COURT FILE NO.: FC-14-FS049081-0001

DATE: 2023/07/10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

CHERYL LYNNE EVANS

Applicant

– and –

ROBERT MACLAREN EVANS

Respondent

Jennifer Eensild, Counsel for the Applicant

Self-Represented

HEARD: April 17, 18, 19, 20, 21, 24, 25, 26, 27, and 28, 2023

The honourable justice L. Madsen

reasons for judgment

I Overview

1. This Motion to Change, which was heard as a trial, was brought by the Respondent, Robert Evans (“Mr. Evans”), in relation to the Final Order of Goodman J. made July 22, 2016 (the “Final Order”). The Motion to Change is opposed by the Applicant, Cheryl Evans (“Ms. Evans”).

2. In his Motion to Change (“MTC”), Mr. Evans seeks changes to the residential schedule of the parties’ child, “C.”, who is 13 years old; changes to the ongoing child support arrangements; retroactive adjustment (and repayment) of child support from January 1, 2019 to the present; and a dispute resolution mechanism to assist with parenting issues and further support adjustments. Mr. Evans also seeks an order to implement the pension sharing provision of the Final Order and financial compensation in respect of the delay in receiving his share of that pension.

3. In her Response to Motion to Change, Ms. Evans seeks final sole decision-making;continuation of the existing holiday schedule; retroactive child support including retroactive special expenses; an order that no ongoing child support be payable based on the parties having similar incomes; and an order that section 7 expenses be shared equally.

4. The parties resolved issues related to the regular schedule in advance of trial, and the holiday schedule during trial. Those terms are set out in the order below. Only issues related to decision-making, ongoing and retroactive child support, pension implementation, and dispute resolution remained for determination at trial.

5. For the reasons and on the terms set out below, this court orders that:

a. Ms. Evans shall have sole decision-making authority on major parenting issues including education, health, religion, and major extra-curricular activities;

b. Mr. Evans shall pay to Ms. Evans $7,609 on account of retroactive table support and section 7 expenses from January 1, 2017 to June 30, 2023, payable at a rate of $500 per month commencing August 1, 2023;

c. Commencing July 1, 2023, Ms. Evans shall pay ongoing monthly child support to Mr. Evans in the amount of $175 per month, based on her income of $128,505 (employment income of $106,005 and estimated gross rental income of $22,500) and Mr. Evans’ income of $106,000 (imputed employment income of $90,000 and estimated gross rental income of $16,000), the shared parenting arrangement, and the implementation of section 9(a), (b), and (c) of the Federal Child Support Guidelines, SOR/97-175, as am., (the “Guidelines”).

d. The parties shall share special and extraordinary expenses as further detailed below;

e. No further steps are required from Ms. Evans in relation to the transfer of Mr. Evans’ share of her pension under the 2016 Final Order; and

f. Except as set out in paragraph 154 herein, all other claims are dismissed.

II Brief Background

6. Mr. and Ms. Evans were married on June 29, 2002 and separated on September 15, 2013. They are divorced. They have one child, “C.”, who currently resides with the parties on a week-about basis.

7. The parties initially resolved matters arising from their separation by Minutes of Settlement, which were incorporated into the Final Order of Goodman J. dated July 22, 2016.

8. Key terms in the Final Order included joint decision-making (para. 3); weekend/midweek parenting time for Mr. Evans (para. 5); child support payable by Mr. Evans in the amount of $639 per month based on an estimated income of $70,000 (para. 10); proportionate sharing of section 7 expenses if agreed to in advance; the exchange of income tax returns and notices of assessment by July 1 each year (para. 15); and the parties signing documents to implement a pension rollover from Ms. Evans’ pension to a Locked in Retirement Account (LIRA) in Mr. Evans’ name.

9. Following the Final Order, C. resided with the parties as contemplated under the order, except for a period between April and August 2020 (early COVID-19) when he resided on a week-about basis. The Final Order was not modified at that time. In September 2020, Ms. Evans sought to return to the court-ordered schedule and, against Mr. Evans’ objection, the parties did so.

10. On June 1, 2022, the parties agreed to a week-about schedule on a temporary basis. That change was made final in the November 24, 2022 Order of Piccoli J.

11. Mr. Evans paid child support for a period of time. The amounts varied. Sometimes he paid in accordance with the order; sometimes he paid more than what the order required; and sometimes he did not pay at all.

12. In 2019 Mr. Evans stopped paying child support when the child resided with the parties on a shared basis for the summer. Ms. Evans advised him that she expected child support to resume in September 2019. Mr. Evans told her he would not pay as she was now living with another man and he would not “subsidize” her lifestyle. Ms. Evans filed with the Family Responsibility Office (FRO), reported the unpaid child support, and enforcement began in January 2022.

13. The parties have had considerable conflict since the Final Order. Mr. Evans says Ms. Evans has made unilateral decisions without his input (such as returning to the court-ordered schedule in September 2020). Ms. Evans says Mr. Evans has routinely scheduled activities on her time without consultation or consent. She also says he incurs all manner of expenses for the child without her consent, many of which do not constitute special expenses, expecting to be reimbursed. Parenting coordinators have twice been retained without success.

14. Ms. Evans works as a T4 Communications/Public Relations professional. When the Final Order was made in 2016, she earned $82,817. As at trial, she earned employment income of approximately $106,005.00 in addition to rental income. Her gross income in 2022 was $128,505.

15. During the trial, Ms. Evans disclosed that she was in the process of being terminated without cause from her employment due to a restructuring, in which she declined, for professional reasons, to accept the alternate position made available to her at a similar rate of pay. Severance package negotiations were underway. She understood that the minimum severance period she would receive would be 28 weeks, but had retained counsel in an effort to improve upon that. She stated that she is prepared to have ongoing child support determined in this trial on the basis of her total 2022 income.

16. Ms. Evans has a new partner, Karl Ball, to whom she is engaged. Mr. Ball has three adult children.

17. Mr. Evans worked in the technology sector after graduation from university in 2000, and held a series of employment positions between 2000 and 2015, earning income in the range of $80,000 to $100,000. In approximately 2016, he started his own company, with the support of a local “incubator” program which assists such “start-up” companies. He created “Netbeds Inc.” also known as “Backpacker College” (“the company”). Although the company secured investment partnerships, and although Mr. Evans’ Line 150 income was approximately $120,000 in 2017 and 2018, the company has struggled, ultimately ceasing operations in April 2022. Mr. Evans is the Director and majority shareholder of the company. Initial high hopes [the business plan entered in evidence aspired to revenues exceeding 1 billion dollars in the third year] were not met.

18. Mr. Evans testified that he is actively looking for work, hoping to find employment paying between $70,000 and $150,000.00 per year. He testified that he is capable of earning in that range. He stated that in January 2023, he hired a company called “Career Joy” to assist him in finding work. No witness was called from Career Joy.

19. The company continues to exist (although is not operating) and is pursuing a sizable lawsuit against a supplier (the Statement of Claim seeks $5.4 million plus punitive damages), as well as a claim against the Canada Revenue Agency (“CRA”) seeking in excess of $200,000 (no documentation was tendered at trial in relation to this claim). Mr. Evans has a shareholder account with the company from which he says he is owed approximately $200,000, and which the company is currently unable to pay. The accountant testified that this amount could be withdrawn from the company tax-free if either the lawsuit or claim against the CRA bear fruit.

20. In addition to running Netbeds Inc., Mr. Evans and his partner, Dr. Jordana Garbati, have rented out their home to secure additional income.

21. The parties did not disclose the current or historical incomes before the MTC was brought. They also did not adjust table child support payable although required to do so under the Final Order. Mr. Evans attempted to reconcile expenses he characterized as section 7 expenses, by producing “spreadsheets” annually from 2018 onwards. Many of the expenses listed were not, in fact, section 7 expenses, and I accept Ms. Evans’ evidence that with few exceptions, she did not consent to them. The spreadsheets did not set out Mr. Evans’ income and were not accompanied by income disclosure. Ms. Evans did not seek contributions to section 7 expenses, other than orthodontic expenses.

22. Mr. Evans says that, in considering ongoing table support and section 7 expenses, he has paid in excess of what the Final Order provided for and well in excess of what his actual income would have required, resulting in what he says is an overpayment by him of approximately $50,000. He seeks to adjust support back to January 1, 2019, when his income dropped. (He does not wish to include 2017 or 2018, years in which his income exceeded the $70,000 estimate in the Final Order by over $50,000 per year.) He suggests that ongoing support should be paid on a set-off basis under section 9 of the Guidelines based on Ms. Evans’ 2022 income of $128,505 and his Line 150 income of $33,298, in the amount of $824 per month.

23. Ms. Evans says that while Mr. Evans’ earned income has dropped, he is demonstrably capable of earning considerably more than his Line 150 income. She seeks to impute income – initially requested at $70,000 per year, in closing submissions set at $100,000 per year, and in her pleadings framed as child support in accordance with an imputed income to be determined by the court. In response to the request for retroactive adjustment, she seeks adjustment back to January 1, 2017, when Mr. Evans’ income increased. On that basis, she says she is owed approximately $17,000 in retroactive child support inclusive of section 7 expenses. In her retroactive calculations, she does not account for any child support that may be owed from her to him under section 9 of the Guidelines. Ms. Evans seeks an order that no prospective child support should be paid on the basis that if income is imputed to Mr. Evans, their incomes would be “similar.”

24. The parties have had great difficulty implementing the pension transfer term of the Final Order. As at the trial, almost seven years after the Final Order, and ten years after separation, Mr. Evans’ share had still not been rolled over into the Locked in Retirement Account (“LIRA”) that he had established. However, during trial, it became clear the required amount has finally been paid by the pension trustee, and that as at the date of the trial, “the cheque was in the mail.” Mr. Evans says Ms. Evans was largely the cause of the delays with respect to the pension transfer. He seeks compensation from her and from the pension administrator for lost appreciation, interest, and “punitive damages.” The pension plan administrator was not named as a party in this proceeding.

III Disclosure

25. The parties did not exchange tax returns or notices of assessment as required by the Final Order. Those documents were only exchanged in connection with the Motion to Change. It appears that Mr. Evans requested Ms. Evans’ disclosure in late 2020 (while not producing his own). Ms. Evans stated she would disclose but sought a timeline for mutual exchange, and a secure mechanism to share documents (other than email).

26. Mr. Evans did not disclose his 2020 or 2021 Income Tax Returns until during the trial when I ordered him to do so. This is basic disclosure required in any proceeding related to child support. Initially Mr. Evans testified that the documents were “under review” by the CRA and that he had had to refile. Later he stated that the preparation of the adjustment request by the accountant was “underway”. The supposedly “corrected” version of the 2021 Income Tax Return was not put before the court.

27. At no point before the trial did Mr. Evans produce his corporate income tax returns, although clearly relevant and although ordered to do so by Braid J. on January 11, 2023. In cross-examination, he asserted that these documents were “private” and that Ms. Evans was not entitled to those documents. Later in the trial (and in his written closing submissions), he claimed that the documents had in fact been made available to counsel through a shared Google Drive, but when invited to demonstrate that, he was unable to do so. Mr. Evans attempted to tender those corporate income tax returns on the ninth day of the ten-day trial. I did not admit the documents at that late stage.

28. Ms. Evans also did not produce an updated Financial Statement for Trial, and her Financial Statement sworn December 22, 2022 did not disclose her partner’s income (although relevant to child support under section 9 of the Guidelines).

IV Witnesses and Credibility

Mr. Evans’ Witnesses

29. Mr. Evans testified and called the following witnesses: his partner, Dr. Jordana Garbati; his mother, Sheryl Evans; and Atif Ansari, former CFO of Netbeds Inc.

