Court File and Parties

COURT FILE NO.: FC-13-1978-2 DATE: 2022/04/08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

IVA VASILESKI, Applicant – and – GOCE VASILESKI, Respondent

COUNSEL: Deborah Bennett, for the Applicant Self-represented, for the Respondent

HEARD: January 20 and February 16, 2022

RULING

LALIBERTE J.

[1] The parties have brought a Motion and Cross-Motion asking the Court to retroactively and prospectively review the support paid by the Respondent for the child Adriana. The Applicant mother is claiming arrears exceeding $30,000 as a result of an underpayment by the Respondent father commencing January 1, 2016. For his part, the Respondent seeks a reimbursement of $32,831 from the Applicant for an overpayment in child support, supplementary monetary contributions and in kind contributions as of 2013.

[2] The Respondent is also asking the Court to vary the existing parenting time for the child which is vested primarily with the Applicant to equal shared parenting time or, at a minimum, not less than 40% to him. Furthermore, he seeks 200 weekends of parenting time as retroactive compensation.

[3] Both sides have filed affidavit evidence and documents in support of their respective positions on the numerous factual and legal issues raised in these proceedings. The Court is provided with conflicting and contradictory narratives and facts. The Court notes that these have not been challenged through questioning.

[4] The undisputed facts reveal that the parties were married on August 20, 2003 and separated on October 7, 2012. They were divorced on November 23, 2013. There is one child of the marriage, namely Adriana who was born on September 22, 2009.

[5] A separation agreement was signed by the parties on March 14, 2013. Same was filed with the Court by the Applicant in November 2019. As will be discussed later in these reasons, the Respondent raises a number of issues regarding the validity of this agreement.

[6] The following are portions of the March 14, 2013, separation agreement which are relevant to the issues of parenting and child support:

“4. PARENTING

4.1. Iva and Goce will have joint custody of the child of the marriage namely, Adriana born on September 22, 2009.

Regular Schedule

4.2 Adriana will reside primarily with Iva and the following access schedule:

(1) Every Saturday and/or Sunday at times agreed upon between the parties. Goce will pick up and / or drop off the child from Iva's residence, while residing in Ottawa;

(2) Once overnight access during two weekend per month provided that Goce has a separate room for the child;

(3) Any additional access as agreed upon between the parties.…

4.6 Iva and Goce will make important decisions about Adriana's welfare together, including decisions about Adriana’s

(a) education;

(b) major non-emergency health care;

(c) major recreational activities.

4.7 If Adriana needs emergency medical care while with one parent, that parent will promptly notify the other of the emergency.

5. CHILD SUPPORT

5.2 For purposes of determining child support for Adriana, for the year 2011, his annual income is $ 46,546 and Iva's annual income is $46,223.

5.3 Adriana lives primarily with Iva, but Goce has physical custody of Adriana for less than 40% of the year. In determining the appropriate child support to be paid, the parties have considered the Table amounts for each parent, the increased cost of this shared custody arrangement (including appropriate housing, transportation, and the duplication of toys, equipment and clothes), and the condition, means, needs and other circumstances of each parent and Adriana. To satisfy each party's obligation to pay child support in accordance with the Guidelines, Goce will pay to Iva as child support for Adriana:

(a) $350 starting on the 1st of October 2012, and on the first day of each month; and

(b) the amount payable for special or extraordinary expenses as set out in the applicable special or extraordinary expenses sections below;

5.4 Adriana's current special or extraordinary expenses are mainly daycare expenses. For the purposes of a settlement, Iva will assume the entire cost of daycare solely.

5.5 However, for any other special or extraordinary expenses it is agreed that for the purposes of apportioning the special or extraordinary expenses, they shall be shared equally between the parties.

5.6 The parties will only contribute to Adriana's additional special or extraordinary expenses if the parties consent to the expenses in advance, in writing. Neither party will unreasonably withhold consent…..

5.7 Once a year, if either party asks in writing, Iva and Goce will review the child support arrangements in this Agreement…….

5.8 If either party asks in writing for disclosure, both will provide the following information to the other, within 30 days of the request:

(a) the documents required in s. 21(1) of the Guidelines that have not previously been provided;

(b) current information about Adriana's special or extraordinary expenses;

(e) any other information needed to review child support.

5.9 Until the support is adjusted by an amending agreement, court order or arbitration award, Goce will continue to pay the child support and his contribution to Adriana's special and extraordinary expenses under the parties' most recent written agreement, court order or arbitration award.

5.10 The parties will adjust the Table amount of child support paid each calendar year based on the parties' actual incomes for that calendar year. By no later than May 1st of each year, the parties shall exchange copies of their income tax returns, as filed, for the applicable calendar year. The parties shall then determine the appropriate Table amount of the parties' child support obligation for the applicable calendar year, in accordance with the Child Support Guidelines . If the payor has underpaid or overpaid, the Table amount of child support obligation for the applicable calendar year, each party shall provide the recipient with the additional amount owing for the applicable calendar year within 30 days…..

5.11 Whoever seeks a change will give the other, in writing:

(a) notice of the proposed change;

(b)evidence of the proposed change; and

(c) any request for information necessary to determine the issue.

5.15 Iva and Goce acknowledge that Goce owes arrears in the amount of $1,750 for child support (from October 2012 to February 2013 inclusively). In addition, Goce owes Iva the amount of $250 for the child Registered Education Savings Plan (RESP) (from October 2012 to February 2013 inclusively). Upon the signing of this Agreement, Goce wilI provide a cheque in the amount of $2,000 to Iva.

5.16 Goce will provide a series of post-dated cheques four times a year to Iva. Therefore, upon signing this agreement, Goce will provide a cheque for $400 representing child support and RESP for the month of March 2013.The next series of post-dated cheques will commence as of April 1st 2013 and every 3 months thereafter.”….

Retroactive Child Support

[7] The Court will deal first with the issue relating to retroactive child support. Properly articulated, the question is whether the Respondent has underpaid child support in an amount exceeding $30,000 between the period of January 1, 2016 to the present or has overpaid in the amount of $32,831 since 2013.

[8] The Applicant’s claim is based on the Respondent’s failure to pay child support in accordance with the increase in his annual income as prescribed in the Child Support Guidelines O. Reg. 391/97 as am. She maintains that while she did not make any written requests to adjust the child support as provided for in the separation agreement, she did try to speak to the Respondent about this but he would have made it clear that he would not pay more than $350 per the said agreement. She states that he threatened to fight her and claim 50/50 shared parenting in response if she commenced legal proceedings. She notes that he has in fact made false serious allegations of child abuse and family violence against her in these proceedings, all of which she denies. He would have stopped paying child support in October 2019 and stated he was doing so because the money was going to her and not the child. He would also have refused to disclose his income. His actions led her to file the separation agreement with the court, retaining counsel and ultimately commencing legal proceedings in August 2020.

[9] On November 24, 2020, Justice Summers ordered the Respondent to pay, commencing December 1, 2020, monthly child support in the amount of $896 based on his 2019 income of $98,142.

