parent is left to shoulder the burden. If the recipient parent does not have the means to provide their child reasonable support, the child suffers. Both the recipient parent and the child may experience hardship because of a payor parent's neglect. Seen in this light, it bears repeating that retroactive child support is not exceptional relief (S. (D.B.), at para. 5): Michel, supra, at para. 31.

[285] As noted in Michel, failure to disclose material information is the cancer of family law litigation: Michel, supra, at para. 33. The Court went on to consider whether the Mother’s delay in seeking retroactive support was reasonable. In that case, the Mother had suffered a severe injury, and her right to support was assigned to the Minister. This was accepted as reasonable in light of those circumstances. The Court concluded by remarking that the Father’s blameworthy conduct of not providing an accurate picture of his income from the start, he was to pay support back to date of the consent Order on March 29, 2001. The Court stated that effective notice is not relevant when the payor parent has engaged in blameworthy conduct: See Michel, at para. 36.

Analysis

[286] The Mother issued her Response to Motion to Change in January 2020, therefore a retroactive support analysis is required. In same, she articulated that the change in circumstance permitting a review of child support was that since 2016 the Father had been deemed capable of managing his own finances, and advanced that adequate financial disclosure has never been provided.

[287] At trial, the Mother sought an order for child support, readjusted from 2011 when the Parfett Order was signed.

[288] The Mother suggested that (a) there has been a change in circumstance within the meaning of the CSG, and (b) evidence not available at the previous hearing has become available, as set out in s.37(2.1) FLA.

[289] I start with the premise that the Parfett Order is correct. It has never been appealed. The Order was made with the Mother’s consent, pursuant to signed Minutes of Settlement.

[290] The burden of proof lies on the Mother, on a balance of probabilities, to establish a change in circumstances that would result in a different Order than the one that had been made.

[291] At an interim motion heard by me on October 23, 2020, I was persuaded that the Mother had demonstrated a material change in circumstance regarding the Father’s income. The motion for ongoing child support was heard on February 26, 2021, where I found, after reviewing s.37 FLA, that on prima facie basis and the uncontested evidence before me, there had been a material change in circumstances warranting a review of child support.

[292] At that motion, the Mother sought an Order that the Father pay support based on his annual income of $326,830.00. In my endorsement I had requested a better breakdown of the structured settlement. I noted that the Parfett Order imposed an obligation that the Father provide financial disclosure. It also provided an opportunity for the Mother to obtain an expert’s report. Ultimately, without the benefit of a fulsome record, I made a temporary without prejudice Order, and based the Father’s income at $52,718.76 (reflecting what I thought, based on that evidence, to be income replacement benefits, to be grossed up), plus $16,800 rental income, plus $8,900.00 CPP income, totalling $99,631.00. On an interim without prejudice basis, it was Ordered that the Father would pay support to the Mother, for L’s benefit, based on his estimated annual income of $99,631.00, in the amount of $907.00 per month, commencing March 1, 2021. Additionally, the Father was Ordered to pay 88% of the child’s s.7 expenses, reflective of the Mother’s estimated annual income of $11,970.00.

Delay

[293] The Parfett Order was signed in 2011. The Mother asked to adjust child support to that time. She submitted the delay was reasonable in the circumstances. The Father argued otherwise.

[294] Firstly, the Mother’s evidence was that Father did not provide her disclosure, and therefore she was not aware his income increased and that his financial circumstances changed. Further, she submitted she was of the understanding that none of the structured settlement was to be considered income for child support given the OPGT’s position, and the Father failed to share the full details of the structured settlement to her.

[295] Secondly, the Mother submitted it would not have been cost-effective to retain an expert when the Father failed to disclose income information, which would have been required. She instead put her resources toward raising L.

[296] Thirdly, the Mother submitted after the OPGT declared the Father to be competent, turning over his financial affairs to him, he was sporadic in paying support and often threatened to stop payments. She did not want to upset the Father and risk him not paying.

[297] Finally, the Mother expected the Father would bring a cross-claim seeking parenting time to L if a Motion to Change was brought for support. Once the Father brought his motion she advanced a cross-claim seeking further disclosure to determine his annual income, and sought retroactive child support.

[298] On the first point, the evidence has not improved since the Parfett Order. Most of the salient evidence upon which the Court must rely for this trial pre-dates the Parfett Order.

[299] I found the Mother would have had the evidence regarding the structured settlement in 2011. Whether the Mother did or did not understand the implications of the structured settlement and its impact on child support does not change (a) my finding that the evidence was available to her; (b) she chose to sign Minutes of Settlement resolving the issue of child support; (c) that the Parfett Order is deemed to be correct; and (d) that no appeal of that Final Order was ever brought.

[300] However, I agree with the Mother’s submission, and the evidence at trial established, that the Father did not provide financial disclosure to the Mother since he became competent.

[301] Given the OPGT was not called by either party to support their positions, nor were they parties to this action, I am unable to make any findings about the release of disclosure when the Father was represented by them. I do note, and the Mother admitted, that in 2015, the OPGT agreed to adjust her support prospectively and retroactively. To do so, the OPGT provided some confirmation of the Father’s income.

[302] The Parfett Order at paragraph 11 provided the Mother the opportunity to confirm the Father’s income by her own expert. While I accept it may not have been cost-effective to do so without disclosure, I have not been provided any evidence of any contempt or other motions being brought to compel disclosure. I do not make this comment to shift the blame to the Mother, as it was clearly the Father’s obligation to do so. I am equally mindful that the Father did not fully comply with my disclosure Orders made during the course of this Motion to Change.

[303] I accept that the Father was occasionally sporadic in paying his child support and may have threatened to stop paying support. I also accept the Mother was fearful of returning the matter to Court to lessen any potential impact to L.

[304] On a whole, I am of the view that the Mother’s delay in seeking a variation was reasonable in the circumstances.

Conduct

[305] The Mother submitted that the Father engaged in blameworthy conduct primarily by failing to provide disclosure since prior to the 2011 Order, repeatedly misrepresenting and downplaying his income such as not including his full income on his financial statements.

[306] As noted above, since 2016 the Father failed to provide proof of his income, as required in the Parfett Order. This, as stated in Colucci, is one of the most basic obligations to a payor, who controls all the information. I agree that it would be illogical, unfair, and contrary to the child’s best interest to make the recipient solely responsible for policing the payor’s ongoing compliance with their support obligations: See Colucci, supra, at para. 49.

[307] In this case, for reasons stated above, I am unable to make any findings regarding the period from 2011 to 2016.

[308] However, from 2016 onward, the Father chose not to share his financial information as he felt it was none of the Mother’s business. This, I find, constitutes blameworthy conduct.

[309] The Father alleged the Mother also did not disclose her income information. While I have insufficient evidence to decide that issue, even if accurate, this does not permit a payor to withhold financial disclosure.

[310] I am mindful that the parties were able to communicate from 2016 onward regarding L’s s.7 expenses, and the Father voluntarily agreed to increase the child support he was paying to help assist the family.

[311] I am also alive to the Father’s special circumstances.

[312] However, the Father testified he was aware of the Parfett Order and of his obligations. He did not comply with his duties.

Circumstances of the child

[313] The Mother’s evidence was that L is a 14-year-old child with severe anxiety, who requires a substantial amount of support from his family, health care professionals and therapy animals. He participates in extra-curricular activities to help manage his anxiety. Since 2011 it was advanced that L has gone without activities, such as martial arts, as the Father refused to contribute toward such expenses. There was also evidence that the Father contributed to other important expenses, such as the therapy horse, which significantly helps with L’s anxiety.

[314] The Mother alleged that due to her need to support L as well as her own medical limitations, she had been unable to obtain employment that would support her and L’s basic needs. On the evidence, I am persuaded that she has some medical limitations. I am also of the view that L’s special needs have somewhat abated, likely due to his therapy animals.

[315] The Mother testified she never thought of trying to have any of L’s expenses covered through her husband’s insurance, despite indicating that L was primarily supported by her husband.

[316] The Mother submitted that she and her husband sacrificed to ensure L had what was required. The Mother has no retirement savings or funds to support L should he attend post-secondary education. The Mother submitted that without a reasonable retroactive award and prospective support at a more appropriate level based on the Father’s ability to pay, L’s quality of life was likely to suffer.

[317] The Mother’s health issues were not contested, nor were L’s special needs, or the families’ financial circumstances.