30. Mr. Evans: This court had difficulty with many aspects of Mr. Evans’ testimony. Mr. Evans presented as unjustifiably angry and indignant throughout the trial. I found him to be dismissive of his obligations under Goodman J.’s Order, and disrespectful of Ms. Evans. He was repeatedly evasive when asked about his income, what disclosure was made, and when it was provided.

31. Mr. Evans was less than forthright about what amounts he paid as child support and when he paid those amounts. For example, asked about whether he paid $1,089 per month in 2017 (the table support on his reported income), he was evasive, finally answering that “in the aggregate”, that’s what Ms. Evans received. Mr. Evans was also inconsistent about whether consent was obtained in respect of activities and section 7 expenses. While he suggested that Ms. Evans was “willfully defiant” with respect to the Final Order, I find that to more aptly describe Mr. Evans’ own conduct.

32. Mr. Evans had little or no insight into his role in the conflict between the parties and the effects of placing the parties’ son squarely in the middle.

33. Where Mr. Evans’ testimony differed from that of Ms. Evans, I find Ms. Evans’ evidence to be more reliable.

34. Dr. Garbati: The court had no difficulty with Dr. Garbati’s evidence. She testified in support of Mr. Evans but did so in a balanced, measured manner. It is clear that she cares about the child and would like to see more harmonious relations between Mr. and Ms. Evans.

35. Sheryl Evans: The court also had no difficulty with the evidence of Sheryl Evans, Mr. Evans’ mother. Although her testimony was of little probative value, I find that she was candid and forthright with the court. When asked by Mr. Evans about whether she had any concerns about him as a father, she stated that she did not, except in respect of how he might show his frustration. I found this to be balanced and credible.

36. Atif Ansari: Mr. Ansari is a “fractional CFO” who worked with Netbeds for a period of time until March 2022. His evidence regarding Netbeds Inc., and the financial challenges faced by the company, was helpful and relevant. His responses were direct and even-handed. He did not appear to be “aligned” in any way with Mr. Evans, and, while there was an unpaid account outstanding from Netbeds, I found no trace of this impacting his evidence in any way. I accept his evidence unless stated otherwise below.

Ms. Evans’ Witnesses

37. Ms. Evans testified and called the following witnesses: Angela Murie, counsellor for the child; Karl Ball, her partner; Abby Ball, her stepdaughter; June Taylor, her mother; Catherine Taylor, her sister; and Lori Graham, an employee of the pension plan administrator.

38. Ms. Evans: On the whole, I found Ms. Evans to be a credible witness. She answered questions directly and was not evasive. When asked about her view of Mr. Evans, she was candid about the difficulties experienced, and she was able to acknowledge that some steps taken by her could have increased conflict. I did not find material contradictions in Ms. Evans’ evidence, which was forthright. It was evident that she has tolerated considerable verbal abuse from Mr. Evans from the date of the Final Order until trial. On balance, where the evidence of Ms. Evans and Mr. Evans differs, I prefer that of Ms. Evans unless stated otherwise below.

39. Angela Murie: Angela Murie is a counsellor involved with the child C., pursuant to the order of Taylor J. dated November 21, 2022. In the motion which resulted in that order, Ms. Evans had sought Ms. Murie’s involvement in part in order to bring C.’s views and preferences to the court. Ms. Murie testified as a participant expert. I found her to be an impressive witness: thoughtful, compassionate towards both parties, impartial, and focused squarely on C.’s well-being and best interests. Ms. Murie had met with the child three times. She clearly remained open to working with and involving Mr. Evans in the counselling process notwithstanding considerable hostility directed at her by him. Neither party objected to Ms. Murie’s testimony about C.’s statements to her, which I find in any event admissible as set out below.

40. Mr. Ball: Mr. Ball testified credibly as to an event in July 2021 when Mr. Evans attended in anger at his home, and about his observations regarding the impact of Mr. Evans’ conduct on Ms. Evans.

41. Abby Ball: Abby Ball, Ms. Evans’ stepdaughter, also testified regarding the July 2021 incident at the Ball residence. I have no difficulties with that evidence. I accept that she was fearful of Mr. Evans, who, as I find below, acted unreasonably in attending at the home and blocking Ms. Ball in the driveway.

42. June Taylor: Ms. Taylor is Ms. Evans’ mother. Her evidence in chief was by affidavit, and she was cross-examined. That affidavit was generally negative about Mr. Evans and when cross-examined about why she had no positive things to say about him, she stated that “that’s not where we are at.” While I found that to be honest and credible, on balance I did not find her evidence helpful or necessary. Family “cheerleaders” rarely assist the court.

43. Catherine Taylor: Catherine Taylor is Ms. Evans’ sister. She also filed an affidavit in the trial and was cross-examined. As with June Taylor, I found her evidence to be unnecessarily negative about Mr. Evans and not helpful.

44. Lori Graham: Lori Graham works for the pension plan administrator that administers Mr. Evans’ pension with Grand River Hospital. She had not been listed on the Trial Scheduling Endorsement Form, but was called on the consent of both parties given the issues with the pension. As will be set out more fully below, her evidence was helpful in explaining the delays in implementation of the pension term in the Final Order. I found her testimony to be thoughtful and credible. She was able to acknowledge why Mr. Evans would be frustrated with the pension plan administrator, while also clearly explaining that he had an important role in the delays in implementation.

Evidence Generally

45. This was a ten-day trial with 11 witnesses and 127 exhibits, including affidavits. I have carefully and fully considered all of the evidence, whether directly referred to herein or not.

V. Legal Issues and Analysis

46. The issues for determination by this court are the following:

a. Major decision-making including dispute resolution;

b. Retroactive child support and adjustment from January 1, 2017 to June 30, 2023;

c. Ongoing child support, including a determination of current incomes;

d. Remedy, if any, to address the implementation of the pension rollover.

A. Major Decision-Making including Dispute Resolution

Key Terms of the 2016 Final Order

47. The following key terms of the Final Order are in dispute:

48. The Applicant, Cheryl Lynn Evans, and the Respondent, Robert MacLaren Evans, shall have joint custody of the child, namely, C., born [date redacted], hereinafter referred to as “C.”

49. The Applicant and the Respondent will meaningfully consult regarding all major decisions concerning C.’s health, education, and general welfare. In the event of a disagreement, the parties will jointly retain a Parenting Coordinator to resolve the issue. Costs of the Parenting Coordinator shall be paid by the parties equally, subject to the Parenting Coordinator’s discretion to divide the cost differently between the parties.

50. …

51. …

52. The Respondent will have C. in his care as follows:

a. On alternate weekends from Friday after school at 4:00 p.m. until Sunday evening at 7:00 p.m.;

b. Each Wednesday from after school or 4:00 p.m. until Thursday morning at school or at 9:00 a.m.;

c. Such further and other times as agreed between the parties.

6. The Applicant and Respondent agree that it is beneficial for C. to be able attend special occasions with family, and will be flexible to accommodate reasonable requests to change the access schedule.

7. On this Motion to Change, Mr. Evans initially sought to preserve the provision for joint custody (now joint major decision-making), but to put in place a more fulsome dispute resolution mechanism, including a provision that the parties attend arbitration if they are unable to resolve a parenting issue through a Parenting Coordinator (“PC”). He says that the parties have shown sufficient cooperation on some issues to maintain joint decision-making, and to the extent that there have been difficulties, it is because Ms. Evans has been inflexible, has not followed the Final Order, and/or has made unilateral decisions about C.’s schedule or activities. However, in the draft order filed at the conclusion of trial, Mr. Evans for the first time sought final sole decision-making in the event that the parties could not resolve an issue through the PC.

8. Ms. Evans seeks a change to the parenting terms of the order to provide that she has sole decision-making authority after consultation with Mr. Evans on major parenting issues. She states that Mr. Evans has fundamentally misunderstood numerous parenting terms of the Final Order, that he makes unilateral decisions without consulting her, and that he instigates considerable conflict between them. Ms. Evans stated that in his interactions with her, Mr. Evans is lecturing, abusive, and accusatory. She states that she is willing to consult Mr. Evans on major decisions but that they need a tie-breaker to reduce future conflict.

Legal Principles

50. Section 17 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides that a Final Order may be varied on application by either or both spouses. The court must first be satisfied that there has been a change in the condition, means, needs or other circumstances of the child since the making of the parenting order, and in making a variation order shall consider only the best interests of the child. The party seeking the change must show that there has been a material change of circumstances altering the child’s needs or the ability of the parents to meet those needs: see Brown v. Lloyd, 2015 ONCA 46, at para. 77. The change must be substantial and continuing, such that if known at the time, it would likely have resulted in a different order: see L.M.L.P. v L.S., 2011 SCC 64, [2011] 3 S.C.R. 775.

51. Once a material change has been shown, there is an onus on both parties to demonstrate that the outcome they seek is in the best interests of the child. There is no presumption in favour of the existing arrangements: see Persaud v. Garcia-Persaud 2009 ONCA 782.

52. Where the parenting order is varied, the court must do so only in accordance with the best interests of the child. Section 16(3) of the Divorce Act provides that in determining best interests, the court shall consider all factors related to the circumstances of the child. Those factors include but are not limited to: the child’s needs, given the age and stage of development; the strength of the child’s relationship with each spouse; each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; the child’s views and preferences; plans of care for the child; and the ability and willingness of each parent to communicate and cooperate with the other parent.

53. The court must also consider any family violence and its impact on parenting ability, as well as the appropriateness of making an order requiring cooperation where there has been family violence. Under section 2 of the Divorce Act, family violence is defined as conduct that is threatening, coercive or controlling, causing a family member to fear for their own safety or that of a child. That conduct may include harassment, as well as psychological abuse.

54. Exposure to conflict has been called the “single most damaging factor for children in the face of divorce”: see Graham v. Bruto, [2007] O.J. No. 656 (S.C.), aff’d 2008 ONCA 260. See also Mattina v. Mattina, 2018 ONCA 641. Harm can result from direct or indirect exposure to conflict: see Barendregt v. Grebliunis, 2022 SCC 22, at para. 145.

55. Joint decision-making on major parenting issues requires an ability and willingness to cooperate and problem solve for the benefit of the child and to make decisions together without undue conflict or struggle: see Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 194 O.A.C. 106, at paras. 11-16. As set out in Bennett v. Burns, 2018 ONSC 5443, at para. 11, joint custody is more than just a “feel good” label. Joint custody is not ordered on the “hope” that it will improve communication. Just because both parents are “fit” parents, does not mean that joint custody is necessarily the appropriate order. The fact that one parent professes an inability to communicate does not, without more, preclude joint decision-making: see Kaplanis, at paras. 2, 10.

56. Joint custody is not appropriate where the absence of clear decision-making authority will lead to interminable power-struggles, impasse and paralysis. With high-conflict parents, the absence of a “tie-breaking vote” can have devastating consequences for vulnerable children who don’t want to – and shouldn’t have to – get caught in the middle: see Bennett v. Burns, at para. 11. As pointed out in Izyuk v. Bilousov, 2011 ONSC 6451, at para. 504:

In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children - particularly children already exposed to the upset of family breakdown - look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

57. Having said that, courts do not expect communication between separated parents to be easy or entirely free of conflict. Perfection is not required. The issue is whether a reasonable measure of cooperation is in place and achievable, so that the best interests of the child can be assured: see Warcop v. Warcop (2009), 2009 CanLII 6423 (ON SC), 66 R.F.L. (6th) 438 (Ont. S.C.), at para. 94; D.G. v. K.G., 2005 ONCJ 235, at paras. 22-23.