[10] Counsel for the Applicant explained in submissions that the claim going back to January 2016 is based on the principles set out by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, which were later reviewed in Michel v. Graydon, 2020 SCC 24. The case of D.B.S. stands for the proposition that such an award should, as a general rule, be retroactive to the date of effective notice by the recipient parent that child support should be increased, but to no more than three years in the past. Effective notice does not require action; all that is required is that the topic be broached.

[11] The Applicant explains that from the time the separation agreement was signed until 2016, they both experienced unemployment and accommodated each other. This is the reason why her claim for the retroactive amount commences in January 2016.

[12] Based on the Respondent’s line 150 figures from his Notices of Assessment disclosed in these proceedings for the years 2016 to 2020 and the recently provided T4 statements for 2021, the Applicant relies on the following accounting in support of her claim:

YEAR	RESPONDENT’S INCOME	MONTHLY AMOUNT PER GUIDELINE	MONTHLY AMOUNT PAID	OWING
2016:	$53,392	$482 X 12 (year: $5,784)	$350 x 12 (year: $4,200)	$1,584
2017:	$79,186	$738 x 12 (year: $8,856)	$350 x 12 (year: $4,200)	$4,656
2018:	$64,574	$601 x 12 (year: $7,212)	$350 x 12 (year: $4,200)	$3,012
2019:	$98,142	$896 x 12 (year: $10,752)	$350 x 12 (year: $4,200)	$6,552
2020:	$150,796	$1,305 x 12 (year: $15,660)	$350 x 11 $896 x 1 (year: $4,746)	$10,914
2021:	$148,709	$1,289 x 12 (year: $15, 468)	$896 x 12 (year: $10,752)	$4,716
Total:				$31,434

[13] The Applicant rejects a number of the assertions made by the Respondent in support of his position, including the following:

• that he did not understand the separation agreement due to language; he was pressured and forced to sign it; that the agreement was unfair, biased and the result of dishonest negotiation and settlements;
• that the $50 contribution to the RESP was meant to be accounted for as table child support; and
• that since 2013, he has overpaid child support in the amount of $6,096, has made supplementary monetary contributions totaling $9,305 and made in-kind contributions of $15,401 for a total of $32,831; these do not amount to child support as they relate to Christmas presents, restaurants, grocery stores, movies, pharmacies, Amazon orders and gas stations; the payments in-kind are reimbursements of the expenses for groceries and activities; they are reimbursements of “his half” of the expenses that he agreed to pay for such as the family trip to Disney, birthday parties and gifts for the child.

[14] The essence of the Respondent’s position with respect to retroactive child support is that he has, starting in 2013, overpaid the Applicant a total of $32, 831 in child support. He states having done so under three separate headings.

[15] Firstly, his evidence is that he paid $6,096, over the prescribed support under the Guidelines in accordance with his income for the years of 2013, 2014 and 2016. He confirms that his yearly income as per his Notices of Assessment for 2011 to 2020 and his recently provided T4 statement for 2021 are as follows:

2011: $46,546 2012: $35,767 2013: $18, 865 2014: $47,825 2015: $28, 609 2016: $53, 372 2017: $79,196 2018: $64,574 2019: $98,142 2020: $150,796 2021: $148,709

[16] The sum of $6,096 is based on the following calculations:

2013: he should not have paid $400 per month; the monthly support should have been based on his 2012 income; he overpaid $88 per month for a total of $1,056 2014: he should not have paid $400 per month; the monthly support should have been based on his 2013 income; he overpaid $249 per month for a total of $2,988; and 2016: he should not have paid $400 per month; the monthly support should have been based on his 2015 income; he overpaid $171 per month for a total of $2,052.

[17] Secondly, he maintains having provided the Applicant “supplementary monetary contributions” in excess of $9, 305. In support of this, he provides a series of 12 cheques in amounts varying from $500 to $2,00 issued to the Applicant from March 31, 2013 to July 7, 2019. He explains the following in his September 13, 2021 affidavit:

“22. I note that the above amount of $9,305.00 showing my monetary contributions/overpayments does not represent the total financial assistance I had given to Ms. Vasileski as a loan in the past. I did not record completely all the money I lent to Ms. Vasileski forasmuch as she was giving me a strong hope and kept me in the belief that we would reconnect and make a family for our daughter again. In fact, Ms. Vasileski and I were creating big plans at the time for our family living together, to invest and purchase a bigger house and build two separate entrances, in case something goes wrong, so Adriana to have and enjoy full benefits of living together with both parents as a family, once again.”

[18] Thirdly, he maintains having made numerous “in-kind contributions” for which he cannot fully account as he does not have “a clear recollection” and “records are not available”. At a minimum, these amount to $17, 430.60 from 2013 to 2020:

2013: $2,198.81 2014: $2,446.07 2015: $1,880.21 2016: $2,905.81 2017: $3,279.13 2018: $2,043.23 2019: $1,759.94 2020: $917.30

[19] He identifies the following “in-kind contributions” in his affidavit evidence:

a) Purchasing birthday and Christmas gifts and presents, school items, clothes, commodities (over $4,000);

b) Covering the costs for the family vacation in Gananoque (over $1,200);

c) Sharing the costs for purchasing Adriana’s laptop, hoverboard, twin bunk-beds and mattress (over $1,500);

d) Covering his share of the costs of approximately $5,000 for the family vacation trips to Orlando, Syracuse and Sandbanks;

e) Providing labor and/or paying expenses for cleaning the Applicant’s house, carpets and car; installing/assembling Adriana’s furniture (approximately $1,500);

f) Purchasing groceries voluntarily or upon Adriana and/or the Applicant’s request in a monthly amount of $30-$50; (over $4,500 in total);

g) Paying the costs for food and entertainment at restaurants, parks, fun and amusement parks and clubs (over $2,000);

h) Covering his share for Adriana’s parties (over $2,000);

i) Covering costs of $500 for Adriana’ special or extraordinary activities (OSU soccer program, including sport shoes, protective and other equipment and gadgets);

j) sharing the costs for Adriana’s special and extracurricular expenses (ballroom dance competition, soccer, gymnastics, skating, swimming, etc.); (over $1,000);

k) Purchasing two dinnerware sets and Frontignac Dinner set (total of $500); and

l) covering the travel and meal expenses for Adriana’s ballroom dance competition in Montreal in 2019 (over $130).

[20] The Respondent challenges the validity of the March 14, 2013 separation agreement. His affidavit evidence is that he arrived in Canada in October 2005 and did not speak the English language. He states that he was struggling with the English language at the time of the agreement and did not understand the terms and conditions set out therein. Furthermore, he maintains that the agreement was unfair, biased and the result of dishonest “negotiation” and “settlement”. The Applicant would have “forced” and “pressured” him to sign it.

