ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Angela Joanne McChesney
Applicant
– and –
Bruce Warren McChesney
Respondent
Nicola Munro, for the Applicant
Humaira Ahmad, for the Respondent
HEARD virtually at Sudbury:
January 18-20, 2022; April 6-7, 2022; January 6, 9, 10, 20, 2023; March 29, 2023; September 20, 2023
A.D. kurkE j.
REASONS ON APPLICATION
Overview
[1]
Overview
At issue in this application are child support and s. 7 expenses and spousal support, going forward and with respect to adjustments to amounts paid and owing by Bruce Warren McChesney, the respondent, whose income has increased since separation. The respondent seeks a reduction to reflect the high costs involved in exercising parenting time with the children, as he continues to reside in western Canada. Also at issue in this application with respect to spousal support are imputation of income to Angela Joanne McChesney (née Giroux), the applicant, and duration and quantum of support.
2The parties on agreement date their separation to September 24, 2012. Physical separation only occurred in November 2012, when the applicant took the two children of the marriage from British Columbia and relocated to Sudbury, Ontario, where her family lived.
3By the final order of Cullin J. of July 16, 2021, the parties have settled issues relating to decision-making, parenting time, access to information about the children, and travel and travel arrangements with respect to the two children of the marriage: Kaleigh Natalie McChesney, born March 1, 2006 (“Kaleigh”) and Zachary Laurier McChesney, born May 31, 2009 (“Zach”) (collectively, the “children”).
4The divorce in this case is uncontested. The parties married March 9, 2005 in Cuba, and their marriage certificate has been made an exhibit at this trial. They have clearly been living separate and apart since the fall of 2012, far longer than a year. There is no prospect of reconciliation. The divorce will be granted.
5The applicant seeks compensatory spousal support as the primary caregiver for the children during the marriage. She also claims need, in that she cannot be employed because she provides care for the children and suffers from various physical ailments.
6Agreement on support issues has remained unachievable. Even on the final day of the trial, during oral submissions on September 20, 2023, although the parties agreed that Kaleigh was now living with the respondent to attend post-secondary school in Alberta, the applicant would not agree that this change should be reflected in this court’s final order so as to obviate an immediate motion to change.
7Such inability to agree even on straightforward matters helps explain why this 2013 application is still before the court. The trial itself took up an inordinate amount of court time given the focused issues at play – some 11 days scheduled sporadically over 20 months. Far too much evidence was presented, likely because the surprisingly long time to trial and through trial has permitted the parties to ruminate excessively over past wrongs and to eagerly anticipate the opportunity to air their grievances at a hearing. It is not my intention to rehash all the details that the parties offered in evidence, though I have considered all the evidence in arriving at my conclusions.
The relationship between the parties
Their backgrounds
[8]
The relationship between the parties
The applicant is currently 47 years old, and now goes by her maiden name of Giroux. She was from Sudbury originally, born October 4, 1975. She went to school for social service work at Cambrian College in Sudbury and received her diploma in 2000. She did some work in social services in a Catholic school in Bonnyville, Alberta, but otherwise never worked in social services. She is well spoken and well educated.
9The respondent is 57 years old and was born in Edmonton on September 2, 1966. He does not know his birth father and his mother brought him to Sudbury in 1971. He has two sisters with whom he is not close and does not stay in touch. He considers himself a “Sixties Scoop” child. He was adopted in 1974 and goes by his adopted name. He lived in Hanmer from 1971 until 1984.
10The respondent joined the military reserve after graduating from high school and the regular army in 1987. With the military he lived in various cities: London, North Bay, Chilliwack, and Edmonton. Because of injuries suffered in a combat unit, the respondent was unable to serve in Afghanistan, so in 2000 he stayed back as a “rear party” mechanic and “kept vehicles running.” In his final years in service the respondent went to school in Northern Alberta as a form of rehabilitation from his injuries, and to gain a trade to join the work force. The respondent worked on his mechanic ticket and completed a power engineer technology course. With upgrading, that course of study took him about three years and he graduated in 2002 with honours. He passed provincial government examinations in Ontario and Alberta. By 2003 or 2004 he left the military and was working as a power engineer.