[318] In my view, L would benefit from a retroactive readjustment of support.

Hardship entailed by a retroactive award.

[319] The Father advanced that if the Court were inclined to make a retroactive Order starting in 2011, given how he arranged his financial affairs, this would be a significant hardship to him.

[320] The Mother submitted that the Father would suffer no hardship from any retroactive award. He has a mortgage-free income property that is worth approximately $340,000.00, an RDSP of approximately $55,000.00 and a substantial surplus of income. It was submitted that the Father does not need the income from his rental property, which is approximately $10,000.00 per year.

[321] In my view, a retroactive award might be difficult for the Father to satisfy. However, I am not persuaded it would be a hardship.

Final analysis

[322] In D.B.S., Justice Basterache stated that at all times, a Court should strive for a holistic view of the matter and decide each case on its particular factual matrix: D.B.S., supra, at para. 99.

[323] When taking all the factors into consideration, I conclude it would not be appropriate to Order a retroactive child support Order commencing in 2011.

[324] I am of the view that the correct start date to address retroactive child support is 2016. I make this determination for several reasons, including the Father becoming competent and his deliberate non-disclosure of his relevant financial information such as his Income Tax Returns, as mandated by the Parfett Order. I am not prepared to cast blame on the Father for possible non-disclosure when he did not have competency, particularly when neither party called the OPGT as a witness at trial. However, it would untenable to permit the Father to benefit from his failure to provide financial disclosure when he had the capacity to do so.

[325] The ultimate goal is to permit L to benefit from the support he was owed when it was owed. The Mother was left to shoulder the burden to the Father’s wilful non-compliance, and L suffered as a result.

[326] I find it is fair and reasonable to award child support retroactively to when the Father became competent, commencing on June 1, 2016.

Determination of Income

Structured settlement

[327] It was the Mother’s position that the full amount of the Father’s structured settlement, grossed up, should be considered income.

[328] The Mother asserted that it was the Father’s onus to prove the full amount should not be used, and that he had not met his onus.

[329] In Ontario, the leading case on structured settlement is Hunks v Hunks, 2017 ONCA 247, which stands for the proposition that structured settlement annuity payments are to be treated as income, analogous to disability benefits and not a pension. In Hunks, the Court stated:

Like disability benefits in Lowe [v. Lowe, 2006 CarswellOnt 153], the [structured settlement] Annuity payments replace, in whole or in part, the employment income that Ms. Hunks would have earned had she been able to work. The [structured settlement] Annuity payments give her financial support because she cannot work. They are, therefore, of the same nature as the income that she would have earned had she not been injured. Just as disability benefits are more comparable to a future income stream based on personal service than a retirement pension, so too are the [structured settlement] Annuity payments: See Hunks v Hunks, at para. 54.

[330] I find it noteworthy that specific heads of damages were set out in Hunks, and from the total $571,051.88 settlement, $302,100.00 was for future income loss. $302,306.00 was used for a structured settlement, representing a difference of $206.00 not being specifically designated as the future income loss category. The Court was aware that the wife was receiving approximately $1,500.00 per month from the structured settlement annuity.

[331] However, as noted in Ridley v. DeRose, 2017 ONCJ 877, the Ontario Court of Appeal in Hunks made no findings of fact as to the source of the funds to purchase the annuity. The Court in Hunks did not identify the source of the funds as a necessary consideration in determining the issue. In Ridley, the Court of Appeal’s analysis was based on the instrument used to provide the Appellant with a stream of income to replace what she lost, not what part of the settlement was used to pay for it: see Ridley, at para. 78.

[332] The Court in Ridley remarked that if they were wrong in their interpretation of Hunks, they could impute income to the Respondent pursuant to s.19 of the Guidelines having regard to the monthly payment he received.

[333] In Ridley, the Court found it was not possible to apportion the global damages to any particular head of damages. The Court also noted that the infant settlement which was approved by the Court at the time did not include a breakdown of the heads of damages that comprise the settlement reached: See Ridley v. DeRose, at paras. 62 and 63. In reviewing Hunks, the Court noted:

The Canada Revenue Agency does not view payments from a structured settlement as income in the hands of the recipient (para. 51). It is the casualty insurer that owns and is the beneficiary under the annuity contract and reports as income the interest element inherent in the annuity contract while the payments received by the claimant represent non-taxable payments for damages (para. 53). While the Appellant received payments from the structured settlement annuity, she did not own it nor did she have constructive receipt of the settlement monies used to create it (para. 55).

[334] The Court in Ridley concluded that the structure settlement annuity payments received was income for support purposes under the FLA.

[335] In her affidavit found in the motion record filed in support of the Parfett Order, Ms. Rufiange referenced K.(M.) v. S.(R.A.), 2004 BCS 1798. K.(M.) was an appeal decision where the Court had to determine whether, or to what extent, money received as a result of damages award in a personal injury claim, a structured settlement annuity, ought to be characterized as “income” within the meaning of the CSG. The Court noted that 19(1)(b) and (h) CSG may be relevant to the ultimate determination regarding income. In K.(M.), the heads of damages were specifically quantified and the award for loss of earning capacity was based on a gross annual income of $30,000.00. The claim settled on the basis of the structured settlement, which reflect compensation for non-pecuniary loss, loss of capacity to earn an income, and cost of care. The Court referenced Neufeld v. Neufeld, 2001 BCSC 1197, where Holmes J. ruled that settlement funds attributable to lost earning capacity ought to be used to supplement the current income.

[336] Justice Wedge in K.(M.) stated:

32 Our tort system is based on the premise that the only means, however imperfect, of compensating an injured plaintiff for loss of amenities of life or the enjoyment of life is monetary damages. We recognize that money can never fully compensate for loss of enjoyment of life, but our legal system does its best to find an equivalent in monetary terms. An award for non-pecuniary loss is thus intensely personal. It is not made in order to provide an income. It is designed to compensate for non-monetary losses.

33 Cost of future care, similarly, is designed to ensure that whatever care costs the plaintiff incurs as a result of his or her injuries will be met. This aspect of the award, too, is personal to the plaintiff and his or her needs resulting from the accident.

35 While the income stream from an annuity put in place to facilitate a structured settlement for non-pecuniary loss and cost of future care may on first consideration appear to be income, in my view, it is not "income" within the meaning of the Child Support Guidelines. It is not "income" determined by using the sources of income described in the T1 General form used by Revenue, as stipulated by s. 16 of the Guidelines.

36 In my view, the receipt of such payments from a damages award is not caught by s. 19(1)(b) of the Guidelines, which deals with income earned by a spouse that is exempt from federal or provincial income tax. Subsection (b) is based on the assumption that the money received by the payor spouse is truly "income" within the meaning of the Income Tax Act, but by virtue of some other legislative provision, the spouse is exempt from paying taxes on it.

37 Nor, in my view, is the situation caught by s. 19(1)(h) because, again, the funds are not acquired through dividends or capital gains or similar forms of income contemplated by that subsection. An award of damages for non-pecuniary loss and cost of care are designed to compensate for a very different loss than an award for loss of income earning capacity. In that respect, the analysis in the cases dealing with the characterization of personal injury settlements in the context of the division of family assets is helpful and, in my view, applicable to the issue arising on this appeal.

38 It is fortunate that in the present case the appellant's award for loss of earning capacity is easily isolated from the other compensatory aspects of his damages award. He was to receive $30,000 per year, gross, for loss of earning capacity. That was roughly the level of his income at the time of the accident. The appellant concedes for purposes of this appeal that the amount of the damages award attributable to loss of earning capacity, as well as his monthly CPP disability benefit, are properly characterized as income within the meaning of the Guidelines. In my view, that position is correct in law: K.(M.) v. S.(R.A.), supra.

[337] As rightly pointed out by the Mother, K.(M.) is not binding on this Court, but it can be viewed as persuasive. In that case, the specific heads of damages were easily identifiable.

[338] As a final point, Justice Wedge in K.(M.) found that it was not correct to gross up the structured settlement award as the damages award was based on gross income, not net. This final point was distinguished in M.B. v. A.F., 2020 ONCJ 498, at para. 247, where the Ontario Courts, including the Court of Appeal, have not followed this approach. Justice Finlayson stated that in his view, the objectives of the CSG warrant a gross-up.