[21] His affidavit evidence with respect to child support includes:

• the child support has never been an issue until he asked for modifications of the parenting and overnights for the child;
• he has always paid his “child support monthly obligation of $400” on time and sometimes 2-3 months ahead of time;
• he would give the Applicant blank cheques and allowed her to enter the amounts; and
• The Applicant has never asked him to make any changes or adjustments to child support annually.

[22] He is highly critical of the Applicant. The Court notes the following assertions in his affidavit evidence:

• she is playing “power and money game”; she worries about nothing but money;
• she is “dishonest” and “mendacious”; she “maliciously lies” and “is hard to be trusted”;
• she has lied to Canada Revenue Agency on the amount of child support she has received;
• she is lying when she states that he only paid $350 to Family Responsibility Office (“FRO”) every month; and
• she was “physically and mentally abusive to all family members”.

Discussion

[23] What then is the proper disposition on the issue of retroactive child support?

[24] As discussed with the parties, the applicable legislation is s. 37 of the Family Law Act R.S.O. 1990, c.F.3, as am, and not s. 17 of the Divorce Act, R.S.C. 1985, c3 (2nd Supp) as am. As noted by Justice Doyle in Stobo v. Stobo, 2016 ONSC 5805, “an agreement registered pursuant to the Family Law Act does not become an order under the Divorce Act .” The March 14, 2013, separation agreement having been filed with the Court under s. 35 of the FLA , the Court may vary same retroactively and/or relieve the payor from the payment of part or all of the areas as provided for under s. 37(2.1) of the FLA . Such a review requires a change in circumstances within the meaning of s. 14 of the Child Support Guidelines. One such change in circumstances is a change in the payor’s income which would result in a different amount for the support of the child as set out in the child support table.

[25] Looking at the Respondent’s historical annual income since 2011, it is undeniable that, as a whole, the sum of $350 monthly child support falls short of the table amounts. The amount of $350 is prescribed for a yearly income in the range of $39,500. As noted earlier, the Respondent’s yearly income since 2011 is as follows:

2011: $46,546 2012: $35,767 2013: $18, 865 2014: $47,825 2015: $28, 609 2016: $53, 372 2017: $79,196 2018: $64,574 2019: $98,142 2020: $150,796 2021: $148,709

[26] So that save for the years 2012, 2013 and 2015, the Respondent’s annual income exceeded $39,200. The payment of $350 per month is therefore not commensurate with the Respondent’s yearly income for most years since 2011.

[27] The Applicant has therefore shown a change in circumstances based on the increases in the Respondent’s annual income. Such change allows for a retroactive review of the child support paid by the respondent. In carrying out this review, the Court is guided by the principles set out by the Supreme Court of Canada in the following cases:

• D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231.
• Michel v. Graydon, 2020 SCC 24.
• Colucci v. Colucci, 2021 SCC 24.

[28] The Court finds that it is legally and factually sound to follow the presumptive three-year rule from formal notice of the Application to vary in the present matter. The Court notes that the undisputed evidence reveals that from 2013 to 2016, both parties experienced unemployment and accommodated the other. As an example of this, in 2015, the Applicant agreed to reduce the respondent’s monthly child support by $150 for a period of either five or nine months. The Respondent’s income steadily increased as of 2016.

[29] The Court notes the following instructions from the Supreme Court regarding the presumptive three-year rule:

“[106] In cases involving claims of overpayment it will rarely be appropriate, given the recipient’s absence of knowledge, to retroactively decrease support to a date before the recipient could have expected that child support payments received from the payor might need to be repaid at some future date. This approach protects the child’s best interests and the recipient’s certainty interest, while allowing payors who have overpaid to seek a retroactive decrease as long as the recipient has been given proper notice and disclosure.”

[30] The chart provided by the Applicant which was reproduced in these reasons discloses the Respondent’s income, monthly amount he should have paid per the Guidelines , the amounts paid and the resulting underpayments from 2016 to 2021. The net result is an underpayment of $31,434. The issue to be decided by the Court is whether this amount is countered and in effect offset by the $32,831 the Respondent claims to have overpaid the Applicant since 2013.

[31] Having considered the circumstances and relevant principles, the Court finds that the arrears and underpayments totalling $31,434 from 2016 to 2021 are not offset by the $32,831 claimed by the Respondent for the period of 2013 to 2021. This finding is based on the following considerations:

1. The Court will not take into account monies said to having been paid prior to the retroactive review period which commences January 2016.

2. Even if the Court was to go back to 2013, it is incorrect to suggest that he overpaid a total of $6, 096 for the years 2013, 2014 and 2016. Firstly, his monthly payments were not $400 but $350 in child support and $50 for his contribution to the RESP. Next, the payments were not to be calculated as per his income for the preceding year. Specifically, the 2014 payments were to be based on his 2014 income of $47,825 and not his 2013 income of $18, 865 as suggested by the Respondent. The same logic applies for 2016 when his income was $53, 372 and not his 2015 income of $28,609. The table amounts are not to be decided on the basis of a payor’s income for the previous year. As noted in s. 2(3) of the Child Support Guidelines:

   s. 2(3): Where, for the purposes of these Guidelines , any amount is determined on the basis of specified information, the most current information must be used.

   This was noted by the Court in Coghill v. Coghill, [2006] O.J. No. 2602. The objective is to determine current income. Based on the Respondent’s 2014 income of $47, 825, he should have paid $431 per month. Based on his 2016 income of $53,372, he should have paid $489. He has therefore underpaid for the years 2014 and 2016. He did however overpay in 2013 based on his income of $18, 865 as he should have paid in the range of $149. However, this 2013 overpayment is offset by his underpayment for the years 2014 and 2016.

3. The $9,305 supplementary monetary contributions calculated on the basis of the 12 cheques issued by the Respondent to the Applicant are not found to offset the underpayments:

   i) 7 of the 12 cheques were issued prior to the retroactive review periods which commences January 2016;

   ii) Cheque #143 issued on March 31, 2013 in the amount of $2,000 was made pursuant to para. 5.15 of the March 14, 2013 separation agreement which provided for the payment of retroactive child support from October 2012 to February 1013 inclusively in the amount of $1,750 coupled with $250 for the Child’s RESP for the same retroactive period;

   iii) As reinforced by the Supreme Court of Canada in Michel v. Graydon, op. cit, child support is the “right of the child'' and a “debt” owed to the child by the payor. The Respondent makes it clear that the supplementary monetary contributions were not in the nature of child support. He refers to the same as money lent to the Applicant. The Court notes at para. 22 of his September 23, 2021 sworn affidavit when he states:

   “... these do not represent the total financial assistance I had given to Ms. Vasileski as a loan in the past. I did not record completely all the money I lent to Ms. Vasileski forasmuch as she was giving me a “strong hope” and kept me in the belief that we would reconnect and make a family for our daughter again. In fact, Ms. Vasileki and I were creating big plans at the time for our family living together to invest a purchase for a bigger house and build two separate entrances, in a case something goes wrong, so Adriana to have and enjoy full benefits of living together with both parents as a family, once again.”