58. In determining whether joint decision-making is appropriate, the court must assess the extent to which such an order will increase conflict or decrease conflict between the parents, as well as whether a parent seeks the order as a mechanism to inappropriately control the other parent. As observed by the court in K.H. v. T.K.R., 2013 ONCJ 418, parents who seek such orders tend to be “rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations” such that joint custody can be “a recipe for disaster … mak[ing] the lives of their former partner and children much more difficult”: at para. 57.

59. While the court encourages and supports alternative dispute resolution mechanisms, such as parenting coordination, mediation, and arbitration, and while section 7.3 of the Divorce Act states that parties shall “try” to resolve issues through a family dispute resolution process “to the extent that it is appropriate to do so,” the processes contemplated under the Divorce Act are defined to include negotiation, mediation, and collaborative law: see s. 2. There is no inclusion of parenting coordination or arbitration in the definition of “family dispute resolution process”. In my view, this is for good reason, as those processes include a decision-making component. This court cannot delegate its decision-making role without the consent of the parties. See R.L. v. M.F., 2023 ONSC 2885, M.(C.A.) v. M.(D.), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (O.C.A.), K.M. v. J.R., 2022 ONSC 111), and Michelon v. Ryder 2016 ONCJ 327.

Application

60. I find that it is appropriate and necessary to change the existing joint decision-making term in favour of an order that Ms. Evans have final decision-making authority, for reasons including, but not limited to, the following:

a. Both parties assert, and I agree, that there have been material changes affecting parenting. As such, I turn directly to considering the best interests of the child.

b. The parties have had a lengthy “trial run” of joint decision-making and it is not working. In the six years since the Final Order was made, the parties have been unable to effectively make joint decisions for the child. Instead, they have been locked in conflict about issues related, in particular, to the child’s regular schedule (which should not, in any event, have fallen under major decisions as a schedule was set out in the Final Order), and the child’s major activities, notably hockey. That conflict, I find, has been largely instigated and perpetuated by Mr. Evans.

c. This is not a case where Ms. Evans is the author of the conflict seeking to exclude Mr. Evans, or where joint decision-making is required to attempt to maintain a “balance of power” between the parents: Roloson v. Clyde, 2017 ONSC 3642, at para. 59. Mr. Evans’ communication with Ms. Evans, whether by text, email, or in person, has persistently been angry, insulting, and destructive. When Ms. Evans does not agree with him, he has shown a pattern of vitriol and bullying behaviour, rather than an effort to resolve matters through discussion. This was starkly in evidence in the record of text and email communication filed with the court. A few examples will suffice:

“Someday he [the child] will know all about you. Shame. He deserves better than being your pawn” [text 09/09/2020]

“…You will be brought to task. As you desire….” [text 10/4/20]

“C. and I resent the fact that you’ve broken our agreement… you are alone in your poor choices” [text 10/18/ 2020]

“Another reminder: All the money you get from me is for him! Stop buying cars for you and Karl, and whatever else you do…. C. deserves better than this! Step up.” [text 11/19/20]

“whatever. You’ve shown everyone your word and agreements are useless.” [text 1/7/21]

“I do not like the idea of my son’s mother having a criminal record being contemptuous on this matter…” (email to Ms. Evans’ counsel during trial)

d. Mr. Evans consistently misinterprets parenting terms in the Final Order, for example, in relation to the regular schedule. When the parties adjusted C.’s regular schedule on consent, on a temporary basis during COVID, in late March 2020, he was unwilling to accept the return of the court-ordered regular schedule in September 2020, upon the resumption of the school year. Instead, he repeatedly asserted that paragraph 6 of the order, which required the parties to be flexible so that C. can be part of special occasions with both parties, was sufficient to require a permanent change to a week-about schedule. Mr. Evans’ communication on this issue was unrelenting and misplaced. He latched on to a partial clause in the order, ignored the balance of the clause, and would not relinquish his flawed interpretation.

e. Mr. Evans has routinely scheduled activities on Ms. Evans’ time with C. without her consent, and in the face of Ms. Evans politely and repeatedly stating that she did not consent to him doing so. For example, Mr. Evans scheduled guitar lessons (with himself as instructor) three times per week, on Ms. Evans’ time, despite lack of agreement. He also scheduled various hockey try-outs and other hockey-related activities on Ms. Evans’ parenting time. In doing so, he would purport, by text or email, to instruct Ms. Evans on her obligations. This shows a fundamental lack of respect for Ms. Evans perspective, her time, and importantly, the Final Order.

f. Mr. Evans misused the parenting coordination process on two occasions. To his credit he did initiate that process, with two different parenting coordinators, but the evidence was that he raised issues outside the jurisdiction of the PCs, such as changing the court-ordered regular schedule (the evidence of Ms. Murie was clear that while PCs may make minor adjustments, they may not change the underlying schedule itself), and issues related to the delays in the pension transfer.

g. Mr. Evans attempted, unilaterally, to change C.’s hockey league from Waterloo to Kitchener, notwithstanding that Ms. Evans and he both reside in Waterloo, and notwithstanding Ms. Evans’ clear position that C. should remain in the Waterloo league. When Ms. Evans did not agree, Mr. Evans simply went ahead and attempted to make the change himself. In doing so, he was untruthful on the enrollment form as to the child’s hockey level.

h. While Mr. Evans loves C., he is not always child-focused. He is focused on being “right,” on Ms. Evans being “wrong”, and on getting his way. For example, when it was clear that C. needed counselling, he insisted, even after a court order had been made (the November 21, 2022 Order of Taylor J.), that C. have counselling with Dr. Pryke, whom the child saw briefly when he was 5 years old, and whom, the evidence was, C. did not even remember. Even after a temporary order was obtained that Angela Murie would provide counselling, that both parties must take him, and that the parties must share the cost, Mr. Evans continued to insist that the counsellor be Dr. Pryke. Mr. Evans then cancelled a counselling appointment for the child that fell on his time, after Taylor J.’s order. This pattern of conduct is not in C.’s best interests. (I note, by contrast, that Ms. Evans testified that she remains open to using Dr. Pryke when the litigation is over. This showed an open mind, a focus on the child rather than on being “right”, and a reasonable approach overall.)

i. Mr. Evans regularly puts the child, C., squarely in the conflict between his parents. For example, in 2020, he prepared a handwritten “Agreement” to change the court-ordered regular schedule to week-about, and had the child sign that purported agreement. Further, he told C. to send his mother a text indicating that he wanted a week-about schedule. A photo of that text, which I do not accept was authored by the child, was in evidence in the trial. Further, Ms. Murie testified that the child has expressed considerable upset about Mr. Evans’ placing him in the middle, speaking poorly about his mother, and bringing him into the litigation. The evidence of C.’s statements is admissible under the state-of-mind exception to the hearsay rule, and was not objected to by either party. Ms. Murie stated in part:

When a child takes on the parents’ burdens – guilt, responsibility, split loyalty, this can lead to a problem… The level of sadness that C. showed when he expressed his deep pain was huge… [Emphasis added.]

j. As Mr. Evans cannot be counted on to shield C. from conflict or involvement in litigation, the decision-making framework must, as far as possible, ensure that this happens.

k. When Mr. Evans does not get his way, he becomes angry and belligerent rather than attempting to resolve the issue peacefully. For example, in July 2021, when the parties disagreed on which weekend the schedule would change from the regular school-year schedule to the summer week-about schedule (causing a question about whether Friday or Sunday was the transition day), Mr. Evans’ response was to attend at Ms. Evans’ home, block Ms. Evans’ stepdaughter, Abby Ball, in the driveway causing fear and anxiety, angrily sit on the doorstep, and create a scene lasting in excess of one hour. I accept Ms. Evans’ evidence that the transition, in accordance with prior practice, was to be on the Sunday rather than the Friday as assumed by Mr. Evans. However, even if Mr. Evans was correct regarding his interpretation of the schedule, his response to the disagreement was disproportionate and inflammatory.

l. There is a history of threatening behaviour in this case which cannot be ignored. Ms. Evans testified that post-separation, when she was residing in the matrimonial home, Mr. Evans entered without her consent, damaged items, broke glass, and stabbed photos of her. While it is now over ten years since this incident, she testified, and I accept, that this, in addition to other conduct, leaves her anxious and fearful in Mr. Evans’ presence. Mr. Evans’ denials were unconvincing.

61. The above is not to suggest that Ms. Evans’ approach has been perfect. At times, she has dug in her heels on issues where she could have been more flexible. (For example, I accept that there was an occasion where she was so frustrated about Mr. Evans scheduling guitar lessons on her time that she did not permit C. to bring his guitar to her home. However, she saw the error of her approach and subsequently purchased a guitar for C.)

62. There was also an allegation that Ms. Evans completed a school form on which she at one time asserted that she was the sole custodial parent. I permitted this form to be tendered, although not previously disclosed, but was unable to conclude from it that Ms. Evans had misstated the parenting framework (Mr. Evans had written on it and it was unclear who filled in what – Mr. Evans, Ms. Evans, or the school). In fact, it appeared to be a pre-populated form generated by the school, not by Ms. Evans. (I note that a different form, related to permission to walk home from school, was completed by Mr. Evans, after the court-ordered schedule resumed in September 2020 and C. was again a primarily resident with Ms. Evans, without consultation with or consent of Ms. Evans.)

63. On balance, I find that Ms. Evans has weathered the onslaught of toxic communication as well as could be expected, and that when she has at times expressed frustration, it has been reasonable to do so. She has stayed child-focused and has tried to work with Mr. Evans. Where there has been disagreement, she has quite reasonably reverted to the language of the Final Order, and has interpreted that Order correctly. She has not put the child in the middle of the conflict. The evidence is that she does not speak poorly of Mr. Evans to the child.

64. Although the Divorce Act permits me to make an order for mediation, and while I am of the view that mediation can almost always be helpful, I am not prepared to order mediation in this case. Mr. Evans has used prior dispute resolution attempts (the PC process) to bully Ms. Evans, and she expresses fear and anxiety about dealing with him directly. He has not shown that he can work positively to resolve issues through a discussion-based process. In this case, a mediation clause is not appropriate.

65. In sum, the raw ingredients of meaningful joint decision-making are not present in this case. As in S.S. v. K.S., above, Mr. Evans has shown himself to be “rights based” and “unbending.” The parties need one parent to make final decisions. C. needs to be kept out of the middle to be protected from conflict. On the evidence, it is clear that it is in C’s best interests that Ms. Evans be the decision-maker on major issues. This will reduce conflict, and provide a more expeditious way for the parties to arrive at decisions on major parenting issues. The terms of this order are set out more fully below.

66. Although the specific decision-making clause proposed by Ms. Evans requires consultation with third parties such as doctors and teachers, I will not require that in the order. On the evidence, Ms. Evans is well capable of making decisions in the child’s best interests and she should be able to do so in the manner she determines, so long as she provides information to Mr. Evans on a timely basis. The parties need less communication, not more.

67. I note that Mr. Evans’ late hour request for sole decision-making, set out in his draft order at the conclusion of trial, was not pled in his Motion to Change, nor was it asserted in his opening statement. It is in any event a non-starter.

68. One final note on this issue: Mr. Evans demonstrated from 2016 to trial, and during the trial, that he has misunderstood the subject matter that falls under major decision-making, believing that final changes to the regular or holiday schedule would be made under that term. I wish to be clear, for Mr. Evans’ benefit, about what does and does not fall under the major decision-making clause:

a. Major issues related to education, health care, major extra-curricular activities (enrollment, but not payment, which would fall under section 7 of the Child Support Guidelines), and religion are included in major decision-making. These are decisions such as which school system and which school the child shall attend; whether the child requires major, non-emergency medical intervention and if so in what form; and whether the child should be enrolled in counselling and if so with whom and for how long.

b. The following issues, among others, do not fall within major decision-making: day-to-day decisions, schedule changes, whether temporary or permanent; the scheduling of extracurricular activities (on the other parent’s time); or the financial aspect of section 7 expenses.