[339] Interestingly, the Court in M.B. v. A.F., stated: “it is clear that the structured settlement in issue in [Hunks v. Hunks, supra] was entirely purchased using the portion of the damages award that had been characterized as lost future income: see para. 225. The Court in M.B. found it was fair and reasonable to pro-rate the tort settlement on a similar basis as the breakdown of the accident benefits settlement, where it was clearly attributable to income replacement benefits. The Court indicated that they were prepared to find that it was more likely than not that some lump sum amount from both settlements was intended to replace income. However, calculations were before the Court regarding the tort settlement. The Court also found that the argument advanced by the recipient of support about how the money was spent to be a side issue. Ultimately, the Court imputed 23% of the net amount of the tort settlement to the Father as income for purposes of support.

[340] Similarly, in Mason v. Mason, 2013 ONSC 5974, R.S.J. Pierce (as she then was), dealt with a case where the structured settlement was not broken down into individual heads of damage. The Court deemed the Father’s compensation for loss of earning capacity as 1/3 of his award, and fixed child support based on that figure, grossed up to allow for taxes.

[341] As noted in Rivard v. Hankiewicz, 2007 ONCJ 180:

34 In cases where a payor receives non-taxable structured settlement payments as a result of a personal injury and there is no evidence of allocation of these payments among the various heads of damages, some Courts have imputed the entire amount of the monthly settlement payment to the payor as income. For example, in Parkes v. Mones, [2001SKQB 572] Justice Frank G. Dickson noted that the payor treated the whole payment "in the same way as he treats all other income", to meet his monthly expenses and thus, the Court treated the entire amount of the payment as guidelines income.

35 Other Courts, when faced with similar circumstances, have imputed income to the payor without specific reference to the amount paid out in settlement of the personal injury claim. For example, in Zoldy v. Zoldy, [2007 ONCJ 24] the seriously disabled payor father was the beneficiary of a global structured settlement under which he received $8,000 monthly tax-free. The settlement was not calculated with reference to any specific heads of damage for loss of income or cost of care. Evidence was presented of the actuarial assessment of loss of future wages and cost of care that had been advanced in negotiations with the insurer. Justice David F. Kent found that there was good reason to doubt the accuracy of the assumptions made by the actuary in making these calculations. The payor had, before the accident, negotiated a child support agreement based on an imputed level of income; Justice Kent imputed the same level of income to the payor, and Ordered support on that basis. Neufeld v. Neufeld [2001 BCSC 1197] was a case of a payor who received a lump sum not allocated among heads of damage from an insurer in settlement of a personal injury claim. The Court dealt with the issue by attributing income to the payor equivalent to the income earned prior to the accident.

36 In Dalton v. Craig, [2001 CarswellOnt 4551 (Ont. S.C.J.)] the Court dealt with a claim for retroactive child support in a lump sum against a father who was seriously injured and who had received a lump sum for damages from the insurer that was not allocated among specific heads of damage. The father lived on Canada Pension Plan disability payments and interest from the lump sum as well as regular draws on capital from the fund. The mother submitted that the father's income should include the regular capital draws. The trial judge did not accept the submission, observing that depletion of capital that did not give rise to tax consequences (such as R.S.P. withdrawals) was not generally considered to be income. She found that the father's income consisted of Canada Pension Plan disability payments and interest income from his capital funds. She was reversed in part by the Court of Appeal [2002 CarswellOnt 4203] which found that there was evidence that a part of the settlement funds were paid for income loss, although what proportion those payments were of the total settlement could not be determined on the evidence. The Court resolved the issue by selecting an amount payable for retroactive support that seemed "fair and just", considering the circumstances of the parties and considering the fact that a substantial although unspecified amount of the settlement funds had been paid for loss of income.

[342] In Rivard, it was not clear based on the prior Order how income was determined. The Court found that a significant portion of the settlement funds related to lost wages and not to the cost of future care or treatment. In making that determination, Justice Murray noted the Respondent’s average annual income for the three years preceding the accident was $30,000.00. The initial annual annuity payment to the Respondent of $22,000.00 was approximately $30,000.00 when grossed up for tax. Further, a review of the Respondent’s financial statement showed no substantial amounts for treatment or care required due to the injuries. The Court found that the entire monthly annuity received by the Respondent was income.

[343] In my view, the facts in Rivard are substantially different that at the case at bar for the following reasons: (a) it was clear how the parties arrived at the income figure; (b) the evidence before Parfett J included the amount of medical and treatment expenses, and that evidence is before the Court today; and (c) the amount received by the Father from the structured settlement is substantially greater than what he was earning prior to the MVA.

[344] In his submissions, the Father relied on both Zoldy and Dalton to assert that the interest of justice were served by a fair balance to achieve a just result.

[345] In Zoldy, for instance, Kent J. noted that there were several circumstances that were relevant to determine child support, one of which being consideration of previous circumstances of income. However, in Zoldy, the parties had an agreement on the issue of child support prior to the accident. The facts therefore are distinguishable to the case at bar.

[346] In Dalton, the Divisional Court relied on a letter which stated that some part of the total settlement was for past and future income loss. The Court found that it would be difficult and expensive to determine precisely what amount should be attributed to income. In the end, the Court determined it was in the interests of justice and those of the parties if the Court determined what they considered to be a fair amount, considering the circumstances of the parties and the amount that is clearly attributable as income.

[347] Here, the Mother sought to distinguish the Dalton case based on the difference in sums received by the Father, that in Dalton the child received a payment directly from the settlement, and the payor’s means and ability to pay were a significant issue. Those submissions are considered in the overall analysis of this case.

[348] In Neufeld v. Neufeld, supra, the Court found it was appropriate that some of the settlement monies which were attributable to lost earning capacity should be used to supplement the payor’s earning ability.

[349] As correctly noted by the Mother, the Neufeld matter was granted leave to appeal, and no appeal decision appears to have been published. The Court of Appeal nevertheless remarked while granting leave to appeal that the conclusions of imputation of income and under-employment were likely to endure.

[350] The Father relied on Lefebvre v. Strilchuck, 2007 CarswellOnt 1534, which dealt with a pay equity settlement, paid directly to the Trustee in bankruptcy. In that case, the Mother’s financial statement disclosed the existence of the pay equity settlement, the Father confirmed knowledge of its existence, and some disclosure was exchanged between counsel. Minutes of Settlement were signed by the parties, and a final Order was signed by a judge in September 2004. Shortly thereafter, with new counsel, disclosure was requested, and a Motion to Change ensued. Based on the Mother’s incomplete disclosure of her income information, the Father sought to go behind the September 2004 Order. The Father’s position was there could not be issue estoppel or res judicata if the evidence was not before the Court regarding the pay equity settlement. The Mother meanwhile argued that there was no change in circumstances warranting a variation, and that the Father was aware at the time of settlement in 2004 that there had been a pay equity settlement. On the issue of res judicata, the Court determined that if a material change in circumstances had occurred since the 2004 Order, the variation of same could be made, and the principle of res judicata could not bar such as claim from being advanced. However, in Lefebvre, the Father was attempting to raise issues that were disclosed to him in 2004 but left unraised by him. Whether the pay equity settlement was disclosed to the Father in the 2004 proceedings were separate and distinct from the issue of whether there had been a change in circumstances warranting a variation (see para. 22).

[351] The Court in Lefebvre went on to review the main principles regarding the doctrine of res judicata, which were set out in Reddy v. Oshawa Flying Club, 1992 CarswellOnt 349 (Ont. Gen. Div.). “In that case, the Court dismissed a motion on the basis of res judicata since all issues had been raised previously in an earlier action concluded by Consent Orders. The Court stated the following at paragraphs 8 [and] 9 in respect of the issue of res judicata:

The Ontario Court of Appeal in Upper v. Upper, [1933] 1 O.R. at p. 7 cited Henderson, supra, with approval and quoted the following proposition from that judgment:

Where a given matter becomes the subject of litigation in and of adjudication by a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not, except under special circumstances, permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence might have brought forward at the trial.

In the case before the Court, minutes of settlement were signed with respect to all three prior actions and consent Orders dismissing the actions and the counterclaims, cross-claims and third party claims in these actions were issued. Reddy was a party to the consent Orders and signed such Orders. The case law seems to be clear that a consent Order which ends an action is of the same effect for purposes of the res judicata doctrine as a judgment issued by the Court on completion of a trial or hearing.