   Based on the Respondent’s own affidavit evidence, these supplementary monetary contributions were not in the nature of child support but monies lent to the Applicant. As such, they cannot serve to counter underpayment of child support.

4. Similar reasoning applies to the $17,430.60 that the Respondent claims as “in-kind contributions”. A portion of these precede the January 2016 retroactive review period and as such, are not properly part of the equation. A number of these are described by the Respondent as the “sharing by him” of special or extraordinary expenses. Section 7 contributions are separate and distinct from child support payable in accordance with the applicable table. While it is commendable that the Respondent would have paid his share of the items outlined by him which he quantifies as totalling $17, 430.60, the Court is of the view that these “in-kind contributions” do not amount to child support as contemplated under the presumptive rule set out in s. 3(1) (a) of the Child Support Guidelines. The items sought to be deducted by the Respondent include the following:

   i) birthday and Christmas gifts for the child;

   ii) his share for the costs of family vacations to Gananoque, Orlando, Syracuse and Sandbanks;

   iii) his labor and/or paying expenses for cleaning the Applicant’s house, carpets and car;

   iv) installing/assembling furniture for the child;

   v) purchasing groceries at the Applicant’s and/or the child’s request;

   vi) costs for food and entertainment at restaurants, pubs and amusement parks;

   vii) his share of the child’s birthday parties;

   viii) purchase of two dinnerware sets and Frontignac Dinner set; and

   xi) travel and meal expenses for the child’s ballroom dance competition in Montreal in 2019.

   These are found to be unconditional gifts and payments which are not connected to the Respondent’s monthly child support obligations to his young daughter in accordance with his actual yearly income. Such gifts and voluntary payments cannot serve to offset the Respondent’s historical underpayment.

5. The Court finds that it is fair and principled to exercise its discretion to grant the relief sought by the Applicant by means of a retroactive award in the amount of $31,434 which reflects the Respondent’s underpayment of child support from January 2016 to the end of December 2021. In so finding, the Court has considered and weighed the factors set out in the jurisprudence, namely the recipient’s reason for delaying in bringing the Application, the conduct of the payor parent, the circumstances of the child and the hardship the award creates for the payor.

   Dealing first with the bringing of the proceedings in August 2020 by the Applicant, the Court is provided with a conflicting and contradictory narrative from both sides. The Applicant’s evidence is that she did not make any written requests to adjust the child support from January 2016 to October 2019 but that she did try to speak to him about their income and child support. He would have made it clear that if she requested changes to the amount, he would seek 50/50 parenting. This threat caused her significant concern for the child as she had always been the primary caregiver. She describes him as very controlling and authoritarian. He had always been clear that he would not pay more. He would have stopped paying from October 2019 to February 2020. She maintains that he did not disclose his income prior to these proceedings. The Respondent provides a very different narrative in his affidavit evidence. He relies on his son’s affidavit in support of his version which echoes the same details. The Respondent asserts that the Applicant commenced these proceedings in response to his claim for equal shared parenting. He maintains that he always disclosed his income but she never requested more than what he was paying. In fact, she would have refused his cheques from October 2019 to February 2020. He provided copies of these cheques marked as “void”.

   While it is difficult for the Court to make credibility findings on the basis of such conflicting and untested affidavit evidence, on its face, it appears that the Applicant’s narrative as to why she delayed in commencing these proceedings is reasonable and more plausible in the circumstances.

   The Court notes that the Respondent’s evidence is somewhat contradictory. On the one hand he describes the Applicant has worrying about nothing but money and “playing power and money games.”. Yet she would not have claimed any increase in child support prior to October 2019 and failed to do so notwithstanding the fact that he would have disclosed the significant increase in his income. If money was her primary motivation, why would she not have claimed more prior to 2019? This concern is reinforced by his narrative that he only sought shared parenting in 2019. If this is true, there would not have been any basis to deter the Applicant from following her primary motivation which he claims to be money.

   With regard to the Respondent’s conduct, as already indicated, the Court is provided with opposite versions whether he disclosed material changes in his income over the years. If he did disclose these changes, this favours the granting of the retro award since his doing so supports a finding that he understood the significance of his income and the link to his child support obligation. There would have been no other reasons for him doing so. In the final analysis, he never sought to increase the amount paid notwithstanding significant increases in his annual income. It is reasonable to infer that he knew he was not paying in accordance with his income. Furthermore, there was a large gap between the amount paid and the significant increase in his income.

   It is also telling that the Respondent’s claim for equal shared parenting was in response to the Applicant’s claim for retroactive and prospective child support in accordance with his income. He did not take any steps prior to this in spite of what he describes as years of systematic denial of entitlement to parenting.

   He had an obligation to support his daughter in a manner commensurate with his income. He did not fulfill his obligation to do so. As stated by the Supreme Court of Canada in Michel v. Graydon, op. cit;

   “[99] Further the obligation to support one’s child exists irrespective of whether an action has been started by the recipient parent against the payor parent to enforce it, because child support is a continued obligation owed independently of any statute or court order…”

   As for the child Adriana’s circumstances, there is no indication in the evidence that she lacked in anything nor suffered from the Respondent’s failure to pay proper child support. It does not appear that she has been negatively impacted in terms of necessity and well-being. By all account, she is doing very well and thriving. It is noted that the Respondent did at times contribute more than the $350 monthly child support by means of contributions from which the child benefited. However, the fact remains that the child did not historically benefit from the support she was entitled to in accordance with his income. It is also reasonable to find that Adriana’s well-being results from the Applicant having paid more to maintain the child.

   The last factor relates to hardship the retroactive award may cause the Respondent. A review of his material filed in these proceedings do not reveal that the retroactive award would cause hardship as contemplated in the jurisprudence. While having to pay $31,434 would likely impact his financial situation, the evidence does not show that same would rise to the level of hardship.

   His September 13, 2021 sworn Financial Statement discloses the following:

   • He owns real property valued at $350,000
   • Investments of $15,500
   • Bank account of $5,600
   • Net worth of $109,505
   • 2020 income of $150,79

   His 2021 T4 shows his income to have been $148,708.89. As noted by Justice Chappel in MacEachern v. Bell, 2019 ONSC 4720:

   “[96]Cases decided since D.B.S. have highlighted the need for the payor to establish clear evidence from which a finding of hardship can be made, and that hardship is not simply established by the fact that the payor will have to pay a significant retroactive award. Hardship will not be inferred from vague allegations regarding financial difficulties and stress…”

   In fairness, the Court will allow the Respondent until September 30, 2022 to pay the sum of $31, 434 to the Applicant as a retroactive award for child support underpayment for the period of January 1, 2016 to December 31, 2021.

   The Court will not however grant the arrears of $3,392 sought by the Applicant for special and extraordinary expenses for the period of August 14, 2020 to December 1, 2021 calculated at a rate of $221 per month. The essence of the Court’s reason for doing so is that the undisputed evidence shows that the Respondent has at least paid such amount through the years in his contributions to Adriana’s various activities.