69. Ms. Evans has requested specific language regarding how extra-curricular activities may be scheduled. That language is perfectly reasonable and provides that neither party may schedule activities on the other parent’s time without consent. I have adapted that language somewhat, below, and I have added that neither party is obliged to take C. to any activity to which they have not consented, in advance, in writing. I have also added that only Ms. Evans shall be responsible for hockey enrollment, whether house league or otherwise, given the conflict that has unfolded on this issue in recent years.

70. Mr. Evans’ suggestion in his draft order that he should decide extracurricular enrollment is patently unreasonable in the context of this case and the history of conflict for which he is significantly responsible.

B. Retroactive Child Support/Adjustment

Key Terms of the Final Order

71. The following are the key terms of the Final Order that are sought to be changed in relation to retroactive and ongoing child support, including section 7 expenses:

72. The Respondent, Robert MacLaren Evans, shall continue to pay child support to the Applicant, Cheryl Lynn Evans, commencing August 1, 2016, in the amount of $639 per month, which is in accordance with his ongoing estimated income of $70,000 and the Child Support Guidelines.

73. The Applicant, Cheryl Lynne Evans, and the Respondent, Robert MacLaren Evans, will pay for [C.]’s section 7 extraordinary expenses, as discussed and agreed upon in advance, in proportion to their respective incomes, commencing August 1, 2016, with the Applicant’s proportionate share being 55% in accordance with her 2015 income of $82,817, and the Respondent’s proportionate share being 45% in accordance with his estimated ongoing income of $70,000. The child’s current section expenses include daycare and summer camps (approximately $4,000 per year) and sports ($500 - $1000 per year).

74. The Applicant and Respondent will exchange their Income Tax Returns and Notices of Assessment and/or assessment each year on or before May 15^th, commencing in 2017, and will review the amount of child support and proportionate sharing of section 7 expenses and extracurricular activities on or before July 1 of each year.

Legal Principles

72. To assess the retroactive support/adjustment claims in this case requires consideration and application of legal principles related to a number of issues: child support liability generally; the role and obligation of disclosure; principles governing claims for retroactive increase or decrease in support obligations; principles related to imputation of income; determination of child support in a shared parenting context; and principles governing special and extraordinary expenses. To assist the parties in understanding the basis for my decision, I summarize those principles briefly below. (These principles will also apply to the determination of ongoing child support, considered in the next section.)

73. The following are foundational principles related to any child support claim:

a. The child’s interest in a fair standard of support commensurate with income is the core interest to which all rules and principles must yield: see Colucci v. Colucci, 2021 SCC 24, at paras. 34-36.

b. Child support is considered the right of the child, not the parent. Parents are expected to contribute to the support of their children, commensurate with their capacity to do. Nevertheless, upon receipt of child support, a recipient parent has discretion regarding how to allocate the child support.

c. Child support obligations take effect contemporaneously with residency arrangements. A party ought not await a court order before paying child support that is owed. The obligation to support one’s child exists irrespective of whether a court action has been started. It is a debt that is owed from the moment it ought to have accrued: see Michel v. Graydon, 2020 SCC 24, at para. 79.

d. Child support arrangements flow from the child’s residency, whether those arrangements are consented to or not. That is, where a child spends the majority of his or her time will almost always ground child support liability.

e. The most basic obligation in family law is the duty to make financial disclosure: see Colucci, at para. 50, citing Roberts v. Roberts, 2015 ONCA 450, at para. 11. Conversely, the failure to disclose in a full, frank, and timely manner has been called the “cancer of family law litigation”: Michel v. Graydon, 2020 SCC 24, at para. 33.

f. The failure to disclose annual increases in income and pay the proper amount of child support eliminates any need to protect the payor’s interest in certainty under an order: see Michel v. Graydon, at para. 34.

g. Court orders are binding on both parties. They are not helpful suggestions. Parties are expected to obey court orders until those orders are changed.

74. Principles including the following govern claims to retroactively reduce support obligations:

a. The payor must show a past material change of circumstances.

b. Once a material change is shown, there is a presumption that support will be reduced back to the date of effective notice. The recipient is entitled to rely on the Court Order or agreement in the absence of proper communication and disclosure by the payor: see Colucci, at para. 82.

c. Given the informational asymmetry between the parties, a payor’s success in obtaining a retroactive decrease will depend largely on his or her disclosure and communication: see Colucci, at para. 7. The timing of disclosure will be relevant.

75. Principles including the following govern claims to retroactively increase child support obligations, as summarized in Colucci, at para. 114:

a. The recipient must show a past material change of circumstances. While the onus is on the recipient, any failure by the payor to disclose relevant income information is considered blameworthy;

b. Once the material change is shown, a presumption arises in favour of retroactively increasing child support to the date of effective notice, up to three years before formal notice. Where no effective notice is given, child support is generally only increased to the date of formal notice.

c. The court may depart from the presumptive date of retroactivity where the result would otherwise be unfair. The factors set out in D.B.S. v. S.R.G., 2006 SCC 37 guide this exercise of discretion. A failure to disclose a material increase in income is blameworthy and in that context the date of retroactivity will generally be the date of the increase.

d. Once the court has determined that support should be retroactively adjusted, the amount must be quantified. This is calculated in accordance with the applicable Guidelines.

76. Principles including the following govern the determination of child support under a shared parenting regime:

a. The shared parenting analysis under section 9 of the Guidelines applies where both parents have the child in their care respectively for 40% or more over the course of a year: see R.B.J. v. B.N.R.J., 2020 ONCJ 399, at para. 4, citing Gautier v. Hart, 2011 ONSC 815, at para. 30. The calculation is not undertaken on a month-by-month basis: see Lopatynski v. Lopatynski, 1998 ABQB 981, at para. 22. See also Ellis v. Ellis, [1997] P.E.I.J. No. 119.

b. The 40% threshold is not discretionary. If 40% is not reached, section 9 does not apply. The onus to prove that the 40% threshold has been reached is on the party seeking to invoke it: see R.B.J., at para. 4; Gautier, at para. 61; Huntley v. Huntley, 2009 BCSC 1020, at para. 12. See also E.G. v. D.G., 2022 ABCA 129 at 8.

c. There are several methods of counting time to assess whether the 40% threshold has been reached, including overnights or hours. To reach 40% of the overnights in a year requires 146 overnights or more of the total 365. To reach 40% by counting hours requires 3,504 hours or more of the total 8,760. Which method is appropriate is a discretionary decision having regard to the circumstances of the case: see Froom v. Froom (2005), 2005 CanLII 3362 (ON CA), 11 R.F.L. (6th) 254 (Ont. C.A); Nderitu v. Kamoji, 2017 ONSC 2617, at para. 82; L.L. v. C.M., 2013 ONSC 1801, at para. 23.

d. Where child support is to be determined under section 9 of the Guidelines, all subsections of section 9 must be considered: (a) the applicable table support amounts for both parties; (b) the increased costs of shared parenting time; and, (c) the condition, means, needs, and other circumstances of each parent or spouse and of any child for whom support is sought.

e. To properly apply section 9, child budgets are required and the court must consider all of the circumstances; There is no “formula” for the determination of child support under section 9, and courts must be flexible.

f. Set-off is the starting point for the calculation. However, the court retains the ability to modify the “set-off” where, if applied, it would lead to significant variation in the standard of living experienced by the child when moving between households: see Contino v. Leonelli-Contino, 2005 SCC 63, at para. 51; Flick v. Flick, 2011 BCSC 264 at para. 64.

77. Principles including the following govern the imputation of income in a child support case, whether retroactively or prospectively:

a. Section 19(1) of the Child Support Guidelines provides that the court may impute income to a parent in appropriate circumstances. Those circumstances include but are not limited to circumstances where the spouse is intentionally unemployed or underemployed, other than as required by the needs of the child, or the reasonable health or educational needs of the spouse: see s. 19(1)(a). Other circumstances include where the parent failed to provide income information when under a legal duty to do so: see s. 19(1)(f).

b. Imputation is one method by which a court gives effect to the joint and ongoing obligation of parents to support their children.

c. The three-part test for the imputation of income is set out in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 164 O.A.C. 241, at para. 23, as follows:

i. Is the spouse intentionally underemployed or unemployed;

ii. If so, is the intentional underemployment or unemployment required by virtue of his or her reasonable educational needs, the needs of the child, or reasonable health needs;

iii. If the answer to (ii) is negative, the court must decide whether to exercise its discretion to impute income, and if so, determine the amount to be imputed in the circumstances.

d. There is no need to find an intention to evade support obligations to find that a spouse is intentionally underemployed or unemployed. That a spouse is earning less than they are capable of earning will suffice.

e. A person making a decision to start a business in which he or she has no experience may result in a finding that he or she is intentionally underemployed: Dang v. Hornby (2006), 2006 CanLII 12973 (ON SC), 33 R.F.L. (6th) 113 (Ont. S.C.), at para. 24; Ruszczak v. Scherbluck, 2012 ONCJ 14, at para. 28; Charron v. Carriere, 2016 ONSC 4719. Where a party chooses to pursue self-employment, the court will examine whether this is a reasonable choice in the circumstances: see Smith v. Smith, 2012 ONSC 1116, at para. 81. A parent cannot pursue an improvident career path at the expense of the child: see Evans v. Gravely (2000), 15 R.F.L. (5th) 74 (Ont. S.C.J.), at para. 11. See also Tillmans v. Tillmans, 2013 ONSC 5500, at para. 99.

f. If a party chooses to pursue self-employment as an alternative income earning path the court will examine whether this choice was reasonable in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard to the parent's child support obligations: see Lawson v. Lawson (2006), 2006 CanLII 26573 (ON CA), 81 O.R. (3d) 321, at para. 36; Smith, at para. 81.

g. Parents can take jobs which generate less income as long as the decision is reasonable. However, a support payor cannot select a job merely because it suits his or her purposes. When an employment decision results in a significant reduction of child support, it must be justified in a compelling way: see Riel v. Holland (2003), 2003 CanLII 3433 (ON CA), 177 O.A.C. 162 (C.A.), at para. 23; B.(G.T.) v. B.(Z.B.), 2014 ONCJ 382, at para. 66; Rilli v. Rilli, 2006 CanLII 34451, at paras. 18-26.

h. Courts have a significant degree of discretion when imputing income: see Menegaldo v. Menegaldo, 2012 ONSC 2915, at para. 49. In determining an amount to impute, the court must have regard to the parent’s capacity to earn an income in light of factors such as employment history, age, education, training, experience, health, and available employment opportunities. The court looks to the amount of income the payor could earn if he or she worked to capacity: see Lawson, at para. 36.

i. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made: see Homsi v. Zaya, 2009 ONCA 322, 248 O.A.C. 168, at para. 28; Banning v. Bobrowski, [2007] O.J. No. 3927 (Ont. S.C.J.), at para. 10.

j. Where income has been imputed in an initial Application, the issue will generally be res judicata on a Motion to Change: see Bemrose v. Fetter, 2007 ONCA 637; Nejatie v. Signore, 2014 ONCJ 653. Imputation is a fact, not an estimate or a guess. Trang v. Trang, 2013 ONSC 1980, at para. 51. Where income has been imputed, a support payor will need to demonstrate a material change since the making of the imputation order: see Ruffolo v. David, 2016 ONSC 754 (Div. Ct.), at para. 20.