The Court in Bell v. Bell, 1998 CarswellOnt 4722 (Ont. Gen. Div.) also confirms that consent judgments are both final and binding. This decision further establishes that in assessing the finality of a Consent Order, consideration should be given to the circumstances surrounding the signing of the agreement. Specifically, where each party has independent legal advice and there is no evidence of misrepresentation affecting the formation of the agreement, the Court established that the agreement should be upheld: Lefebvre v. Strilchuk, supra, at paras. 27 and 28.

[352] Further, the Court noted in Lefebvre that there was an obligation on the parties to raise any additional issues relevant to the proceedings at the time the settlement was reached. It found that the Father had the opportunity to raise the issue of the pay equity settlement but chose not to do so. The Court found that at the time of the 2004 proceedings, the Mother made full disclosure regarding her pay equity settlement to the Father’s counsel. The Father, in an affidavit, acknowledged his awareness of the settlement. Therefore, there was no blameworthy conduct. Additionally, the Court found that it would be an abuse of process in allowing the Father to put forward issues that were known to him but left unraised at the time of the first action.

[353] While I agree with the Mother’s submissions that the type of settlement and the benefit to the payor is distinguishable to this case, the underlying facts are nevertheless applicable. Similar to the issue here, there was evidence that the Mother would have received the motion record which formed the basis of review by the Court in making the Parfett Order.

Discussion

[354] In this case, the motion record which formed the basis of the Parfett Order contained two affidavits. Ms. Rufiange’s affidavit, as counsel for the Father, set out that the Father’s net present value of his income replacement claim was $365,736.00, the net present value of his future care costs was $11,193,575.00, but the MVA litigation settled in November 2010 for a global amount of $4,025,000.00. Ms. Rufiange’s affidavit evidence (not tested in cross examination at this trial) was the settlement was not broken down by heads of damages. The net recovery was $3,179,162.10, of which $3,000,000.00 was invested into a structured settlement. That structured settlement paid $13,500.00 per month, which paid for the Father’s accommodations, therapy and transportation costs, which virtually exhausted his monthly income.

[355] Ms. Rufiange went on to state that at the time of the accident, the Father was self-employed. After the accident he had no income. The accident benefits insurer settled the claim by agreeing that the Father’s income replacement, calculated based on his ITR’s and business financial statements, was $389.28 per week, or $20,242.56 per year. As noted in the Divorcemate calculation, that amount, gross up, was used as the income figures.

[356] Meanwhile, Ms. Susan Brown’s evidence (not tested at this trial) was that she carefully reviewed the proposed settlement, by which there was child support based on income replacement and not the full structured amount. She stated that the OPGT accepted the settlement on behalf of the Father, subject to the Court’s approval, as in their view the risk of proceeding to trial and the legal costs involved, the settlement about the calculation of child support and other issues, she agreed that the Minutes of Settlement were in the Father’s best interest, as a special party.

[357] The Mother argued that the Father could have called Jamie Pollack, his former counsel for the tort claim, as a witness to the trial to speak to the amount of income replacement benefits contained in the structured settlement. There was evidence of recent communications between his current counsel and Mr. Pollack. However, the Mother could also have called Mr. Pollack to support her claims if she so chose. She could also have called an expert to provide greater guidance to the Court.

[358] It was the Mother’s position that the Father’s expenses have significantly decreased, and he has substantial surplus. Given same, she submitted that the full amount of the structured settlement, grossed up, should be considered income for support as it was in Ridley, particularly as he had substantial income available for L’s benefit.

[359] The Father meanwhile remarked that though the Mother may feel that he spent money recklessly, this would not justify rearranging the settlement and adding income to what was decided in 2011. The Father argued the doctrine of res judicata, or “matter decided”, submitting that the matter had been adjudicated and therefore cannot be further persuaded by the parties. The difficulty with that argument was that the legislation provides for a variation of an Order upon evidence of change in circumstance. However, there is nevertheless the presumption that the Parfett Order is correct, and this is not an appeal of that Order.

[360] The Father also argued that pursuant to section 7 of the Charter, he has the right to the security of his person. On this point, the Father provided no case law to support this argument. I am not persuaded that s.7 of the Charter is applicable in the case at hand, particularly as neither party state agents.

[361] To support his argument that the income which should be used should remain that as set out in the Parfett Order, the Father provided evidence of his income prior to the MVA. The Father’s Line 150 income for 2003 was $17,698.26, for 2004 was $18,768.12, and for 2005 was $24,915.28. While the Mother suggested these figures were underestimated, on a balance, I accept the income as noted in the ITR’s. The Father submitted how the Soberman report provided an analysis using income figures consistent with the tax returns. These figures were adopted by the Mother’s then lawyer in her Divorcemate calculation as an income replacement figure. Ms. Brown of the OPGT deposed (at B240) that child support was based on income replacement and not the full structured settlement. These figures were accepted by the Court.

[362] It was submitted by the Father that he already suffered a loss in the “bargain” made in 2011 given that his future care costs were estimated to be over $11M, as per the Soberman report (B1855) but recovery was limited to the amount of the driver’s insurance coverage. He also argued that it is unknown what his future health care costs might be, or if his mobility will be further impacted, and therefore the Court should be cautious in varying or increasing his income.

[363] In Ridley, it was noted that the Respondent’s structured settlement annuity were almost equivalent to the monthly expenses claimed in the financial statement. The Court stated that the structured settlement annuity funds were being used to meet his and his family’s ongoing expenses. When discussing how the structured settlement annuity funds were being used, the Court considered that the Respondent did not provide evidence of his day-to-day needs, did not identify any past or anticipated care expenditures since receiving the structured settlement annuity, and did not provide evidence of past or expected significant medical or assistive device costs except for one possible operation.

[364] Here, the Mother pointed to the Father’s financial statements to compare to his 2011 situation. I note the following:

a. In the Father’s September 26, 2011 financial statement, he reported an annual income of $173,425.68, and a yearly deficit of approximately $28,446.26. This deficit included annual expenses such as companion services of $35,986.08, health and medical expenses of $31,566.24, and what looked like expenses for the jointly-owned home of approximately $27,317.16.

b. In his January 11, 2019, financial statement, the Father’s income was listed as $178,800.00 (he did not include his CPP benefits), and the Father’s total living expenses were $97,200.00, including $8,400.00 for health expenses.

c. In his March 19, 2021 financial statement, the Father’s income was $174,083.52 (I note that in his evidence there was a double input for net rental income, therefore I adjust this amount of $161,363.52). His annual expenses were $95,718.60, including $5,280.00 for health expenses, $13,200.00 for his cleaning lady/ personal assistant.

d. In the Father’s financial statement dated September 29, 2021, his total income was noted to be $159,034.56, with annual expenses of $123,098.00, including $5,280.00 for health expenses and $10,884.00 for child support.

[365] The Father’s annual medical expenses in 2011 were the highest they have ever been, being $59,317.38. In 2016 they were approximately $21,000.00 per year. (See B919)

[366] The Father’s evidence regarding his current health related expenses consisted of medical, dental fees, gym membership and a personal trainer, allowance for companionship and personal support services, housekeeping/ cleaning, and A.C.T. Inc. Therapy to try to regain his driver’s licence.

[367] The Mother pointed to the large sums of money the Father spent for companionship. For instance, over $150,000 given or loaned to Meghan. The 2011 motion record provided for companion services of $35,986.08 per annum. However, the Father has far exceeded what could be viewed a reasonable amount paid for companionship.

[368] The Mother criticized the Father’s use of a full-time personal assistant, indicating that he had not required one in the past, and was quite capable of sending emails and e-transfers independently. It was conceded however that he may nevertheless need occasional assistance in speaking with service providers. The Mother submitted these expenses were unreasonable given he does not need a personal driver, or a housekeeper, and he failed to provide evidence of such needs. The evidence was that in 2011, the Father had a driver, was living in an assisted living residence where everything was provided for him.

[369] I am of the view that the Father’s health is in much better state than in 2011. I note that in 2014 the evidence was that the Father was able to walk five miles, three times per week. At trial however, he attested was he was significantly less mobile than what was portrayed in 2014. I do not feel I need to fully reconcile this discrepancy as I accept that he has limitations that affect his everyday life.

[370] Further, I find the Father employing an assistant is reasonable given his limitations, including, but not limited to, his inability to drive, his speech issues and possible mobility issues.