Parenting Issues

[32] It was noted with the parties in the course of the hearing that the Respondent raised parenting issues by mean of a Response to the Applicant’s Motion to Vary. This was not the correct process since there in no court order with respect to parenting. The matter should have been brought as an Application since parenting is governed by the March 14, 2013, separation agreement. However, the parties wished to proceed pursuant to the process before the Court. The court agreed to do so to avoid more costs and delays. The analysis will be based on the Children’s Law Reform Act, R.S.O. 1990, c. C. 12, as am.

[33] As with the question of retroactive child support, the Court is provided with significantly different and contradictory narratives regarding parenting of the child Adriana.

[34] The Respondent seeks 50/50 parenting and decision-making responsibility. In the alternative, he is asking for at least 40% parenting time. He also claims retroactive compensation for denied parenting time and oversight access of approximately 200 weekends for the period of October 2017 to December 2020. Furthermore, as part of the “retroactive compensation of denied parenting time and overnights”, he is asking for payment of “travel costs, lost wages or time, childcare expenses, etc. he incurred due to her denial of his parenting time and overnights, his lost time and damaged relationship with Adriana…”.

[35] In support of his claim, the Respondent’s affidavit evidence provides reasons why shared parenting time would be in the child’s best interests. He states that he has successfully parented three children including Adriana and assumed a significant caregiver role in her life. He describes their relationship as a quality one and encourages her to have the same with her mother and siblings. He has always ensured that her needs were met and fostered her interests. He also relies on the February 25, 2021 Voice of the Child Report which confirms their excellent relationship, how the child enjoys spending time with both parents and how she wishes to spend more time with him. He relies on the child’s right and entitlement to free and unconditional access to both parents as well as parents’ equal right to make parenting decisions. He indicates that he is able to provide her with love, guidance, education, life necessities and meet her needs. She has access to a separate room in his home.

[36] The Respondent is highly critical of the Applicant’s character and parenting throughout his affidavits. He paints her in very troubling and negative terms. He describes her as “malicious liar”, “dishonest”, “hard to be trusted”, “mendacious”, “makes false allegations and claims’ and that she “disgracefully lies to achieve her ideas and targets”.

[37] He also describes her as a very violent individual who was physically and mentally abusive to all family members. He alleges that she used physical force to hurt Adriana, such as dragging her by the hands and forcefully throwing her on the couch. She would have damaged things in the household by smashing and destroying plates and electronic devices. She would also use physical violence against him which included the incidents of October 2012 when she would have caused bodily harm by striking him with a computer mouse and keyboard. The abuse to Adriana, his son and himself also included “… verbally and mentally abused, humiliated, offended discriminated and intimidated…’.

[38] He also suggests that she is negligent in how she cares for Adriana. He states that she puts her at risk by leaving her alone inside and outside the home for prolonged periods without proper supervision. He opines that the Applicant has not been beneficial to Adriana’s best interests and has not promoted her safety and wellbeing. This is said to have severely impacted on the child.

[39] He maintains that the Applicant has historically excluded him from decisions for the child and provides examples which the Court understands occurred prior to the separation in 2012, which includes, baptism in another religion, modifying the child’s name, dual citizenship and changing schools. He notes that this has continued up to now. He notes that from October 2012 to January 2021, the Applicant allowed only one overnight access to his home on March 6, 2020. His view is that he has been unjustly excluded from making decisions relating to the child.

[40] The Respondent also challenges the March 14, 2013 separation agreement. He maintains that he did not understand the terms by reason of language issues. He describes it as “unfair”, “biased”, and the product of “dishonest negotiation”. He states that he was “pressured” and “forced” by the Applicant to sign it.

[41] He denies having assaulted and bullied the Applicant.

[42] The Applicant agrees with the proposition that the decision-making responsibility be shared between the parties but is asking to be vested with the final say if they are unable to agree.

[43] With respect to parenting, her view is that she should remain the primary caregiver with parenting time for the Respondent at a minimum of two weekends per month from Saturday to Sunday. She proposes that this be increased from Friday to Sunday in accordance with the child’s views and preferences. She also suggests a provision under which the parties may agree to further parenting for the Respondent.

[44] In support of her position, the Applicant notes through her affidavit evidence that she has been Adriana’s primary caregiver since birth and that she has been thriving in her care. She has looked after the child’s various needs which includes medical, dental, education and numerous activities. Over the years, she has fostered and supported Adriana’s many interests. They have a very close bond and share many things. She is always there to comfort her daughter. Adriana feels secure in her care.

[45] She describes Adriana as being a healthy child with no special developmental or medical needs. However, she indicates that she requires structure and routine. She does not like to vary from her routine.

[46] The Applicant describes the Respondent in fairly negative terms, namely that he is a bully and very “directive” to her. She is unable to have a conversation with him as he subjects her to the same allegations while in person to the point of verbal abuse. She denies the allegations made by him in these proceedings. She maintains that he makes unfounded allegations including child abuse and family violence. He has followed through with his claim for 50/50 parenting if she sought proper child support. He is doing this to punish her.

[47] She rejects the suggestion that she impeded the Respondent’s relationship to the child. She notes that he was aware of every decision and action relating to her education, religion, non-emergency medical care and extracurricular activities. He did not raise any such concerns prior to her bringing this Application.

[48] She also denies having refused overnights as provided for under the March 14, 2013 separation agreement. Her position is that he never sought or implemented his parenting time. She provides the following reasons for this:

• the visitation schedule was not strictly followed;
• he did not reside close to their home;
• he worked night shifts;
• he sought time with Adriana at his convenience;
• he would attend her home to visit the child when he wished; she asked him to stop attending her home at one point but he was offended and insisted on continuing to do so; she let him continue in order to keep the peace;
• she would drop off the child at his home for a few hours during weekends; and
• he did not have a separate room for the child until December 2019; this was a term provided for in the separation agreement.

[49] She dismisses the Respondent’s assertions with respect to the validity of the March 14, 2013 separation agreement. She notes that it is in plain and easy to understand language. He chose not to seek independent legal advice. Furthermore, they both acknowledged understanding their respective rights and obligations, the nature and consequences of the agreement, that it was fair and reasonable, that they were not under any undue influence or duress and were signing same voluntarily. She also outlines the various contracts held by the Respondent with the Government of Canada, before and after signing the agreement in support of his ability to understand.