78. Principles including the following apply where a party has rental income or rental losses:

a. Evidence is required in order for the court to assess whether any reductions to other earned income are appropriate in the circumstances due to rental losses.

b. Evidence is required for courts to assess whether an amount less than the gross rental income should be included in income for support purposes.

c. Whether the “Schedule of Rental Activities” in a party’s tax return will suffice as evidence will depend on the other evidence in the case and the credibility of the parties overall.

d. The onus is on the party claiming expenses against gross rental income to show that those expenses are reasonable within the meaning of the Guidelines.

e. Expenses deducted against gross rental income could include “hard costs” such as mortgage, taxes, and insurance, or in some cases expenses for ongoing repairs and maintenance. This will depend upon the evidence and the circumstances.

f. The issue becomes somewhat more complicated when dealing with rental income from a personal residence. In those cases, courts will consider whether a party would have paid the expenses claimed on a party’s income tax return regardless of whether rental payments were made—the focus should be an attempt to do justice to both parties and less on mathematics: Rodney v. Brown, 2019 ONCJ 841, at paras. 86-89, citing Taillefer v. Taillefer, [2012] O.J. No. 5676, at para. 29.

See Appu v. Appu, 2014 ONSC 19. See also Graves v. Eager (2002), 2002 CanLII 45104 (ON CA), 29 R.F.L. (5th) 313 (Ont. C.A.); Wilkinson v. Wilkinson, 2008 ONCJ 96; Wilson v. Wilson, 2011 ONCJ 103, at para. 122.

79. Principles including the following govern the determination of what constitutes a section 7 expense and the contribution thereto:

a. To constitute a section 7 expense under the Guidelines, the expenses must be either “special” or “extraordinary.” The expenses must be “necessary” in relation to the best interests of the child and “reasonable” in relation to the means of the spouses and the child, and the spending pattern prior to separation.

b. Itemized expenses in the Guidelines include: childcare expenses; medical or dental expenses not covered by insurance and attributable to the child; health related expenses exceeding $100 per year including orthodontic treatment and counselling; extraordinary school expenses; post-secondary expenses; and extracurricular activities. The itemized list is exhaustive.

c. Pursuant to section 7(1.1), to be “extraordinary,” the expenses much exceed what the requesting party can reasonably cover having regard to their income and support received, the nature of the expense, the needs and talents of the child, the cost of the program, and overall cost of the child’s activities.

d. The guiding principle is that such costs are generally shared in proportion to income, after accounting for any tax deductions that may be available in relation to the expense (such as in the case of childcare or summer camps).

e. While consent is not required under section 7 itself, where consent is required in an Agreement or Court Order, consent must be sought and obtained for any expense to which the spouse requests the contribution of the other spouse.

f. As a general rule, the following expenses do not fall within section 7 of the Guidelines: clothing for the child, including boots, winter coats, and similar items; gifts for the child whether given by the parent or a third party; cell phone for the child (unless specifically required for an educational program or a medical purpose); costs to attend birthday parties of other children; family activities with either parent; books not directly required as part of an educational program; and minor activity expenses where not “extraordinary” in relation to the parties’ incomes and the table support being paid.

Application

80. As indicated, in the 2016 Final Order, the parties based child support on Mr. Evans’ “estimated” income of $70,000, which resulted in an ongoing monthly amount payable of $639. Mr. Evans repeatedly stated during the trial that this was not an “imputation.” At a minimum it was his own estimate of what he thought he was capable of earning in 2016. I do not find that anything turns on this distinction in this case.

81. Mr. Evans then had two very good years ($120,000 +), in which his Line 150 income exceeded the $70,000 estimate by approximately $50,000. This was followed by several less lucrative years where his income has been considerably lower, depending on how it is calculated. In 2019, he also started renting space in his home, generating additional income.

82. Meanwhile, Ms. Evans’ income from employment steadily increased, and in 2019, she started receiving rental income in addition to her employment income.

83. In his Motion to Change, Mr. Evans seeks a retroactive adjustment of arrears to January 1, 2019, the first year his income decreased after the Final Order. He says that in calculating support owed based on his “actual” earnings in each year, he has overpaid by more than $50,000. He effectively seeks to retroactively reduce his court-ordered table child support obligation and recoup what he says he overpaid.

84. In her Response, Ms. Evans concedes that a retroactive review of child support is appropriate. However, she takes the position that if one is going to recalculate, the two years in which Mr. Evans’ income exceeded the $70,000 (and did not disclose same) must be included. Her position on the extent of the requested imputation to Mr. Evans shifted during the proceeding and trial. In her pleading, she sought imputation in an amount to be determined by the court; in her opening statement, she sought imputation of $70,000 for each year retroactively; in her calculations at trial, she sought imputation between $83,265 in 2019 to $68,099 in 2022; and her closing submissions, she sought to impute $100,000 from 2019 forward.

85. Ms. Evans says she is owed table support of approximately $17,000 (in addition to a modest amount for section 7 expenses, which is addressed below). While her calculations provide that Mr. Evans would have no support obligation while the parties have had shared parenting, they do not acknowledge her own potential liability under section 9 of the Guidelines from June 2022 forward.

Commencement Date

86. I find that it is appropriate to commence the review of child support obligations as at January 1, 2017 as sought by Ms. Evans.

87. A material change in Mr. Evans’ income took place almost immediately after the order when he earned $122,000 in 2017. He did not disclose that increase. Further, while he states that he sought to “reconcile” expenses in 2018, he did not disclose his income until he brought the MTC. Disclosure was required both as a matter of basic fairness, as well as under the Final Order. The failure to disclose material increases in income to the recipient, Ms. Evans, was blameworthy conduct. Mr. Evans’ suggestion that the reassessment should commence only when his income declined (still not having disclosed his income tax returns) is unreasonable.

88. A material change also took place in Ms. Evans’ income when she started earning rental income in 2019. By that point, her income for child support purposes was $102,267, as compared with about $85,000 in the Final Order. She too failed to disclose income increases until the commencement of the MTC.

Imputation to Mr. Evans

89. I am not prepared to impute income to Mr. Evans before December 31, 2021 (although as seen below, I am prepared to do so from January 1, 2022). At the time of the Final Order, Mr. Evans had started his new company, Netbeds Inc. In 2017 and 2018, that appeared to have been a solid business decision, as it resulted in a significant increase in his Line 150 income overall. When his income then declined, I accept that this may be part of the risk inherent in a start-up company such as his. Although he was clearly “intentionally underemployed” from 2019 onwards, I do not find that his decision to continue to pursue his business, at least for a time, after the decline, was unreasonable. Based on his earnings in 2017 and 2018, it was reasonable, initially, to pursue his efforts.

90. By the end of 2021, however, Mr. Evans’ income having been well below his demonstrated pre-start up capacity for three years, that continued choice ceased to be reasonable having regard to his obligation to support the child to his capacity. By that point, Ms. Evans’ Response to Motion to Change had been served (in June 2021), and Mr. Evans was on notice that she sought to impute income to him. It ceased to be reasonable to direct his efforts into the start-up, rather than devote his energy fully to obtaining employment at his capacity. Both he and Mr. Ansari testified that by April 2022 the company was inactive.

91. Mr. Evans testified candidly regarding his lengthy track record (2001 – 2015) of earning between $80,000 to $100,000 per year (before starting Netbeds). He also testified that he is currently applying for jobs paying between $70,000 and $150,000. Mr. Evans clearly stated that he is capable of earning at that level. He tendered a chart setting out jobs applied to, although no supporting documentation for same.

92. On Mr. Evans’ earnings history before starting his company and his clear statements regarding his earnings capacity, I am prepared to impute annual employment income for 2022 and thereafter in the amount of $90,000. Calculations below reflect that imputation from 2022, in addition to estimated rental income.

Imputation to Ms. Evans

93. As set out above, during the trial it became evident that Ms. Evans’ employment situation was changing substantially. She stated that she was terminated without cause and was in the process of negotiating a severance package. She was offered a position at a similar rate of pay and declined it for a range of professional reasons. She expressed confidence that she would be able to find employment at the same level of income.

94. Ms. Evans volunteered that her ongoing income for child support purposes should be treated as consistent with her 2022 income. This is a reasonable position in the circumstances, and I impute income to her on that basis. Her 2023 income from employment is found to be $106,005, consistent with 2022.

Rental Income

95. In calculating incomes for child support purposes, it is appropriate in this case to include gross rental incomes for both parties from 2019 forward.

96. Although Mr. Evans’ tax returns for 2017 and 2018 reflected rental incomes, as Ms. Evans did not seek to include those amounts in income for those years, I have not done so.

97. In Mr. Evans’ case, he did not produce his income tax returns for the years 2020 and 2021 until I ordered him to do so during trial; he has produced no supporting documentation in relation to his Statement of Rental Activities in his tax returns; he conceded in his testimony that as the rental expenses related also to the home in which he resides, he derives considerable personal benefit from those expenses; and, I have found his evidence overall to be less than credible (such that I am not prepared to accept the Statement of Rental Activities at face value). In the circumstances, Mr. Evans’ gross rental incomes are included in income from 2019 onwards. From 2023, I have estimated those gross revenues at $16,000 having regard to prior years’ gross rental revenues.[^1]

98. Although I have more confidence in Ms. Evans’ Statement of Rental Activities, the court was provided with no supporting documentation regarding her claimed rental expenses. In her testimony, Ms. Evans in any event conceded the personal benefit derived from most of the expenses claimed (with no particularity as to which expenses may not have had a personal component).[^2] Accordingly, I have included gross rental incomes in her income for child support.

99. Neither party has met their onus to show why any amount less than gross rental incomes should be included in incomes for support purposes.

Other Notes regarding Mr. Evans’ Income

100. For the years 2018 and 2019, I have used Mr. Evans’ Line 150 income as the basis for assessing his support obligations.

101. For 2020, I have used Mr. Evans’ employment income and gross rental income.

102. For 2021, Mr. Evans suggested that it was not appropriate to use his Line 150 income as he stated that his employment income of $54,812 was not correct and the $23,000 in “other income” was somehow an error. He stated that he had submitted an Adjustment Request to the CRA but did not tender a copy (he provided a copy of such a request for 2020 but not 2021). Mr. Evans stated, and the accountant confirmed, that he received less employment income than reported, in a manner akin to a shareholder loan (such that those amount can later be withdraw on an after-tax basis when the company is solvent). Mr. Evans at no point produced his 2021 corporate financial statement (only the 5-year summary) or his corporate income tax returns (although ordered to do so). He only produced his 2021 income tax return during trial when I ordered him to do so – indeed it seemed that he wished to hide that document from the court. In the circumstances, I have insufficient evidence to deviate from the inclusion of the full Line 101 employment income and Line 130 “other income” in Mr. Evans’ 2021 income for support purposes.

103. From 2022 onwards I have imputed employment income, for the reasons set out above. Thus for 2022, the income calculations for Mr. Evans do not include his actual business income. Rather, the calculations reflect imputed employment income of $90,000 plus actual gross rental income of $14,610.

Conclusions Regarding the Parties’ Incomes

104. In summary, I find the parties’ incomes to have been as follows since 2017. Details are set out more fully in the chart attached to this Judgment as Schedule A.