[371] As for the evidence of future care costs, the Father testified that he would continue with his personal trainer and gym membership, which I find reasonable in the circumstances. I also find it reasonable for the Father to attend counselling, regardless if it is due to the anguish of not seeing L or if it relates to the MVA. The Father’s evidence was he stopped going due to the cost. Should he wish to return, I find it would be a reasonable expense.

[372] Considering the above, I now turn to the question of the structured settlement.

Structured settlement analysis

[373] As always, I start with the premise that the Parfett Order is correct. In support of that Order, Justice Parfett was directed to K.(M.) v. S.(R.A.), 2004 BCS 1798. In K.(M.), the heads of damages were specifically quantified. In that case as in Neufeld, it was determined that the structured settlement funds attributable to lost earning capacity ought to be used to supplement the current income. These two cases pre-date the Ontario Court of Appeal cases of Hunks and Ridley.

[374] In Hunks, the Court had specific heads of damages set out in evidence. In Ridley, the Court found it was not possible to apportion the global damages to any particular heads of damages.

[375] I agree with Justice Wedge’s comment in K.(M.) that an award for non-pecuniary loss is intensely personal, and it is not made in order to provide an income. It is designed to compensate for non-monetary losses. Future care costs are similarly designed to ensure the care costs incurred because of the injuries will be met.

[376] I agree with the Court in Dalton that it would be difficult and expensive to determine precisely what amount should be attributed to income. It was unfortunate that there was an absence of expert evidence at this trial.

[377] I find that it is in the interests of justice and those of the parties for the Court to determine what a fair and reasonable amount is attributable to income, considering the circumstances of the parties. I find the Father has met his onus in this determination.

[378] I am of the view that to reach this fair determination, I must pro-rate the settlement breakdown to reach what was, on a balance of probabilities, properly attributable as income.

[379] I find it is more likely than not that some of the settlement was intended to replace income, and some was to compensate for future care costs and other losses. The underlying evidence, and recent case law suggests this is appropriate. The income replacement amount will be imputed to the Father as income for support and grossed up to allow for taxes pursuant to s.19 CSG. Ultimately, despite the lack of expert evidence, I find there is sufficient evidence for me to undertake this analysis.

[380] While there may have been a “global” settlement, the underlying evidence which led to the 2011 final settlement was the following (from Exhibit 6, filed as part of the motion record in support of the Parfett Order):

a. The Father’s net present value of his income replacement claim was $365,736.00, as per the Soberman LLP report dated September 28, 2010;

b. The Father’s net present value for his future care costs was $11,193,575.00 (medical, rehabilitation, attendant care, transportation), based on the Catastrophic Injury Management report dated February 5, 2010, and as produced in the Soberman LLP report dated September 27, 2010;

c. The MVA litigation settled in November 2010 for a global amount of $4,025,000.00;

d. The net recovery payable to the Father was $3,179,162.10;

e. Of the net recovery amount, $3,000,000.00 was invested into a structured settlement. The structured settlement paid $13,500.00 per month;

f. The Order of Justice Frank dated May 4, 2001 attached a copy of the structured settlement payments (McKellar Structured Settlements Inc. report) (B203)

[381] Based on the above values, if I pro-rate the claimed based on the breakdowns above, similar to M.B. v A.F., supra, the Father’s income replacement claim was 3.2% of the total claims ($365,736.00 plus $11,193,575.00 = $11,559,311.00), ($365,736.00 divided by $11,559,311.00 is 0.0316, or 3.2%).

[382] The ultimate settlement was $4,025,000.00, which resulted in a structured settlement of $3,000,000.00. 3.2% of the entire structured settlement should be deemed income replacement. This is consistent with the evidence from the motion record that a significant portion of the calculations were for future care costs.

[383] I am of the view that until Hunks was released in 2017, the case law was less clear, and therefore Justice Parfett was correct to rely on the evidence before her in the motion record, including K.(M.).

[384] Nevertheless, due to the deliberate non-disclosure of financial information by the Father from 2016 onward, as well as my findings above regarding the start date for retroactive child support, I find it is appropriate to include 3.2% of the structured settlement to the Father as income from 2016, to be grossed up.

[385] This calculation, in my view, is commensurate with the Father’s income earning capacity prior to the MVA, which ranged from $17,698.26 (2003) to $24,915.28 (2005), as well as what was accepted by Justice Stinton when signing the September 17, 2009 Final Order.

[386] Based on the McKellar structured settlement reports, the Father earned the following amounts per month, in Parts I and II, which I then multiply by 3.2%, which will be added to the Father’s monthly income for child support purposes:

2016: $4,058.67 + $10,846.43 = $14,905.10 x 3.2% = $476.96 (totalling $5,723.52/ year)

2017: $4,139.84 + $11,063.35 = $15,203.19 x 3.2% = $486.50 (totalling $5,838.00/ year)

2018: $4,222.64 + $11,284.62 = $15,507.26 x 3.2% = $496.23 (totalling $5,954.76/ year)

2019: $4,307.09 + $11,510.31 = $15,817.40 x 3.2% = $506.16 (totalling $6,073.92/ year)

2020: $4,393.23 + $11,740.52 = $16,133.75 x 3.2% = $516.28 (totalling $6,195.36/ year)

2021: $4,481.10 + $7,116.65 = $11,597.75 x 3.2% = $371.13 (totalling $4,453.56/ year)

2022: $ 4,570.72 + $7,258.98 = $11,829.70 x 3.2% = $378.55 (totalling $4,542.60/ year)

[387] The Father’s annual income shall be increased to include the above amounts, which shall be grossed up to account for taxes.

Income Replacement Benefits from the SABS (Statutory Accident Benefits Settlement)

[388] The Mother’s position was the Father continued to receive the SABS at a rate of $389.28 per week, as non-taxable income.

[389] The Father’s evidence was ambiguous regarding whether the income replacement benefits from the 2009 Order under which the SABS were still being received, or if they had increased or decreased since the 2009 Order.

[390] On a balance, I find that the Father continues to receive the SABS, at a rate of $389.28 per week, or $20,242.56 annually, grossed up for taxes. Additionally, the Consumer Price Index factor must be included in this income. There appeared to be no argument that for 2020, that amount would be $29,098.62. For 2021 it would be $29,313.95.

CPP income

[391] The Mother submitted the Father was earning $9,470.64 per year for CPP. If he failed to provide proof annually, $200.00 should be added to the previous year’s amount for support purposes.

[392] The Father agreed that his current (2021) CPP income is $9,470.64.

[393] For 2020, both parties agreed that the Father’s CPP income was $9,376.92 (rounded by the Mother to $9,377.00).

[394] I shall use the amounts to which both parties are agreed for 2020 onward. However, I am not persuaded it is appropriate to add $200.00 per year as suggested by the Mother. There will be an annual disclosure obligation as a term of the final Order.

[395] For past years, I will rely on the amount accepted by CRA.

Rental income

[396] Both parties agree that the net rental income should be $10,391.04 per year.

[397] However, given that the Father’s position was to only reflect a change as of 2020 when the Mother commenced her cross-claim, I am of the view that this does not constitute a change to the rental income to past years. As such, I rely on the actual evidence of rental income for 2016 to 2019, and from 2020 onward I will use the agreed upon net rental income amount.

Imputation of investment income

[398] The Mother took the position that investment income should be imputed to the Father. She submitted that he had tens of thousands of dollars of income available above his expenses, which should reasonably be invested.

[399] Section19(e) and (f) of the CSG permit the Court to impute income to a parent as it considers appropriate in the circumstances, which includes where (e) the parent’s property is not reasonably utilized to generate income, and (f) where the parent has failed to provide income information when under a legal obligation to do so.

[400] Section 23 CSG permits the Court at a hearing to draw an adverse inference against any parent who did not comply with the disclosure required and to impute income to the parent. (Also see Moulson v. Graves, 2002 CarswellOnt 2183, at para. 12)

[401] In Moulson, the Court found it appropriate to impute income to the Father based on investments disclosed, at a rate of 4% per annum, as the Father’s investments could and should have been used to augment his earnings, to the benefit of the child: Moulson v. Graves, supra, at para. 14.

[402] In Perry v. Fujimoto, 2011 ONSC 3334, the Court was asked to impute $35,000.00 of investment income to the wife based on her having approximately $700,000.00 in cash available to be invested at 5%. The Court determined a more conservative approach was appropriate, and imputed $15,000.00 of investment income to the wife, based on $500,000.00 of cash being available to invest at an average rate of return of 3%.