[50] The Court was also provided with a copy of the Voice of the Child Report dated February 17, 2021 authored by Clinical Investigator Victoria Hasbani who interviewed the child Adriana privately on two occasions via video platform. The Court notes the following from this report:

• Adriana is described as engaged, asked appropriate questions, able to follow the interview process easily, calm, took her time to answer questions and was thoughtful in her responses;
• described her mother as being really nice; enjoys spending time together; felt they had a close relationship; an 8.5/10;
• described her father as really nice and funny; had a close relationship; an 8/10;
• she does not feel stress or worried about issues between her parents; she had tried to fix the situation in the past but it never worked, so she gave up; at times she felt caught in the middle; she sometimes felt pressure;
• in terms of the current schedule between her parents, she thought it was good for now; she had just started to sleep over at her father’s and thought it was a good way to get used to it;
• she believes her mother and father would support her if she wished to spend more time with her father;
• she thinks that it is a good thing that her parents leave her to decide whether she wants to spend more time with her father;
• she appreciated that the current schedule was pretty straight forward and she did not want it messed up (confusing);
• she felt it was a good one for now, and thought maybe, slowly, she will spend more time with her father;
• she did voice concern about the distance from her father’s to school as it related to weekday time with him;
• she had no trouble with either parent, she felt safe and comfortable in both homes, although she was still getting used to spending time in her father’s home;
• she was of the opinion that spending increased time with her father was up to her, something she felt good about;
• she cherished her relationship with both parents and wanted to move slowly towards spending more time with her father; and
• she did not disclose any concerns or worries when in care of either parent.

Discussion

[51] Having considered the circumstances and principles, the Court is of the view that the most favourable and appropriate parental regime for the child Adriana is the plan put forth by the Applicant mother. Her proposal is found to be more consistent with her best interests. It provides for stability and flexibility which are, from the child’s perspective, seen by the Court as two fundamental pillars needed to foster her physical, emotional and psychological safety, security and well-being.

[52] The Court’s finding is based on the following considerations:

1. The history of care of the child is a significant factor in the Court’s decision. Adriana is 12 years old and turning 13 on September 22, 2022. While there is much debate as to why, the undisputed reality is that she has been under her mother’s primary care since birth. This is true both prior and after separation in 2012. Being under her mother’s primary care has been and continues to be part of her reality, Such a longstanding and deeply rooted parental structure should not, from the child’s perspective, be easily disturbed as sought by the Respondent father who is asking 50/50 equal parenting time coupled with 200 weekends as compensation for lost time from 2012 to now. This entails the child being removed more than 50% of the time from the care of the parent who has primarily cared for her since birth. This proposal is contrary to the child’s need for continuity and stability and not in keeping with her best interests.

2. The significance of stability for Adriana is also grounded on what the Applicant refers to as her need for routine. This need is reinforced by the content of the Voice of the Child Report wherein the clinician mentions some of the child’s thoughts, namely “... the current schedule was pretty straight forward and she didn't want it messed up (confusing)...”, “... maybe, slowly she will spend more time at her father’s…”, “current schedule was good for now…”, “... she just started sleeping over at her father’s and it was a good way to get used to it”.

3. Adriana is described by all in very positive terms. She is doing well in school and involved in a number of activities including competitive dancing. She has a number of different interests. She is healthy. The only concern noted by the Court is the reference in the Voice of the Child Report to the conflict between her parents and the impact on her. She told the clinician that, “... this made her feel awkward and upset…”, “...she acknowledged sometimes feeling caught in the middle and had mixed emotions as a result…”, “... like sad, stressed, most of the bad feelings, or something in between…”. However, she also stated, “...she didn’t worry too much about it though…”. The fact that Adriana is doing well and thriving under the existing primary parenting by the Applicant weighs in favour of maintaining same in the context of a soon to be 13 year old child.

4. Looking at the longstanding history of conflict and animosity between the parties, the Court is concerned that equal shared parent would inevitably directly and indirectly increase their interaction and in turn fuel this unfortunate reality. In turn, this would probably expose Adriana to what she describes as “feeling caught in the middle” and “sad and stressed”. As noted by Justice Murray in Jackson v. Jackson, [2008] O.J. No. 342:

   “[23] Research around the world underscores again and again that parental conflict can have multiple adverse impacts on children - both in the short and long term….”

5. The fact that Adriana is doing well and by all accounts thriving is supportive of a finding that the Applicant has provided and continues to provide proper care. It reveals a strong probability that she has the ability and willingness to care for and meet the child’s needs.

6. As in every such case, Adriana’s views and preferences are fundamental factors to be considered by the Court in deciding what is in her best interests. Her age and maturity allows for the giving of due weight to same. The Voice of the Child Report confirms her ability to express her thoughts regarding parenting. It is noted that she presented as “... engaged throughout both interviews…”, “...asked appropriate questions and was able to follow the interview process easily…”, “...she was calm..”, “...took her time answering questions and was thoughtful in her responses…”, “...Adriana was able to share her thoughts, opinions and perspective, independent of her parents…”, “...she did not present with alignment with either parent, but had a balanced perspective…”. On a positive note with respect to her relationship with her father, she describes him as “really nice and funny”. She feels that they have a close relationship which she quantifies as an 8/10. She opines that it makes sense for her to spend more time with him. She has no trouble with either parent and feels safe and comfortable in both homes. She feels good spending more time with him and cherishes their relationship. She did not raise any concerns or worries when in the care of either parent. She did however make it clear that she was not, at this time, favourable to equal parenting time between her parents. The essence of her clearly stated preference is that she wanted to move slowly towards spending more time with her father and that she felt good that doing so was up to her. Her stated position is found to be more in keeping with the relief sought by the Applicant. It allows for more parenting time for the Respondent but on a progressive basis and measured in good part by the child’s wishes and preferences. The Respondent’s firm position of 50/50 equal or 40/60 parenting time, coupled with 200 weekends for lost parenting time, is not in accord with Adriana’s views and preferences which is fundamental to her best interests. It does not allow for flexibility and time for the child to adapt to such a significant change in her longstanding reality.

7. Looking at the circumstances as a whole, the Applicant’s position is found to give effect to the principles that Adriana should have much time with the Respondent as is consistent with her best interests. This important principle does not stand for the proposition that parenting time should be looked at in a vacuum and shared equally irrespective of the circumstances. The true measure remains the child’s best interests.

8. Through her proposal for increased parenting time for the Respondent in accordance with Adriana’s wishes, the Applicant shows a willingness to support the development and maintenance of her relationship with the Respondent. As such, she is found to act in her daughter’s best interests notwithstanding their historical animosity and conflict.

9. The Court is mindful of the serious physical and psychological violence alleged by the Respondent against the Applicant. These were described earlier in these reasons. There is no question that family violence is an important factor with respect to a child’s best interests. He describes acts of extreme violence against Adriana, himself and his son. The Applicant denies having done so. As already discussed in these reasons, the Court is unable to make factual and credibility findings based on contradictory and untested affidavit evidence. While the Court cannot exclude such possibility, the circumstances tend not to support the veracity of such allegations. Specifically:

   • the child describes her mother as being really nice, that she had no trouble with either parent and felt safe and comfortable in both homes;
   • it is somewhat suspicious that he would have allowed his daughter to remain in the applicant’s primary care for years following the 2012 separation knowing that she was at risk of such alleged extreme violence; and
   • it is also questionable that he would now support the child being 50 to 60% of the time in the Applicant’s care again being subject of such violence.