Year	Mr. Evans	Ms. Evans
2017	$122,752	$84,885
2018	$120,965	$89,087
2019	$41,989	$102,267
2020	$49,130	$125,705
2021	$82,512	$123,273
2022	$104,610	$128,505
2023	$106,000	$128,505

Residency

105. At the time of the Final Order, the child lived primarily with Ms. Evans, triggering child support liability for Mr. Evans under section 3 of the Guidelines. Child support was payable by Mr. Evans to Ms. Evans under section 3 of the Guidelines for 2017, 2018, 2019, as well as 2021. Although not necessary for her to do so, Ms. Evans took the position that child support need not be paid for the months of July and August in each of these years as the child was with each of them equally during those months. The calculations below reflect that.

106. In 2020, the child lived primarily with Ms. Evans for the months of January to March 2020 and September to December 2020. The parties had a shared parenting arrangement for five months from April to early September 2020. Neither party provided the court with an accounting of hours or overnights to assist with assessing whether this resulted in Mr. Evans reaching the 40% threshold for the year (although Ms. Evans stated in her closing submissions that it did not, without further analysis). I find on a balance of probabilities that in 2020, over the course of the full year, Mr. Evans did not reach the 40% threshold. I reach this conclusion having counted overnights under a straightforward application of the Final Order and accounting for shared time for the five-month period, which results in less than 146 overnights in Mr. Evans’ care. The onus was on Mr. Evans to show otherwise if wishing to avail himself of section 9. He did not do so.

107. In 2022, the child resided primarily with Ms. Evans until May 31, 2022, and then the parties implemented a week-about scheduled effective June 1, 2022 (set out in Piccoli J.’s Order of the same date). Neither party produced evidence that would assist in determining whether this resulted in the child residing with Mr. Evans more than 40% or more of the time over the course of 2022. Mr. Evans had the onus to show that on a balance of probabilities if seeking to avail himself of section 9. He did not meet that onus. Ms. Evans did not seek child support from June 1, 2022 forward. In the circumstances, Mr. Evans shall pay the table amount on his total income for child support purposes as determined herein, from January 1, 2022 to May 31, 2022. No child support is payable from June – December 2022, per Ms. Evans’ consent.

108. In 2023, the shared parenting arrangements have continued, with child support payable under section 9 of the Guidelines from January 1, 2023 onwards.

Child Support under section 9 of the Guidelines

109. The parties’ evidence, generally speaking, was that they both paid similar amounts to care for their son when residing with each of them respectively, having regard to section 9 of the Guidelines. Although Ms. Evans also asserted that she tended to pay more for “needs” of the child while Mr. Evans paid more for “wants”, she also stated that they would each, for example, purchase coats and other clothing for him. Neither provided detailed child budgets or detailed financial evidence regarding who pays what for C.

110. Both parties own their homes. Both reside with partners with whom they share expenses. Both have additional rental income coming into their households.

111. On the evidence, and in the exercise of my discretion, calculating child support on the basis of a set-off calculation without further adjustment is appropriate in this case.

Credit for Payments Made

112. In calculating retroactive child support liability, credit must be given for amounts paid as child support during the period of retroactivity (January 1, 2017 to June 30, 2023).

113. Mr. Evans claimed that he paid a total of $36,250 to Ms. Evans on account of child support from January 2017 to the date of trial. Ms. Evans acknowledged payments totaling $33,467. I have reviewed the supporting documentation tendered as evidence in the trial and find that the amount of $30,043 is the correct amount of credit to be given to Mr. Evans. It appears that Mr. Evans may have double-counted some payments and included payments for items such as birthday parties and the like.

114. Nevertheless, given Ms. Evans’ more generous position regarding credit for amounts paid, I have applied her figure, rather than the lower amount arrived at by the court.

115. Ms. Evans did not make any payments on account of child support. There are thus no payments from her to account for.

Conclusion regarding Retroactive Table Support payable

116. Applying the principles and findings set out above, I conclude that Mr. Evans owes $6,629 to Ms. Evans on account of retroactive table support adjustments from January 1, 2017 to June 30, 2023, calculated as follows (and set out more fully below and in Schedule A hereto):

Year	Child support payable by Mr. Evans
2017	$10,890
2018	$10,750
2019	$3,810
2020	$3,171
2021	$7,790
2022	$4,735
2023	($1,050) (to June 30, 2023)
Subtotal	$40,096
Credit for Payments Made	($33,467) (per Ms. Evans’ position)
Net Shortfall	$6,629

Conclusion regarding Special and Extraordinary Expenses Payable

117. At the outset of trial, Mr. Evans advanced a significant claim for contribution to what he claimed were expenses under section 7 of the Guidelines, totaling over $10,000. However, almost without exception, the expenses advanced by him were either not consented to by Ms. Evans in advance (as required by the Final Order) or not section 7 expenses at all (such as clothing, gifts, books, entry to an aquarium, one-off ski passes, and the child’s cell phone expense). Mr. Evans seemed to think that he could just incur expenses willy-nilly, and then send Ms. Evans a bill. She politely and repeatedly advised him to seek her consent in advance in accordance with the order, yet he persisted.

118. The only activities consented to by both parties were some of the hockey expenses, and orthodontics, which both parties incurred.

119. In his closing submissions, Mr. Evans sought the more modest amount of $580.85 which he stated related to orthodontics, dental expenses, and books for French Immersion. However, the evidence at trial was that Ms. Evans covered orthodontics and dental expenses until November 2022 and that orthodontics were shared equally thereafter. Further, books would not be a section 7 expense and were not consented to.

120. On the evidence, I am unable to award any amount to Mr. Evans on account of section 7 expenses retroactively.

121. Ms. Evans claimed contribution to approximately $2,800 in relation to the portion of orthodontics which was not covered by her benefits coverage. These amounts were appropriately documented in the trial. I find that Mr. Evans’ reasonable share of the portion not covered by insurance, considering that the expenses were incurred between 2019 and 2022 and the proportions would have varied somewhat in those years, is a global 35% of $2,800, namely $980.

Conclusion regarding Retroactive amount payable

122. In the result, Mr. Evans owes table support of $6,629 and a contribution to special expenses of $980.

123. This results in a total amount owing by Mr. Evans to Ms. Evans on account of retroactive support of $7,609 owed to June 30, 2023.

C. Ongoing Child Support and Contributions to Section 7 Expenses

124. Given the changes in the child’s residential arrangements and the changes in both parties’ incomes, a determination regarding ongoing child support is also required on this Motion to Change.

125. I have already set out the legal principles which apply with respect to determination of income, including imputation and child support in the context of shared parenting. I apply those principles here.

Analysis

126. For the purpose of determining child support from July 1, 2023 onwards, I make the following determinations:

127. Mr. Evans’ income for child support purposes shall be an imputed employment income of $90,000, in addition to estimated gross rental income of $16,000, for a total of $106,000. I reach that determination based on the principles set out above with respect to imputation of income, Mr. Evans’ significant earnings history before the start-up company, and his candid admission that he is well capable of earning between $70,00 and $150,000 per year.

128. I set Mr. Evans’ gross rental income at an estimated amount of $16,000 having regard to his gross rental incomes between 2019 and 2022, and recognizing that this rental income related to space in his home for which most expenses would be incurred whether or not the space was being rented out (and to the extent that that is not the case, no evidence was put before the court to assist).

129. The table support amount on Mr. Evans’ income of $106,000 for one child is $958 per month.

130. For clarity, Mr. Evans’ employment amount is imputed. The rental amount is estimated based on gross rental income and may be adjusted annually based on actual rental income after considering proven expenses in accordance with the principles set out in paragraph 78 of this Judgment.

131. Although Ms. Evans’ employment situation is changing, she agreed that her 2022 income would be an acceptable basis for child support going forward. Accordingly, Ms. Evans’ employment income for 2023 is imputed, on consent, to be $106,005, consistent with 2022.

132. As noted above, insufficient evidence was before the court to consider less than gross rental income. Ms. Evans’ gross rental income is estimated to be $22,500, consistent with the last several years. Ms. Evans’ total income for child support purposes is thus $128,505 for 2023. The table support amount is $1,133 per month.

133. For clarity, Ms. Evans’ employment amount is imputed. Her rental amount is estimated gross rental income and may be adjusted annually based on actual rental income in the same manner as for Mr. Evans (see para. 130).

134. With respect to rental incomes of both parties going forward, the parties may choose to give one another credit for some portion of expenses related to rental income. (By way of example, they could agree that each should include 75% of gross rental incomes in income for child support purposes). If they cannot agree on an approach, it would be a question of proof, regarding which expenses could legitimately (from a support perspective) be deducted from gross rental incomes recognizing that expenses with personal benefit would be added back.

135. The starting point for the calculation of child support under section 9 of the Guidelines is section 9(a), the set off amount, which is $175 per month. The evidence suggests that the parties’ expenses for the child are similar, and that on a balance of probabilities, they have similar standards of living. Neither party tendered detailed child expense budgets. In the circumstances, I exercise my discretion to apply the set off amount of $175 per month commencing July 1, 2023, payable by Ms. Evans to Mr. Evans.

136. The parties’ proportionate contributions to special and extraordinary expenses, based on the incomes just set out, are 55% payable by Ms. Evans and 45% payable by Mr. Evans. Although at trial it appeared that the parties agreed to share such expenses equally, with each contributing up to $5,000 per year, in Mr. Evans’ closing submissions, he seeks proportionate contribution in accordance with section 7.

137. Of the total special expense amount, the parties agreed at trial that house league hockey (registration and equipment) will likely cost approximately $3,000 per year. They also agreed that they have each historically enrolled C. in one summer camp on their respective time. Ms. Evans has never sought a contribution to this expense. There have been orthodontic expenses to which they are each contributing to the net cost after using their respective benefits.

138. Summer camps are no longer a section 7 expense for this child. He is almost 14 years old and there is no evidence that he requires “childcare” in the summer to enable either parent to work. While summer camps could be considered an extraordinary extracurricular activity under section 7, I decline to characterize them in that manner in this case as I was not provided with any evidence that the expense is reasonable and necessary for this child at this time.

139. As seen above, there has been significant conflict related to special and extraordinary expenses, both in terms of Mr. Evans fundamentally misunderstanding what constitutes a section 7 expense and by not complying with the consent requirement in the Final Order. Accordingly, to reduce conflict between the parties for the benefit of the child, the order below contains details that are tailored to reduce conflict and increase certainty for this separated family.

140. Briefly, those terms include: a provision that only Ms. Evans may enroll the child in hockey and that Mr. Evans’ contribution must be paid in advance; a provision that each may enroll the child in summer camps on their own time at their own expense; a provision that if Ms. Evans continues the child’s counselling, Mr. Evans shall pay in proportion to income after both parties availing themselves of benefits coverage; and a provision that neither shall be liable to contribute to any section 7 expense to which they did not consent in advance in writing. Where my order is different than orders regarding section 7 expenses that may be seen in other decisions, the terms have been crafted, in my discretion, to bring peace on this battlefield between the parties.

141. The order below contains the standard clauses in relation to the ongoing disclosure of income, and annual adjustment of child support. Commencing in 2024, both parties shall exchange complete income tax returns and Notices of Assessment and any other income information required under section 21 of the Guidelines, by July 1 of each year.

142. Child support shall be adjusted annually, but is also variable in the event of a material change of circumstances.

143. As and when Ms. Evans receives details of her severance package, same must be disclosed, including a complete copy of that package, to Mr. Evans forthwith. As and when Ms. Evans obtains employment, she shall promptly disclose same to Mr. Evans, including a copy of her contract of employment and first three pay stubs. In the event that her remuneration will exceed $106,000 annually, this shall constitute a material change of circumstances.

144. As and when Mr. Evans obtains employment, he shall promptly disclose same to Ms. Evans, including a copy of his contract of employment and first three pay stubs. In the event that his remuneration will exceed $90,000 annually, this shall constitute a material change of circumstances.