[403] As set out in Homsi v. Zaya, 2009 ONCA 322, the onus is on the party requesting to impute income to establish an evidentiary basis upon which the findings can be made. (Also see L.S. v. M.A.F., 2021 ONCJ 554, at para. 140.)

[404] In Ridley v. DeRose, supra, the Court provided an imputation of income analysis as an alternate method of supporting the ultimate determination on the issue of a parent’s annual income for child support purposes in the context of a structured settlement. The Court stated:

87 As the structured settlement annuity is not taxable, it is not included in the calculation of the Respondent's "total income", that is, in line 150 of his T1 tax return (Guidelines s. 16). However, ss. 19(1) of the Guidelines provide that a Court may impute such amount of income to a parent as it considers appropriate in the circumstances, which circumstances include those enumerated. The receipt of income from a structured settlement annuity is not set out in the circumstances listed. However, the circumstances listed in ss. 19(1) are not exhaustive. The Court can impute income in appropriate circumstances bearing in mind the objectives of the Guidelines: see Bak v. Dobell, 2007 ONCA 304 (Ont. C.A.).

88 In this case, I find it would be appropriate to impute income, or rather attribute the structured settlement annuity payments to the Respondent as income because:

a) the payments are received in predictable amounts, recurring on a monthly basis and are non-assignable;

b) the structured settlement annuity payments fund all of the Respondent's expenses and his financial obligations. His financial statement discloses that this is the case. He also acknowledged this in his oral evidence. One of his most important financial obligations is to provide for his children to the extent he is capable of doing so: see FLA, ss. 31(1); and

c) according to Hunks, the structured settlement annuity payments are income for spousal support purposes. Courts generally treat income for spousal support purposes the same as income for child support purposes: see Rilli v. Rilli, 2006 34451 (ON SC), para. 14: See Ridley v DeRose, supra, at paras. 87 and 88.

[405] The Court went on to gross-up the imputed income to reflect the tax-free receipt of the structured settlement annuity. This was found to allow the Respondent’s children to receive support in a manner that is consistent to other children who are in similar circumstances. In doing so, the Court considered s.19(1)(b)(c) and (h) CSG: Ridley, paras 92, 111 and 112. However, the Court did not find it appropriate to impute income based on income that could be earned on the structured settlement annuity payment: Ridley, at para. 119.

[406] Here, the Mother suggested that on average, the Father’s expenses have been less than $100,000.00 per year. His income, prior to grossing it up, has been consistently more than $170,000.00 per year. As such, it was submitted that the Father had approximately $70,000.00 per annum to invest. Further, when he regained competency in 2016, the OPGT turned over $110,000.00 from the funds held by them, plus a RDSP. I find as a fact that the Father has not contributed any further to his RDSP, and the $110.000.00 no longer exists.

[407] It was submitted that the Father was reckless in his finances, including transferring large sums of money to various people over the years, money that he should have invested.

[408] The Mother suggested that the Father should have invested $495,000.00 since 2016, consisting of $70,000.00 from 2017 to 2021 (5 years) and the $110,000.00 from the OPGT, as well as $35,000.00 for the last half of 2016.

[409] Relying on Moulson and Perry, the Mother submitted that $19,800 be added to the Father’s income based on the $495,000.00 the Father should have accumulated.

[410] At an absolute minimum, the Mother submitted that the Father should be imputed investment income at the level the OPGT was accruing it for him, at an average of approximately $4,500.00 per year based on the three years prior to the 2011 Order, at which time significantly less income was available to invest due to his apparent expenses.

[411] I am of the view that what is fair and reasonable in these circumstances is to impute investment income to the Father. A review of his financial statements from January 11, 2019, March 19, 2021 and September 29, 2021 shows there is a surplus of between $35,000.00 and $70,000.00 after expenses. This amount does not account for the $110,000.00 received by the PGT after becoming competent, or the monies sent to Meghan or other people.

[412] I find that it is appropriate to impute based on a modest rate of 3% of $70,000.00 per annum for investment income from January 1, 2020 onward. As such, $2,100.00 per year shall be imputed to the Father as investment income as of January 1, 2020.

Total income and support payable

[413] Both parties provided evidence of what support was paid. The Father’s evidence at times did not differentiate which amounts were for only child support. As such, on a balance, given the Mother is not seeking retroactive s.7 expenses, I rely on the figures provided by her to establish what support was paid by the Father. I accept her argument that the extra $500.00 paid by the Father in 2016 due to the bounced cheque should not be considered child support.

[414] Based on the totality of the evidence and my findings above, I find it is appropriate that the Father pay child support based on the following total income: the structured settlement (to be grossed up), SABS (to be grossed up) plus CPI, CPP, rental income and investment income. The total amounts to be calculated from June 1, 2016 onward, as delineated for some categories above (i.e.: investment income from 2020 onward only).

[415] Unfortunately, given the numerous Divorcemate inputs for some of the tax years (i.e.: in 2016 the Mother’s draft Divorcemate calculations at A1382 includes eight interest or capital gains inputs) as well as the CPI yearly calculations for which I have no submissions, I am unable to calculate the proper quantum of support payable. I ask counsel to provide the Court with the necessary calculations based on the following, subject to clarification provided on values included below if so required:

2016: Structured Settlement: $5,723.52 (to be grossed up)

SABS: $20,242.56 plus CPI (to be grossed up)

CPP: $8,739.00

Net Rental income: $1,900.00

Investment income/ capital gains and other inputs relevant to the Divorcemate calculations: $to be calculated by counsel

Total income: $to be calculated by counsel

Child support paid: $4,796.20

Child support now owed: $to be determined upon receipt of calculations

2017: Structured Settlement: $5,838.00 (to be grossed up)

SABS: $20,242.56 plus CPI (to be grossed up)

CPP: $8,862.00

Net Rental income: $2,979.00

Investment income/ capital gains and other inputs relevant to the Divorcemate calculations: $to be calculated by counsel

Total income: $to be calculated by counsel

Child support paid: $5,710.00

Child support now owed: $to be calculated by counsel

2018: Structured Settlement: $5,954.76 (to be grossed up)

SABS: $20,242.56 plus CPI (to be grossed up)

“Total income” from NOA: $9,606.00

Net Rental income: $included above

Investment income/ capital gains and other inputs relevant to the Divorcemate calculations: $to be calculated by counsel

Total income: $to be calculated by counsel

Child support paid: $6,600.00

Outstanding child support: $to be calculated by counsel

2019: Structured Settlement: $6,073.92 (to be grossed up)

SABS: $20,242.56 plus CPI (to be grossed up)

CPP: $9,202.08

Net Rental income: $3,392.40

Investment income/ capital gains and other inputs relevant to the Divorcemate calculations: $to be calculated by counsel

Total income: $to be calculated by counsel

Child support paid: $6,608.00

Outstanding child support: $to be calculated by counsel

2020: Structured Settlement: $6,195.36 (to be grossed up)

SABS: $20,242.56 plus CPI (to be grossed up)

CPP: $9,376.92

Net Rental income: $10,391.04

Investment income: $2,100.00

Total income: $to be calculated by counsel

Child support paid: $7,200.00

Outstanding child support: $to be calculated by counsel

2021: Structured Settlement: $4,453.56 (to be grossed up)

SABS: $20,242.56 plus CPI (to be grossed up)

CPP: $9,470.64

Net Rental income: $10,391.04

Investment income: $2,100.00

capital gains and other inputs relevant to the Divorcemate calculations: $to be calculated by counsel

Total income: $to be calculated by counsel

Child support paid: $7,856.00

Outstanding child support: $to be calculated by counsel

[416] The Court does not have the evidence to determine what was paid after October 31, 2021.

Section 7 expenses

[417] Briefly summarized and modified herein to reflect the Father is no longer represented by the OPGT, the Parfett Order stated:

16 The Mother does not require consent for the following s.7 expenses: medication or dental expenses for L that do not exceed $500.00 per treatment, child care expenses and the cost of L’s first post-secondary diploma or degree, subject to L’s obligation, depending on L’s circumstances at the time, to contribute toward the cost of his own education.

17 The Mother shall notify the Father and seek his consent for any future s.7 expenses, beyond those specified for which consent is not required. Consent to the expense from the Father shall not be arbitrarily or unreasonably withheld. In the event that a response to a s.7 expense request is not provided within 45 days, consent will be deemed to be granted.