The parties meet, begin a relationship, and start a family in Alberta
[11]
The parties meet, begin a relationship, and start a family in Alberta
In 2001 the applicant met the respondent after she graduated from Cambrian. She moved to Edmonton, Alberta to be with him in the summer of 2001 while he did his training as a power engineer. The couple began living together in July 2001, and the applicant got a job working on the military base where the respondent was stationed.
12After the respondent graduated, the couple went to White River, Ontario in 2002 so that the applicant could be closer to her family; they stayed there seven months. The respondent got employment as a power engineer at a local plant, and the applicant did a secretarial/ administrative job for six or seven months. The respondent was injured on the job and suffered a concussion and a dislocated shoulder. They relocated to Bonnyville, Alberta, for the respondent’s work. They stayed there about a year, and then went to Cold Lake, Alberta - again a move generated by the respondent’s career. The applicant took jobs in social services and as a teaching assistant tutoring special needs students.
13The parties married in March 2005. According to the applicant, she stopped working February 2006 before her daughter Kaleigh was born on March 1, and she has not worked since. The applicant described the marriage as a traditional one. The respondent remembers that the applicant stopped working once their son Zach was born. The applicant stayed home and they received child tax credit benefits. In my view, the marriage was not “traditional.” The applicant worked until the couple’s first child was born, and from that point the couple did not remain stably together long enough to establish a long-term traditional pattern of the applicant working from home to further the family’s interests while the respondent was the “breadwinner”.
14The respondent agreed that at the point that Kaleigh was born the applicant would not have had an income, but he did recall that when she was at home the applicant did sell things from the home such as Tupperware and candles. According to the respondent, the children spent time in the daycare centre at the airbase in Cold Lake, where the couple enjoyed discounted rates. In his view, the applicant could have worked after the children were born.
15It is nevertheless apparent that during the couple’s relationship, the applicant did the bulk of child rearing and household maintenance. The respondent’s job took him various places. The applicant’s paid work was plainly secondary in this relationship, and she followed where the respondent led her for his work.
British Columbia: a fresh start and the end of the marriage
[16]
British Columbia: a fresh start and the end of the marriage
The parties remained in Cold Lake through the birth of their son Zach on May 31, 2009. The respondent testified that Cold Lake was a difficult place to live, as it had a lot of crime. Moreover, there were issues in the marriage, and the couple engaged in counseling. For the respondent, a move was an opportunity to “rekindle” their marriage, which he otherwise characterized as “in ruins”. So, in the summer of 2012 the couple moved to the Town of Comox in the Courtenay District on Vancouver Island, and into a house that they had built for them at 2480 Kinross Place. Most of the house was funded by a mortgage of more than $371,000. The respondent maintained that house until 2014.
17To move their possessions, the applicant drove their truck with a trailer and followed the respondent who drove a U-Haul truck on the 1300 km trip. She was uncomfortable with driving long distances and required her husband to take the lead. They moved into the Kinross Place home in September 2012, and Kaleigh started school in Comox.
18Vancouver Island offered a better situation for the respondent, who was flown to his work location in Edmonton. He worked shifts, and when not working he liked to go fishing. According to the applicant, during the marriage the couple lived an “extravagant” lifestyle. What she described as “extravagant” involved travel twice a year when she was not working: by camper to Chilliwack, British Columbia, and a winter trip to the Caribbean. The respondent gave the applicant real or costume jewellery. They also made a yearly trip to Sudbury with their camper; in 2006 Kaleigh was baptised there. I would call such a lifestyle “comfortable” rather than “extravagant”, but however it is described that lifestyle was short-lived.
19The applicant testified that the couple had a “huge argument” in September 2012, concerning the respondent’s “fidelity issues”. The applicant spoke in detail about this in cross-examination. She explained her reasons to believe that the respondent was engaging in extra-marital affairs. She described as “psychological abuse” what she claimed to be the respondent’s interest in masturbation and extra-marital sexuality, control of the household finances, and threats to harm or kill her. The applicant also spoke of a few instances of physical abuse. She claimed that physical abuse had started as early as 2001, but she nevertheless married the respondent and put up with violence because she “loved him and believed in him.”