145. The foregoing does not foreclose that there could be other material changes triggering a change in the child support arrangements.

D. Implementation of the Pension Transfer Term in the Final Order

146. As seen, the Final Order included a term that “half” of the family law value of Ms. Evans’ pension was to be rolled over to Mr. Evans and that Ms. Evans would sign all documentation required to make that happen.

147. During the trial, some ten years after the Final Order, it became clear that the family law value of $55,579.08 plus interest, had been approved to be rolled over (the total amount of $75,092), and that a payment was “processed” on April 21, 2023. At that point, the evidence was that it had not yet been received by Mr. Evans’ financial institution, but was (actually rather than proverbially) “in the mail.”

148. Mr. Evans was unconvinced that the funds had been paid. He remained certain that the pension plan administrator and Ms. Evans are to blame for the delay, and in his closing submissions and draft order, seeks the amount of $76,492 against the pension plan and Ms. Evans jointly, which amount appears to be over and above the amount of the rollover plus interest. He characterizes the amount as “reasonable loss of asset appreciation” and “punitive damages.”

149. I appreciate Mr. Evans’ frustration regarding the delays. Ten years is truly unacceptable. I find, however, that while those delays rest partly at the feet of the pension plan administrator, they are also significantly his own responsibility. They are not, on the evidence, the fault of Ms. Evans.

150. I make the following very brief findings on this issue:

a. Ms. Evans took steps as early as 2013 (three years before the Final Order) to have her pension valued, for the purpose of sharing the value with Mr. Evans. She has not been the cause of delay;

b. In the numerous years since the Final Order, Ms. Evans repeatedly emailed the pension plan administrator to enquire as to what further information might be required from her to implement the transfer. That she became frustrated in 2018 and sent an intemperate email stating that she had had enough of being dragged into the issue and that Mr. Evans should do his own “adulting” does not change the fact that she then continued thereafter to do her part to try to make the transfer, repeatedly asking the administrator if there was anything else needed from her (which, she was told, there was not).

c. Mr. Evans was told on multiple occasions by staff at the pension plan administrator, that what was missing in order to be able to implement the transfer was confirmation of the valuation date and confirmation that he had established the LIRA. I appreciate Mr. Evans’ frustration at being asked this at various junctures, as it seems clear that the administrator had been provided with this on several occasions, including from very early on. However, the information seems to have gotten lost in the shuffle as the administrator changed from Morneau Sheppell to Lifeworks to Telus Health, with not all documents being shared with each transition. However, rather than simply providing what was needed to make the transfer happen, he would get angry, send belligerent emails, allege a conspiracy between Ms. Evans and her “friends” at Grand River Hospital, and then not provide what was being requested. He did not assist himself at all with this approach.

d. The parties both signed a Direction to Grand River Hospital (Ms. Evans signed December 14, 2020 and Mr. Evans signed a month later on January 11, 2021) which provided that the family law valuation date is September 15, 2013 and assigned an interest rate of 3.2% from that date to the date of transfer. It appears that the family law valuation date had also been clarified earlier. I agree with Mr. Evans that in light of that Direction, it is mystifying that the administrator continued to ask about the family law valuation date thereafter. However, being indignant and angry rather than simply working with the pension plan administrator was not a prudent path.

e. An example of Mr. Evans’ approach is the following: On April 4, 2022, Ms. Graham, the pension plan representative, emailed Mr. Evans to request the locking in agreement and family law valuation date. Neither were provided by Mr. Evans at that time. In August 2022, the administrator again reached out regarding the family law valuation date. Although Mr. Evans responded, he did not provide the information. Instead, he got angry about the delays and threatened to start legal proceedings. The administrator reached out again on September 1, 2022. And so it went. Ms. Graham testified that the administrator did not finally receive all of what it needed from Mr. Evans until March 28, 2023, when contacted by Mr. Evans’ counsel. Thus, while the delays on the part of the administrator were surely problematic (and clearly there were issues in the handover of the file as administrators changed), when approached, Mr. Evans escalated rather than simply give them what they needed so he could get the funds he was entitled to.

f. None of this amounts to the alleged conspiracy between the administrator and Ms. Evans. Instead, this is a combination of rather spectacular bureaucratic inefficiency on the part of the administrator and poor self-regulation on the part of Mr. Evans.

151. In any event, the relief sought against the pension plan is a non-starter. The plan was not a party to the proceeding, and this court is in no position to make an order against it.

152. Further, even if this court were to find that Ms. Evans were somehow responsible for the delay – which this court does not find – there is no reliable evidence before the court by which to quantify “damages” sought by Mr. Evans, over and above the pension amount plus interest at 3% which he agreed to in by way of the Direction, signed by both parties, which the court was told, has been advanced by cheque to the institution holding Mr. Evans’ LIRA. Mr. Evans’ calculations set out in his written closing submissions are not evidence.

153. Accordingly, the relief sought in relation to the pension is dismissed.

E. CONCLUSION AND ORDER

154. On the basis of all of the foregoing, and having considered all of the evidence in this trial whether directly referred to or not, I make the following Order:

The following paragraphs of the Order of Justice Goodman dated July 22, 2016 shall be deleted and replaced as follows: paragraphs 1, 2, 5, 6, 7, 8, 10, 13, 20, 21, and 25:

1. Paragraphs 1 and 2 shall read as follows:

(1) Ms. Evans shall have final decision-making authority in respect of major issues related to the child’s health, education, religion, and general welfare. Before making a major decision, she shall meaningfully consult Mr. Evans. Upon making a final decision, she shall promptly advise him in writing of that decision.

(2) The following terms shall apply with respect to the scheduling of extra-curricular activities:

a. Neither parent is permitted to enroll the child in any extra-curricular activities that will impact the parenting time of the other parent, without the prior written consent of the other parent, such consent to be requested in writing no less than two weeks prior to the proposed commencement date of the activity.

b. If a proposed activity will impact both parties’ parenting time, neither parent shall discuss the proposed activity with the child before discussing it with one another and before the other parent has consented in writing to the activity.

c. From a scheduling perspective, either party may enroll the child in activities on their own time without the consent of the other party, so long as they are not seeking a financial contribution from the other parent;

d. Neither parent shall have any obligation to take the child to any extra-curricular activity scheduled by the other party without written consent in advance nor shall they have any obligation to permit the other parent to do so.

e. In the event of a conflict between this paragraph and paragraph 13 (below), the terms of paragraph 13 shall prevail.

2. Paragraph 5 shall read as follows:

The child shall reside equally with both parties in accordance with the Final Order of Her Honour, Justice Piccoli, dated November 24, 2022. This shall be known as the regular schedule and shall be overridden by the holiday schedule at paragraph 9 of the Order of Justice Goodman dated July 22, 2016, which holiday schedule continues in full force and effect.

3. Paragraph 6 shall read as follows:

The parties shall be reasonable and flexible with respect to temporary changes to the regular or holiday schedule to allow the child to attend special occasions with family or important events with the other party. Each party shall limit the number of such requests in any given year, and shall make any such request at least one week in advance, in writing. The other party shall be reasonable in responding to and accommodating such requests.

4. Paragraph 7 shall read as follows:

The child may have reasonable phone or video contact with the other party while in the care of a parent and neither shall unreasonably restrict such contact. Such contact shall not interfere with the time, plans, or activities of the child while in the care of a party.

5. Paragraph 8 shall read as follows:

The following terms shall apply in respect of any request to travel with the child outside Ontario:

a. If either party wishes to travel with the child outside Ontario, he or she shall request consent from the other party at least 21 days in advance, such consent not to be unreasonably withheld. The request shall be in writing, and shall include an itinerary, including flight and accommodation information, and how to contact the child during the trip.

b. The non-travelling parent shall sign the travel consent documents no later than 7 days following receipt of the written request to travel, and if there is a cost, this shall be paid by the travelling party.

c. Ms. Evans shall retain the child’s passport in her possession and provide it to Mr. Evans for travel with the child where that travel has been consented to. Mr. Evans shall return the child within seven calendar days of his return with the child to Ontario.

6. Paragraph 10 shall read as follows:

Ongoing Child Support

a. Commencing July 1, 2023, Ms. Evans shall pay table child support to Mr. Evans in the amount of $1,133 per month, based on her income for child support purposes of $128,505 (being imputed employment income of $106,005 and estimated rental income of $22,500).

b. Commencing July 1, 2023, Mr. Evans shall pay table child support to Ms. Evans in the amount of $958 per month, based on his income for child support purposes of $128,805 (being imputed employment income of $90,000 and estimated rental income of $16,000).

c. Ms. Evans’ child support amount set out in para. 10(a) and Mr. Evans’ child support amount set out in para 10(b) may be set off against one another, resulting in a net amount payable by Ms. Evans to Mr. Evans of $175 per month, which shall be payable on the first day of each month. This child support amount is determined on the basis of the parties’ respective incomes for child support purposes, the shared parenting schedule, and an application of sections 9(a), (b), and (c) of the Child Support Guidelines.

Retroactive Child Support

d. Mr. Evans shall pay to Ms. Evans retroactive child support on account of table support and special expenses from January 1, 2023 to June 30, 2023 in the amount of $7,609.

e. The retroactive child support owing shall be paid at a rate of $500 per month commencing August 1, 2023 and attract post-judgment interest on any unpaid amount.

7. Paragraph 13 shall read as follows:

Commencing July 1, 2023, the following terms shall apply in respect of special and extraordinary expenses under section 7 of the Child Support Guidelines:

a. The parties’ current proportionate shares of special and extraordinary expense are 45% payable by Mr. Evans and 55% payable by Ms. Evans, based on the incomes set out in paragraph 10, above.

b. House-League Hockey: Ms. Evans shall be the sole party permitted to register the child for house league hockey and responsible for managing expenses related to registration, equipment and tournaments. Based on both parties’ estimates, the anticipated hockey expenses total approximately $3,000 per year of which Mr. Evans’ proportionate share is $1,380 per year. Accordingly, commencing August 1, 2023, Mr. Evans shall pay to Ms. Evans $1,380 per year, as a lump sum due on August 1 each year to facilitate Ms. Evans’ enrolment of the child in house league hockey, purchase of equipment as necessary, and registration for tournaments. Ms. Evans shall have no obligation to enroll the child until such amount is paid to her by Mr. Evans.

c. Other Hockey: If either parent wishes to enroll the child in any further hockey (tryouts, or hockey at a more senior level, for example), he or she shall seek the other parent’s prior written consent. If, and only if, the parties agree in writing in advance to the expense, Ms. Evans shall enroll the child and pay for the expense, upon receipt from Mr. Evans of his proportionate share of the cost in advance. Based on their current incomes for child support purposes, Mr. Evans shall pay 45% and Ms. Evans shall pay 55%. For clarity, if Mr. Evans enrolls the child in any hockey activity in contravention of this Order, Ms. Evans shall have no obligation to contribute financially.

d. Camps: Each party may (but is not obliged to) register the child in summer camp for his or her scheduled weeks with the child. Each parent shall be responsible for this registration on his or her own time and shall solely bear the expense. Neither parent may seek contribution from the other for this expense.

e. Counselling: If Ms. Evans determines, in her sole discretion, that further counselling for C. is in his best interests, the parties shall share that cost in proportion to their incomes (45% by Mr. Evans, 55% by Ms. Evans), after accounting for any contribution from their respective benefits providers. Ms. Evans is not required to seek consent in advance of incurring this expense. The net after-benefits contribution to be sought from Mr. Evans shall not exceed $1,200 per year.

f. Uninsured medical and dental expenses: Such expenses shall be shared in proportion to the parties’ incomes for child support purposes as set out herein, so long as consent is obtained in advance, in writing. This clause is to be read with paragraphs 20 and 21 below.

g. Further section 7 expenses: If a parent wishes to incur any further section 7 expense for the child to which he or she seeks the other parent’s financial contribution (any form of hockey not being included in this paragraph, as it is addressed in paras. 13(b) and 13(c) herein), such consent must be sought in writing, in advance. A parent shall not be liable for any contribution to such expense if written consent is not sought and obtained in advance.

h. This paragraph shall not apply to the child’s post-secondary expenses, the nature and sharing of which shall be determined once the child’s post-secondary plans are known.