18 The Father will pay his proportionate share of the s.7 expenses within 45 days of being provided a receipt marked paid or an invoice, in which case, payment will be made payable to the service provider in question.

[418] The Mother is not seeking any arrears of s.7 expenses.

[419] The parties agree that L’s horse and therapy dog are s.7 expenses.

[420] The Mother’s position was she should be able to incur expenses for extracurricular activities and everything which is contained in s.7 of the CSG’s and receive prompt reimbursement from the Father without his prior consent. She took this position given the Father’s past behaviour regarding s.7 expenses. The Mother submitted she had been reasonable with the expenses incurred on behalf of L, ensuring he had what he needed within a limited budget. She had been reasonable as to her expectations regarding reimbursement from the Father. For instance, she only sought sharing of the pet insurance for L’s dog, when there were other expenses such as food, importation fees and uncovered medical expenses.

[421] The Mother submitted despite the s.7 expenses being reasonable and modest, when the Father refused to contribute, this caused her to either incur the entire expense, or for L to go without. This was not in the child’s best interest.

[422] The Father submitted all s.7 expenses should be approved by him prior to incurring the expense.

[423] The evidence was that the Father refused to contribute toward L attending martial arts and refused to financially assist in providing L a laptop and tablet. The Father believed the Mother was not being forthcoming about the expenses.

[424] The evidence showed the Father does not trust the Mother. The question is whether this level of distrust is sufficient to give the Mother carte blanche for the s.7 expenses.

[425] Despite the Father’s distrust of the Mother, he nevertheless voluntarily agreed to increase child support, and pay for reasonable expenses which in my view may not fall strictly within the confines of s.7.

[426] The Father testified he was willing to continue to pay for the dog’s medical insurance, which I find was reasonable.

[427] When asked if he was willing to contribute to the cost of a new horse, the Father, quite fairly, indicated that it depended on the cost for same. It was the Mother’s view that simply using a “school horse” would not benefit L as much as having his own horse. This would be a significant expense.

[428] Regardless, both parties have agreed that the horse and dog expenses will be s.7 expenses, and this consent to the expense shall be honoured.

[429] I find the Father’s consent to the above expenses to be evidence of the Father’s general ability to be reasonable when it comes to s.7 expenses for L. Though ordinarily I would not be inclined to agree that the purchase of a horse is reasonable or modest, given L’s special needs, L’s skills and ability to train a horse, the approximate cost of the proposed replacement horse ($5,000.00 to $7,5000.00), the Father’s general openness to purchase a horse and his ability to pay his pro-rata for same, in this case, I do find it would be appropriate for L to have his own horse.

[430] I find the Father’s reticence to pay for a new computer for L to be a function of poor communication, as opposed to a reticence to provide for L. However, as a function of this current world, I would find it reasonable to replace L’s computer every two years.

[431] Based on all the evidence, I am not persuaded that the Mother should have carte blanche to incur s.7 expenses. However, I am of the view that the terms of the Parfett Order should be modified to include two extra-curricular activities per year, over and above horseback riding.

[432] Additionally, upon receipt of the Divorcemate calculations as discussed in child support analysis, I will be able to quantify the proportionate sharing of the s.7 expenses in the Final Order.

Security for support

[433] Section 34(1)(c) and (k) FLA permits the Court to make an Order under s.33 FLA requiring: (c) that property be transferred to or in trust for or vested in a dependent, whether absolutely, for life or for a term of years; and/or (k) requiring the securing of payment under the Order, by a charge on property or otherwise.

[434] Section 34(4) binds the estate of the person having the support obligation unless the Order provides otherwise. Section 12 Child Support Guidelines (“CSG”) permits the Court to require security for support.

[435] The Parfett Order stated the Father’s support was secured by a first charge of his estate.

[436] The Mother submitted that given the Father was managing his own finances, there was a high risk that there would not be enough money left to secure support for L in the event of the Father’s untimely passing.

[437] She submitted that unbeknownst to her at the time when she consented to the 2011 Order, according to her, Part I of the structured settlement was guaranteed for 15 years both to provide for L and create a legacy for him.

[438] The Mother submitted, and the Court agrees, that the Father’s evidence was he had been taken advantage of by at least one woman when he was vulnerable, leading him to transfer to her at least $150,000.00 to her.

[439] The Mother suggested that the Father hiring Ms. Berthiaume without a vulnerable sector screening or background check demonstrated a lack of judgment on behalf of the Father, leaving him and his finances exposed. After having heard from Ms. Berthiaume, the Court does not agree with the suggestion that hiring her demonstrated a lack of judgement. The Father’s evidence was that she does not have access to his passwords, and he is present when she speaks on his behalf. On its face, these protocols are reasonable.

[440] Another ground for the relief as plead by the Mother was the Father’s transfer of money to other people, including his ex-wife. The motion record showed that when the Parfett Order was made, the Father had an allowance for companionship services. The Father’s evidence was that he choses companions to spend time with. I am of the view that generally, it is reasonable that the Father have companionship. In the 2011 motion record the Father’s financial statement indicated he paid approximately $36,000.00 for companionship services, which I view as a reasonable amount.

[441] The Father admitted in cross-examination that he had been bad at managing his finances prior to the accident. His financial situation since becoming competent supports a continued finding to this effect. For instance, as pointed out by the Mother, despite his considerable income, the Father has substantial debts and has not contributed toward his savings. He was unable to account for the $110,000.00 received in 2016 by the OPGT.

[442] The Mother submitted that to secure support, the Father should pay all funds allocated from his structured settlement for L in excess of the child support paid into a trust for L, naming the Mother as the trustee. For clarity, the amount in Part I of the structured settlement less amounts paid for child support since February 1, 2011 until at least January 31, 2026 shall be placed into a trust for L on a retroactive and ongoing basis.

[443] The Father suggested that support be secured through an irrevocable designation through the insurer that Part I be paid to the Mother, for L, in the event of his passing within the 15-year guaranteed payment. Further, the Father submitted that his Will leaves everything to L in the event of his passing. Though the Will is revocable, it shows an intention since 2016 to provide for the child.

[444] The Mother was not agreeable to the idea of the irrevocable designation as it would only secure support until L is 18 years old. If L were to attend post-secondary education, which the Mother submitted was likely, support would be required past his 18th birthday.

[445] In reviewing the letter dated December 20, 2010 from Ms. Rufiange (at B1965), at page 2 it was explained that “Part I provides lifetime monthly payments in the initial amount of $3,594.00 indexed at 2% per annum, compounded, and guaranteed for 15 years. The reason for the guarantee was to ensure any child support obligations are satisfied and leave a legacy for [L] in the event that you pass away unexpectedly.” Coupled with Ms. Rufiange’s affidavit, where she referenced the Father’s inability to obtain a life insurance policy, and the evidence at trial, I find it is more probable than not that Part I was in place so that child support would still be paid by the Father’s estate in the event of an untimely passing. I am not persuaded that this imposed an obligation on the Father to create a trust in favour of L.

[446] While s.34(1)(c) and (k) FLA permits the Court to make an Order transferring property to or in a trust for a dependent, or vested in a dependent, or requiring security of payment by a charge on property or otherwise, the onus would be on the Mother to demonstrate this was required. The Court is not persuaded the Mother has met her onus on this issue.

[447] I am mindful that the Father has engaged in some reckless spending, that he withheld financial disclosure, and that he has no significant savings.

[448] However, he nevertheless paid support in a timely fashion (but for the first part of 2016), until this Order no arrears were owed. Further, based on his most recent financial statement, his net worth is $336,024.59.

[449] The Court has not received any contemporaneous evidence that the Father still does not qualify for life insurance at a reasonable rate. With the Father regaining competency, this issue should be explored. The Father is hereby directed to apply for two separate for life insurance policies of $300,000.00 from two different companies within 30 days. He shall disclose both the applications and responses to the Mother in writing.

[450] Based on the evidence before the Court, I am not persuaded that a trust should be created in favour of L. However, any outstanding child support shall continue to be the first charge on the Father’s estate.

[451] I also find it is appropriate that, for security for child support, the Father shall, with the assistance of counsel, sign an Irrevocable Direction to Sun Life Financial, or such other documentation as they may require, to ensure that in the event of his death, the 15 year guaranteed payment from Part I of the structured settlement be paid to the Mother, for L, in the event of his passing within the 15-year guaranteed payment period.