20The respondent remembers this as a traumatic time. If things had been bad in Cold Lake, they were worse in Comox. The respondent related that they both said “unfortunate” things to each other towards the end of their marriage. They argued. The respondent described the applicant as aggressive with him; she had tantrums and fits of rage and anger in which she was “throwing pots and things.”
21The respondent denies any “physical abuse” of the applicant. He testified that it was only when the applicant retained her current counsel that claims of physical abuse were first made. The respondent was never charged with any criminal offence relating to the applicant. I do not need to decide this issue. Both parties have levelled accusations against the other, but there is nothing in the evidence to confirm either party’s claims of personal violence or uttered intentional threats. Suffice it to say that the relationship was failing. They did some family counselling but did not communicate and slept in separate bedrooms.
22According to the applicant, the respondent’s abusive conduct had become more pronounced by the fall of 2012. The parties date their separation to September 24, 2012, though they continued to live together; the applicant testified that at some point she moved temporarily to a shelter. By the end of November she did not want to have to deal anymore “with him and his partners.” I find that what were most troubling to the applicant were what she believed to be the respondent’s extra-marital liaisons, and it was that issue in particular that precipitated her leaving. In fact, the applicant made a point of mentioning in her evidence that the respondent was “at a girlfriend’s” when the applicant left for Ontario with the children.
23Financially, the respondent suffered a catastrophic blow at this time. As a result of issues surrounding his apparent misuse of sick time benefits, the respondent had ended up losing his well-paying oil industry job in mid-November 2012.
24The applicant’s sister, Nathalie Parent, explained that she and the applicant’s brother encouraged the applicant to return to her family in Sudbury. Shortly after another alleged threat, the applicant stated that she left the respondent November 29, 2012, taking the children with her, but no possessions. The respondent described that the applicant left with the children and a single suitcase without telling him. Ms. Parent helped pay for the applicant’s air travel and picked them up at the airport in Toronto. The applicant claimed to have contacted the respondent from the Toronto airport to let him know that she had gone with the children and that she was taking time with her family before making any decisions.
25The respondent was not asked for his approval of and did not consent to the applicant taking the children to Ontario, and he denied that the applicant called him from Toronto. The respondent tried calling the applicant repeatedly, but he asserts that it was three days before she called him back. When the applicant did call him, she told him that she was “on vacation” and thinking things out, but that she would come back. The respondent, jobless, waited at home in Comox with no family, but with the family’s debts to pay. The applicant did not come back.
After the breakup
The applicant sets up in Sudbury
[26]
After the breakup
The applicant stayed with her brother in Sudbury for a few months. She testified that she let the respondent know within a week or two that she was not coming back. As Ms. Parent confirmed, the applicant relied on gifts of money, food, and clothing from her family and from a Church organization. Kaleigh began school, though Zachary was too young yet to do so. The applicant also accessed some funds from the parties’ joint accounts for a short time.
27The respondent visited the children in December 2012, staying with a friend and then at his parents’ house. The applicant testified that at that time, the respondent had family in Sudbury: his sister Monica, who helped the respondent with a car during this visit, his parents (now both deceased since 2016), cousins, as well as childhood friends. The applicant was of the view that the respondent should have found work in Sudbury, where she had chosen to go.
28On his visit, the respondent felt that the applicant inhibited his contact with the children. The applicant at first only allowed the respondent to see the children for a few hours in the foyer of her sister’s house. The respondent testified that the applicant would not let him touch the children. The parties dispute what amount of time the respondent had alone with his children during his 10-day visit, but the respondent claims that the only time he had with the children away from the applicant was under her sister’s supervision. The applicant would not talk to him.
29In January 2013 the applicant filed her application in Ontario and the respondent answered in July. The respondent next saw the children in the Spring of 2013, and a couple further times that year. The respondent tried to communicate with the applicant, but to no avail.
30The applicant moved in with her sister and mother, and then into a two-bedroom apartment while she waited for residence from Sudbury housing. She received social benefits from Ontario Works until she began receiving support. The applicant testified that she had left all her household property in Alberta with the respondent.