8. Paragraphs 20 and 21 shall read as follows:

9. Both parties shall name the child as a beneficiary on their respective supplementary benefits coverage whether through employment or privately obtained. In the event that either party ceases to have benefits coverage through employment, that party shall obtain private coverage, so long as it is available at a reasonable cost.

10. The parties shall forthwith exchange information about their respective benefits plans including instructions as to how to make claims. The parties shall cooperate to ensure that they derive maximum permissible benefit from the dual benefits coverage to reduce the net amount payable by both parties for such expenses. The parties shall confirm details of their respective coverage each year by July 1. Any medical or dental expenses not covered by either party’s supplementary insurance shall be considered a shareable section 7 expense, in proportion to incomes.

11. Paragraph 25 shall read as follows:

a. Commencing in 2024 and for so long as child support is payable, both parties shall exchange complete copies of their income tax returns, with all schedules and attachments, as well as their Notices of Assessment by July 1 of each year, and any other information reasonably requested under section 21 of the Child Support Guidelines, for the determination of child support.

b. For clarity, or so long as Mr. Evans continues to have corporate interests, this shall include complete copies of his corporate income tax returns and Notices of Assessment and annual financial statements in relation to his corporate interests.

c. Commencing in 2024, the parties shall adjust child support payable, effective August 1 of each year, based on the prior years’ income information exchanged as set out herein. The new amount shall take effect from August 1 to the following July 31.

d. In addition to annual financial disclosure:

i. As and when Ms. Evans receives details of her severance package, same must be disclosed, including a complete copy of that package, to Mr. Evans forthwith.

ii. As and when Ms. Evans obtains employment, she shall promptly disclose same to Mr. Evans, including a copy of her contract of employment and first three pay stubs. In the event that her remuneration will exceed $106,000, this shall constitute a material change of circumstances.

iii. As and when Mr. Evans obtains employment, he shall promptly disclose same to Ms. Evans, including a copy of his contract of employment and first three pay stubs. In the event that his remuneration will exceed $90,000, this shall constitute a material change of circumstances.

iv. The forgoing does not preclude that there could be other material changes affecting child support payable.

10. The outstanding costs amounts owed under the order of Justice Taylor dated November 21, 2021 ($1,000) and the order of Justice Braid dated January 11, 2023 ($2,500) shall be paid by Mr. Evans to Ms. Evans by August 31, 2023.

11. For clarity, all other terms (except those referenced in para 10, above) in the temporary orders made in the Motion to Change are of no further force and effect.

12. The post-judgment interest rate shall be varied to the current rate.

13. Support deduction order to issue.

14. All other claims are hereby dismissed.

VI COSTS

155. Subject to any Offers to Settle, Ms. Evans is the successful party in this trial and is presumptively entitled to her costs under Rule 24(1), with quantum to be determined by me.

156. In the event that the parties are unable to agree on costs, written submissions should be directed to my attention, by email to my judicial assistant at mona.goodwin@ontario.ca and Kitchener.SCJJA@ontario.ca. They shall be copied to the other party.

157. Submissions shall not exceed five pages double spaced, 12-point font, and, if claiming costs, shall include a detailed Bill of Costs. Any Offers to Settle, whether they meet the requirements of Rule 18 or not, should be appended to the costs submissions for the court’s consideration.

158. Submissions are due on the following schedule:

Ms. Evans: by July 21, 2023.

Mr. Evans: by August 11, 2023.

159. Timelines for filing such submissions may not be extended without my permission, in advance. If submissions are not received in accordance with the timeline set out in paragraph 158, costs shall be deemed to have been resolved on a final basis between the parties.

L. Madsen J.

Released: July 10, 2023

Schedule A - Evans and Evans Support Calculation Summary

Year	Mr. Evans’ Income	Monthly Table Support	Total Support Owed by Mr. Evans	Basis of income calculation	Notes	Ms. Evans’ Income	Basis of income calculation	Monthly Table support	Total support owed by Ms. Evans
2017	$122,752 (Ex 1)	$1,089	$10,890 (10 months per Ms. Evans)	Line 150: $122,752. (Ms. Evans did not seek to include gross rental income)	s. 3 support payable by Mr. Evans child primarily with Ms. Evans per Final Order	$84,885 (Ex 87)	Line 150	N/A	N/A
2018	$120,965 (Ex 4)	$1,075	$10,750 (10 months per Ms. Evans)	Line 150 $120,965 (Ms. Evans did not seek to include rental income)	s. 3 support payable by Mr. Evans child primarily with Ms. Evans per Final Order	$89,087 (Ex 92)	Line 150	N/A	N/A
2019	$41,989 (Ex 7)	$381	$3,810 (10 months per Ms. Evans)	Gross rental income $29,229 plus gross business income $12,750	S 3 support Payable by Mr. Evans child primarily with Ms. Evans per Final Order	$102,267 (Ex 94)	Employment income $92,767 plus $9,500 gross rental income	N/A	N/A
2020	$49,130 (Ex 20)	$453	$3,171 7 months Jan -March; Sept - Dec	Employment income $34,700 plus gross rental $14,430	S 3 support Payable by Mr. Evans (40% NOT reached “over the course of the year”) BUT no child support April – Aug per Ms. Evans	$125,705 (ex 96)	Employment income $102,905 plus gross rental income $22,800	N/A	N/A
2021	$83,512 (Ex 17)	$779	$7,790 (10 months per Ms. Evans)	Line 150: $81,417 Less net rental income ($2,605) plus gross rental income: $5,700	S 3 payable by Mr. Evans child primarily with Ms. Evans per Final Order	$123,273 (Ex 98)	Employment income $100,473 plus gross rental $22,800	N/A	N/A
2022	$104,610 (Ex 57)	$947	$4,735 (5 months)	Imputed employment income of $90,000 plus gross rental income of $14,610	s. 3 support payable by Mr. Evans – onus not met to show child is his care more than 40% the time for the year No child support payable June 1 – December 31, 2023 per Ms. Evans	$128,505 (Ex 89)	Employment income $106,005 plus gross rental $22,500	N/A	N/A
2023	$106,000	$958	N/A	Imputed employment income of $90,000 plus estimated gross rental income of $16,000 per previous years	s. 9 support payable by Ms. Evans child residing equally with both parents	$128,505	Per 2022 on consent of Ms. Evans	$1,133	$175/m 6 months = $1,050
Totals			$41,146						$1,050

Net amount Owed by Mr. Evans per calculations: $40,096 Less amounts paid by Mr. Evans: ($33,467) Net shortfall: ($6,629) Less unpaid ortho contribution: ($980) Total shortfall of Mr. Evans: $7,609 owed to Ms. Evans to June 30, 2023

• Mr. Evans asserted that in 2021 he did not actually receive the employment income of $54,812 shown on his T4. The accountant, Mr. Ansari, referred to it as “deemed” income and suggested this was equivalent to a shareholder loan. There was no clear evidence before the court as to what was actually paid out to Mr. Evans as salary (Mr. Ansari suggested that it was “about” $20,000). Mr. Evans produced neither a complete financial corporate financial statement for 2021, nor the corporate tax returns (notwithstanding a court Order to do so), and his personal return for 2021 was not disclosed until during trial at the court’s direction. In the circumstances, the best evidence of his income is as set out in his personal income tax return for that year, and the T4.

• Ms. Evans did not seek to include rental income in Mr. Evans’ income for 2018 and 2019. The calculations above reflect that.

• From 2019 onwards, both parties had rental income. Both claimed expenses against that income. No supporting documentation (other than the Statement of Rental Activities in the tax returns, which I do not accept at face value) was provided by either party to support those claimed expenses and both acknowledged that the expenses largely had a personal component. The evidence of both parties was insufficient to reduce rental incomes below gross amounts. Mr. Evans also did not produce his income tax returns for the years 2020, 2021 or 2022 until during the trial.

• For 2017, 2019, 2020, and 2021, when the child was primarily resident with her, Ms. Evans was not seeking child support for July and August when the child resided on a shared basis. She reiterated that concession at trial and the calculations reflect this.

• For 2020, notwithstanding the shared schedule for the months of April to August 2020, on a balance of probabilities I find that the child did not reside with Mr. Evans 40% or more of the time over the course of the year. Table support would be owing from him to Ms. Evans for the year. However, Ms. Evans did not seek table support for the months during which the child resided on a shared basis (April – August). That is reflected in the calculations above.

• For 2022, the child resided primarily with Ms. Evans from January to May and on a 50/50 basis from June 1, 2022. Neither party tendered evidence to assist in calculation of whether Mr. Evans met the 40% threshold over the course of the full year, whether on the basis of hours or overnights. The onus is on Mr. Evans to adduce that evidence if seeking to avail of section 9. Ms. Evans did not seek child support from June 1, 2022 forward. In the circumstances, Mr. Evans shall pay table support from January to May 2022 when the child was primarily resident with Ms. Evans. No table support is payable for the balance of the year.

• For 2022 and 2023, the calculations above are based an imputation to Mr. Evans of $90,000 based on his historical earnings demonstrating earning capacity as well as his testimony regarding current earning capacity. For 2022, I have included actual gross rental income of $14,610. I have not included net business income of $17,256 given the imputation of employment income. For 2023, I have included an estimated gross rental amount of $16,000, having regard to gross rental revenues from 2019 – 2022.

• Where child support is paid under section 9, I find, in my discretion and on the evidence, that the application of sections 9(a), (b), and (c) results in no adjustment to the set off amount.

• Mr. Evans initially sought over $10,000 in retroactive section 7 expenses but in his closing submissions reduced that to $580.85. He stated that this relates to dental and orthodontic expenses, but the evidence was that Ms. Evans covered these expenses until November 2022 when the parties started sharing them 50/50 and each claiming from their respective benefits provider. Mr. Evans stated that the balance of the amount related to books to support French Immersion. This would not be a section 7 expense unless formally part of the academic program (about which I have no evidence), and was not consented to in any event. Ms. Evans sought contribution of $5,359 in orthodontic expenses incurred by her up to and including November 2022. She testified that her net cost was $2,800. I find Mr. Evans’ share of $2,800 to be 35% (some of the expense was incurred in 2019, some in 2022), such that he owes Ms. Evans $980. Orthodontics was an enumerated special expense in the Final Order and contributions were to be in proportion to income.

• Mr. Evans asserted that he had, in total, paid support of $36,250. Ms. Evans was prepared to give credit of $33,467 for the same period. I have received all of the evidence of Mr. Evans’ payments and find that the total is in fact $30,043. However, given that Ms. Evans’ submissions reflected credit of $33,467, I have relied on that submission in the calculations above.

[^1]: Mr. Evans reported rental incomes were as follows: In 2019: gross $29,229 with net income of -5,704; 2020: gross $14,430, net -$4,144; 2021: gross $5,700, net: $3,605; 2022: gross $14,610; net $2,597. [^2]: Ms. Evans reported rental incomes were as follows: In 2019: gross $9,500 with net income $2,590; 2020: gross $22,800, net $10,662; 2021: gross $22,800, net: $93; 2022: gross $22,500; net $4,209.