10. The Court has also considered the Respondent’s assertions regarding the March 14, 2013 separation agreement which he qualifies as “unfair”, biased”, and the result of “dishonest negotiation” and being “pressured” and “forced” to sign. This again raises issues of credibility which the Court can hardly assess based on the nature of the evidentiary record. A number of factors would however tend to counter these assertions. These include the fact that the Respondent was under contract with the federal government before and after the agreement, the provisions dealing with parenting are straightforward and in plain language and the acknowledgement signed by him. However, irrespective of these issues, the Court is of the view that the March 14, 2013 separation agreement has very little, if any, bearing with respect to what is in Adriana’s best interests some 9 years later. If it was in fact the result of dishonest and undue pressure, the Court’s task is not to try and retroactively correct an historical wrong by tailoring parenting accordingly. The focus remains Adriana’s best interests as it now stands some 9 years later in 2022.

11. Having regard to the decision-making responsibility, while the parties agree to same being shared, the Applicant submits that she should be vested with final say if they are unable to agree following reasonable and considered consideration of their respective views. The proposition that the parties would be jointly tasked with making important decisions for Adriana raises concerns for the Court. There is no question that both care for her and are intent on acting in her best interests. Unfortunately, the evidence discloses a long standing and deeply rooted inability to cooperate. This relationship is marked with animosity and high conflict. The Court is reminded of the following caution given by the Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275, regarding such high conflict matters: “[11]... hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another…”

    In absence of such evidence, the Court is of the view that the decision-making process suggested by the Applicant is in the child’s best interests. It is more likely than not that shared decision-making without more will expose Adriana to conflicts relating to important decisions. While given the final say, the intent is for the Applicant to give due and reasonable consideration to the Respondent’s position with respect to the decisions needing to be made.

Ongoing Child Support and Special or Extraordinary Expenses

[53] Based on the Court’s decision not to grant shared parenting time of at least 40% to the Respondent, his monthly child support will be in accordance with the s. 3 of the Child Support Guidelines presumptive rule which provides that the amount is as set out in the applicable table, according to the number of children and the payor’s income. The most recent information is the 2021 T4 which shows an income of $148,709. The table amount for such an income is $1,289 per month.

[54] With respect to s. 7 special or extraordinary expenses, the parties agree to share those equally. They also agree that dancing and tutoring are necessary in relation to the child’s best interests and are reasonable. Furthermore, they both support the proposition that they would share further expenses agreed upon. However, the Respondent is opposed to the Applicant’s proposition that a set amount of $212 per month be paid by him for dancing and tutoring. The Court understands that the sum of $212 per month represents 50% of the monthly costs associated to these two activities, namely $167 for dance classes/competitions/supplies and $45 for school/tutoring.

[55] The Court is of the view that the Applicant’s proposal is reasonable and necessary as it provides needed certainty in managing the parties’ interactions and dealings on such issues. This in turn reduces the risk of conflict which is, in the end, in Adriana’s best interests.

[56] The next issue relates to the provisions as to when Adriana’s entitlement to support from the Respondent will terminate. The parties agree on most of these terms but disagree with respect to age and whether it should continue following the Respondent’s death.

[57] The Court finds that it is fit and proper to impose a term that the Respondent’s support obligations towards Adriana shall continue following his death if he dies without security being in place and thus, failed to make adequate provision for her support.

[58] With respect to the age factor, the Court finds that Adriana’s entitlement to support should fundamentally be governed by sec. 31(1) of the Family Law Act which reads as follows:

Sec. 31(1): Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.

[59] So that 18 is the pivotal age. The Court will not extend the age to 23 as sought by the Applicant. She will remain entitled to support from the Respondent once over 18 if she is unable to become self-supporting due to illness, disability, education or other causes. This may extend well beyond the age of 18 if she remains entitled under sec. 31 FLA . (See Welsh v. Welsh).

[60] Finally, the parties have agreed on final orders regarding insurance, benefits and the child’s post-secondary RESP. The Court will order accordingly.

Conclusion

[61] The Court therefore makes the following final Orders:

Parenting

A. Decision-Making Responsibility

1. The Parties shall have joint decision-making authority and will make important decisions about their child Adriana’s welfare together, including decisions about Adriana’s:

   a. health, including major non-emergency health care;

   b. education;

   c. culture, language, religion, citizenship, and spirituality; and

   d. significant extracurricular activities.

2. The Parties shall consult with each other in respect of the important decisions referred in paragraph 1 above. The information/ideas shall be exchanged on Our Family Wizard. However, if the parties cannot agree within 14 days of the initial consultation, the Applicant mother shall then be at liberty to make the decision and shall advise the Respondent father of her decision. It is understood that she must give due and fair consideration to his view and opinion in making the final decision. Notwithstanding any opposition or disagreement by the Respondent father to the Applicant’s decision, her decision shall prevail.

3. With respect to travel documents (renewal of passports, travel consents, and visas), the Applicant mother shall provide the Respondent father with 45 days notice of any consent/signature required. If he refuses to sign then, as the person with final decision-making responsibility for Adriana, the Applicant mother shall be permitted to complete the required travel documents (renewal of passports, travel consents, and visas) without the written consent of the Respondent father and to travel internationally with Adriana without the Respondent father’s written consent.

B. Parenting Time

4. The parenting time with Adriana shall be allocated as follows:

   a. Adriana’s parenting time will primarily be with the Applicant mother;

   b. Adriana’s parenting time with the Respondent father will be as follows:

   i. A minimum of two (2) weekends a month from Saturday at 11:00 a.m. to Sunday at 5:00 p.m. The scheduling of the weekend parenting time will take into account the Respondent father’s work schedule;

   ii. The parties may increase the weekend parenting time from Friday after school until Sunday at 5:00 p.m. according to Adriana’s wishes and preferences. This scheduling will also take into account the Respondent father’s availability/shift work schedule.

   iii. During his parenting time, the Respondent father shall pick Adriana up from school, as required, and shall bring her to and from extracurricular activities (i.e. dance classes/training on Friday, Saturday, Sunday).

   iv. There shall be further parenting time as agreed upon by the parties and in keeping with Adriana’s views and preferences.

C. Communication

5. The parties shall communicate by Our Family Wizard Application, with the expectation of emergency situations. They shall respond to reasonable requests within 48 hours of the requests. They shall share the costs, if any, of the Family Wizard Application, equally.

Child Support and Expenses

6. Retroactive Child Support (Period of January 1, 2016 to December 31, 2021)

i. The Respondent father shall pay the Applicant mother the amount of $31, 434 as retroactive child support for the child Adriana, born on September 22, 2009 for the period of January 1, 2016 to December 31, 2021.

ii. This amount is to be paid by the Respondent father to the Applicant mother on or before September 30, 2022.

iii. If the amount is not paid on or before September 30, 2022, this support order may be filed with the Family Responsibility Office and shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order shall be issued.