Initializing of the decision

[452] The Mother suggested in her closing submission that the names of the parties and the child be initialized to protect L’s privacy and potential future relationship with the Father.

[453] This issue was not raised at trial. Neither counsel provided caselaw or substantial submissions on this issue.

[454] I am mindful of the open court principle. In this case, I am not persuaded that initializing the parties’ names is appropriate.

[455] However, initializing the child’s name and date of birth is consistent with the Personal Data Protection and Anonymization in Decisions Guidelines, and protects the child’s privacy interests. As such I have used the child’s initial rather than the full name.

Disposition

[456] Final Order to go as follows:

Pursuant to the Children’s Law Reform Act:

Parenting Time and the relationship with L

1. Parenting time between L and the Father shall be at L’s discretion including in person visits, virtual contact and/or telephone contact.

2. The Father shall prepare a child-appropriate video message for L twice a year (once in February and once in August of each year). In the video, the Father will update L about what he has been doing, how his life is going and any new information about his paternal family members.

3. The video will be shown to L by a mental health professional such as Corrina Arsenault (or a similar professional in the Cornwall area) who the Father will retain solely for the purpose of receiving the video and reviewing it with L every six months. The process shall be as follows: The Father shall locate two mental health professionals who are willing to receive and review the video with L. This information shall be provided to the Mother. The Mother shall choose between the two professionals.

4. The Mother shall support L in reviewing the videos sent by his Father by taking him to the mental health professional’s office when contacted.

5. The Father is able to send cards (with child-appropriate content) and presents to L.

6. The parties to consider retaining a reintegration therapist if and when L requests to move forward with a relationship with his father.

7. The Mother shall continue to advise the Father of all major decisions that need to be made regarding L and her proposed decision and to take into account the Father’s opinion before making any major decisions.

8. The Mother shall provide the Father with medical, mental health, educational and extra-curricular information regarding L at his request as well as a regular update as per the child’s progress.

9. The Mother and the Father shall support L’s continued involvement with his present extra-curricular activities including horseback riding.

10. The Mother and the Father shall support L’s mental health by encouraging his relationship with his therapy animals.

11. The parties’ communications with each other shall be courteous and respectful. Such communication shall be by email only.

Pursuant to the Family Law Act and Child Support Guidelines

Child Support

12. As directed above, the parties shall provide the Court with the Divorcemate calculations, as specified in paragraph 415, such that the Court will make an Order:

That the Father shall pay child support to the Mother, for the child’s benefit, to include:

(a) Commencing June 1, 2016, based on his total income, including 3.2% of the structured settlement (to be grossed up); SABS adjusted by the CPI (to be grossed up), as well as CPP, Net rental income and investment income/ capital gains as set out in his Income Tax Return and/or Notice of Assessment; minus what was paid since June 1, 2016;

(b) For 2017, based on his total income, including 3.2% of the structured settlement (to be grossed up); SABS adjusted by the CPI (to be grossed up), as well as CPP, Net rental income and investment income/ capital gains as set out in his Income Tax Return and/or Notice of Assessment; minus what was paid in 2017;

(c) For 2018, based on his total income, including 3.2% of the structured settlement (to be grossed up); SABS adjusted by the CPI (to be grossed up), as well as CPP, Net rental income and investment income/ capital gains as set out in his Income Tax Return and/or Notice of Assessment; minus what was paid in 2018;

(d) For 2019, based on his total income, including 3.2% of the structured settlement (to be grossed up); SABS adjusted by the CPI (to be grossed up), as well as CPP, Net rental income and investment income/ capital gains as set out in his Income Tax Return and/or Notice of Assessment; minus what was paid in 2019;

(e) For 2020, based on his total income, including 3.2% of the structured settlement (to be grossed up); SABS adjusted by the CPI (to be grossed up), net rental income of $10,391.04; CPP of $9,376.92; and $2,100.00 for investment income; minus what was paid in 2020;

(f) For 2021, based on his total income, including 3.2% of the structured settlement (to be grossed up); SABS adjusted by the CPI (to be grossed up), net rental income of $10,391.04, as well as CPP of $9,470.64 and $2,100.00 for investment income; minus what was paid in 2021.

(g) The arrears will be fixed by the Court at the next court date once the Divorcemate Calculations have been considered.

13. Child support shall be automatically adjusted on an annual basis commencing January 1 of each year, and shall include 3.2% of the structured settlement, the relevant SABS payment plus CPI, both of which shall be grossed up; the Father’s full amount of CPP; net rental income of $10,391.00 for so long as the Father owns the Ottawa condo; and investment income of $2,100.00.

14. The parties shall exchange Income Tax Returns and Notices of Assessment by June 1st of each year, commencing in 2022.

Section 7 expenses

15. Commencing November 1, 2021, the Father shall pay his proportionate share of the after-tax costs of the child’s section 7 expenses based on this anticipated 2021 income which will be set out in the Divorcemate Calculations based on the above instructions and the Mother’s anticipated 2021 income of $11.789.00. The Mother shall not be required to seek the Father’s consent for the following s.7 expenses, though she shall provide him a receipt within 30 days of incurring said expense:

(a) medication or dental expenses for L that do not exceed $500.00 per treatment;

(b) a laptop or computer for L every second year, commencing in 2022, until L is no longer attending full time studies;

(c) two extra-curricular activities per year, over and above horseback riding;

(d) his proportionate share of L’s therapy dog’s pet insurance;

(e) his proportionate share of L’s horseback riding lessons, equipment, competition fees, boarding and medical expenses of the horse;

(4)the cost of L’s first post-secondary diploma or degree, subject to L’s obligation, depending on L’s circumstances at the time, to contribute to the cost of his own education.

16. One-time only, the Mother may purchase a replacement therapy horse for L, to a maximum cost of $7,500.00, and the Father shall pay his proportional share within 30 days of receiving the receipt and/or invoice.

17. The Mother shall notify the Father and seek his consent for any future s.7 expenses, beyond those specified above for which consent is not required. Consent to the expense from the Father shall not be arbitrarily or unreasonably withheld. In the event that a response to a s.7 expense require is not provided within 45 days, consent will be deemed to be granted.

18. The Father will pay the proportionate share of the s.7 expenses within 45 days of being provided a receipt marked paid or an invoice, in which payment will be made payable to the service provider in question.

Miscellaneous

19. The Father is hereby directed to apply for two separate life insurance policies of $300,000.00 from two different companies within 30 days. He shall disclose both the applications and responses to the Mother in writing. Should the LIP be available at a reasonable rate, the Father shall secure same.

20. Any outstanding child support shall continue to be the first charge on the Father’s estate.

21. For security for child support, the Father shall, with the assistance of counsel, sign an Irrevocable Direction to Sun Life Financial, or such other documentation as they may require, to ensure that in the event of his death, the 15 year guaranteed payment from Part I of the structured settlement be paid to the Mother, for L, in the event of his passing within the 15-year guaranteed payment period.

22. The Mother’s request to initialize the parties’ names is dismissed.

23. The Court has initialized the child’s name and date of birth, consistent with the Personal Data Protection and Anonymization in Decisions Guidelines. The Final Order however, to be prepared by counsel, shall contain the child’s particulars.

24. The parties are to communication with trial coordination to secure a date before me within 45 days of the release of this judgment, via Zoom, to permit the Court to make a Final Order on support with the appropriate Divorcemate calculations and to entertain cost submissions, including the cost of the s.30 Assessment. The Divorcemate calculations, offers to settle, bills of costs, and any relevant caselaw are to be filed by both parties at least 6 days in advance of the appearance. 60 minutes required. I leave it to counsel to determine if they wish their clients to attend.

[457] I wish to thank counsel for their professionalism and collegiality, as well as for their very helpful closing submissions.

Justice Hélène C. Desormeau

Released: January 12, 2022

COURT FILE NO : 08-382

DATE : 2022/01/12

ONTARIO

SUPERIOR COURT OF JUSTICE

Lisa Saroli

– and –

Dean Grette

REASONS FOR JUDGMENT

Justice H. Desormeau

Released: January 12, 2022

[1] As the evidence was presented in Caselines, numbers such as these reflect where the document and/or evidence was located at trial.

[2] The Mother’s affidavit states 2015, but the OPGT letter marked as Exhibit “K” is dated March 2, 2016.