7. Ongoing Child Support and Special or Extraordinary Expenses (period commencing January 1, 2022)

A. Ongoing Table Account

i. Starting January 1, 2022 and on the first day of each month thereafter, the Respondent father shall pay to the Applicant mother support for the child Adriana Vasileski, born September 22, 2009, in the amount of $1,289 per month. This amount is based on the Respondent father’s income of $148,709 per year, which is the most current information. The amount is in accordance with the Child Support Guidelines.

B. Adjustments

i. The Respondent father shall provide disclosure of his current income to the Applicant mother by May 1 in each year starting in May 2023;

ii. The disclosure required to be provided by the Respondent father includes a copy of his most recent income tax returns, together with all schedules, attachments and slips, and any notice of assessment or reassessment provided by the Canada Revenue Agency;

iii. the parties shall use this information to adjust the table amount of child support payable;

iv. Any change in the table amount shall commence on July 1st of each year.

C. Set amount for Special and Extraordinary Expenses

i. Starting on January 1, 2022 and on the first day of each month thereafter, the Respondent father shall pay the Applicant mother support for the child Adriana Vasileski, born September 22, 2009, in the monthly amount of $212 for his share of the following special or extraordinary expenses:

(a) Extracurricular expenses of dance classes/competition/ supplies: $167 per month.

(b) school/tutoring expenses: $45 per month.

ii. The Applicant mother shall provide the Respondent father with receipts confirming the amount and payment of the above noted set expenses, on a monthly basis.

D. Additional Special or Extraordinary Expenses: (Other than post-secondary education)

i. The Parties shall share equally (50/50) the costs of any additional special or extraordinary expenses (other than post-secondary) that they both consent to in advance, in writing. Neither party shall unreasonably withhold consent to such expenses.

ii. The party paying for such expenses shall provide the other with receipts, confirming the amount and payments, on a monthly basis.

E. Future Special or Extraordinary Expenses: Post-Secondary Education

i. The parties shall each be responsible for and shall pay 50% of Adriana’s total post-secondary education expenses, including but not limited to tuition, books and supplies;

ii. The parties acknowledge that they have been contributing to a Registered Education Savings Plan (RESP) for Adriana and that the current amount of the RESP is approximately $43,643;

iii. The parties shall each continue to contribute to the RESP in the amount of $50 per month by no later than the third day of each month, They shall continue to do so until Adriana commences post-secondary education. In the event that either party fails to do so, the mandatory monthly $50 contribution shall constitute a child support payment enforceable by the Family Responsibility Office. Upon receipt of the payment from FRO, the amount will be immediately remitted to the RESP;

iv. Adriana’s post-secondary expenses shall be paid in the following manner:

(a) Commencing in the first year, predating Adriana’s commencement of post-secondary education and each year by June 1, the parties shall determine the amount required per year and the amount to be withdrawn from the RESP. In the event that the parties are unable to agree to the amount to be withdrawn from the RESP, then the amount of the withdrawal shall be the total amount of the post-secondary expenses to a maximum of 20% of the RESP value which includes investments, grants and growth.

v. On the condition that the parties continue to contribute equally to the RESP (i.e. $50 per month), then the parties shall first apply the agreed upon RESP withdrawal to these expenses. The parties shall then each pay 50% of any remaining costs. These payments shall be made directly to the institution and/or Adriana;

vi. If one party fails to make the mandatory $50 monthly contributions, and these are not enforced by FRO, then the annual RESP withdrawal/payment exceeding $43,463 will be attributed to the compliant party and the non-compliant party will be required to make their contribution solely from their own funds; and

viii. Any funds which are remaining in the RESP upon Adriana completing her post-secondary education shall be remitted to Adriana to be used at her direction.

F. Benefits

i. As per the Agreement filed with the Court, the parties shall maintain Adriana as a beneficiary of the medical, extended health and dental coverage through their respective employment for as long as it is available to her or him. The parties shall:

(a) Arrange for their respective insurance companies to make direct payments, where possible;

(b) promptly submit receipts given to him or her to their respective insurers; and

(c) if the insurance company reimburses the funds to the party, who did not pay for the expenses, then this party who did not pay for the expenses shall immediately advise the party who paid for the expense, forward the correspondence from the insurance company, and transfer the funds via e-transfer.

G. Insurance

i. The Applicant mother has an interest in a policy through her employment and a private policy. She has not borrowed against the policy and the full face value of the policy is available and unencumbered. As long as child support is payable, and as long as the Applicant mother continues to receive coverage under this policy through her employment she shall:

(a) keep the policy in force;

(b) not borrow against the policy and shall ensure that the policy remains unencumbered;

(c) designate and maintain Adriana as the beneficiary of the proceeds of the policy; and

(d) appoint a third party, to receive the insurance in (c) above, as trustees for Adriana;

ii. The Respondent further has an interest in a policy through his employment. He has not borrowed against this policy and the full face value of the policy is available and unencumbered. As long as the Respondent father continues to receive coverage under this policy through his employer, he shall:

(a) keep the policy in force;

(b) not borrow against the policy and shall ensure that the policy remains unencumbered;

(c) designate and maintain Adriana as the beneficiary of the proceeds of the policy; and

(d) appoint a third party, to receive the insurance proceeds in (c) above, as trustee for Adriana.

H. Termination

i. Child support terminates for Adriana when:

(a) Adriana ceases to be entitled as provided under sec. 31 of the Family Law Act;

(b) Adriana no longer lives with the parties (“lives” includes Adriana living away from home for school, summer employment or vacation)

(c) Adriana turns 18, unless she is unable to become self-supporting due to illness, disability, education or other causes;

(d) Adriana becomes self-supporting;

(e) Adriana obtains one post-secondary degree or diploma;

(f) Adriana marries;

(g) Adriana dies; or

(h) The Respondent father dies, provided security is in place at the time of his death meaning he has made adequate provision for her support.

I. Enforcement

i. Unless the support is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall pay them to the person to whom they are owed. A support deduction order shall be issued;

ii. The parties shall provide to the other party and the Director of the Family Responsibility Office notification of any change in address or employment, including full particulars about the change, within ten (10) day of the change taking place; and

iii. This order bears interest at the post-judgment interest rate set out in the Courts of Justice Act of _____% per year effective from the date of this order. A payment in default bears interest only from the date of default.

[62] The parties are directed to discuss and attempt to resolve the question of costs for these proceedings. If unable to agree, each party shall file brief submissions setting out their respective positions as to costs. The submissions shall not exceed 3 pages. The Applicant mother is to provide a copy of her counsel’s Bill of Costs. This is to be filed with the Court on or before May 13, 2022.

[63] Counsel for the Applicant is asked to draft a final order in accordance with the terms set out in these reasons and to file same for the Court’s review and signature.

Released: April 8, 2022

COURT FILE NO.: FC-13-1978-2 DATE: 2022/04/8 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: IVA VASILESKI Applicant – and – GOCE VASILESKI Respondent Ruling Laliberte J. Released: April 8, 2022