31Eventually, the applicant got subsidized housing in Sudbury, a townhouse near her family where she continues to live with the two children. It is an older home, with expensive electric heat, but the children each have their own bedroom. The applicant pays all the household bills. The children are taken to school by bus. They continue to have contact with members of the respondent’s family in Sudbury, including the respondent’s sister Monica.
32The applicant has received significant assistance from her family. Ms. Parent sees her sister the applicant at least once a week. They walk their dogs together, talk on the phone, go shopping together, or visit family. The applicant has visited Ms. Parent’s camp, about 120 kms away. The applicant’s brother has worked overtime to earn enough to help her out. Ms. Parent drove the applicant and the children to appointments, the food bank, and the used clothing store, as the applicant had no vehicle. The applicant makes the best of what she has and has relied on social assistance and support from the respondent.
The respondent: carrying debt and losing everything
[33]
The respondent: carrying debt and losing everything
Meanwhile, back in British Columbia, the respondent was carrying $6,500 per month in household debt and cashing out his RRSPs to do so. The respondent also did what he could to visit his children and was surviving on RRSPs, his military pensions, and part-time work at the Comox base. The joint debts shown on the respondent’s Financial Statement of October 23, 2014 (Exh. 25) totalled more than $550,000, including the parties’ mortgage. All of the debt listed at Part 5 on that document was accumulated during the marriage.
34The respondent was able to keep carrying debt in this fashion for some eight months. He spoke with a bankruptcy trustee. Ultimately, he decided that he had to liquidate his assets and got rid of everything but the 2009 Dodge Caravan. Liquidation of assets went on over the course of six months. The house went into foreclosure when arrears on the mortgage reached $8,000. The applicant would not cooperate with the respondent in listing the house for sale when he approached her in 2014, so it, and any equity in it, was lost to power of sale. The respondent was out of the house late in 2014.
35None of the assets listed in the respondent’s Financial Statement of December 24, 2021 (Exh. 26) are still in the respondent’s possession. Assets foreclosed or repossessed included the matrimonial home at 2480 Kinross Place; a 2008 Dodge Ram; a 2011 Campion Explorer boat, trailer and motors; a Jayco RV; and a Honda ATV. The Campion boat was repossessed and sold at auction, and the respondent got nothing out of it. The respondent kept a 2009 Dodge Caravan for his use and sold it in 2017. The applicant retained her jewellery. There is no evidence that the applicant paid anything towards the joint debt or had the wherewithal to do so.
36The respondent put the household contents in a storage locker at the time he left the Kinross home. The respondent went to Edmonton finally to take a full-time job in mid-2014 and the items remained in the storage locker for five years. Much ended up ruined by mould and mildew, although the respondent tried to save some of it. He brought a lot of the applicant’s and the children’s belongings to them when he drove across country on three early trips to Sudbury after separation. The respondent also mailed the applicant boxes through the mail.
37Exhibit 16 contains the documentation concerning the debts and the items lost to liquidation, including: the house and vehicles; a trailer; $32,000 in income tax arrears assessed to the respondent in 2016 for 2012 and 2013 because of his use of RRSPs to carry the debt; $157 per month for a storage unit for five years; costs of shipping items to the applicant. There were also thousands of dollars owing to BMO for accounts in the names of both parties. The respondent was garnisheed by the Canada Revenue Agency in 2016 for taxes owing on the RRSPs; it took him a year and a half to pay off that debt. In 2022 the respondent paid off a final $4,600 deficiency owing on the home. He still has $71,000 in matrimonial debt to pay off.
38I find that carrying the matrimonial debt was crushing for the respondent. When the marriage broke up, the respondent was unemployed and liquidated significant RRSP savings to carry the debt. It is no answer for the applicant to assert that the respondent should have hastily sold all assets to diminish carrying charges. I can understand efforts by the respondent to salvage what he could after so much loss. The respondent struggled to stay afloat by delaying income taxes filings, so as to put off significant tax arrears from having liquidated his RRSPs. Accordingly 2016, the year of the reckoning, was an expensive tax year.
39In my view, these facts must be taken into account in determining when spousal support should commence, the duration of a spousal support order, and where on the range such an order should fall.
New relationships and standards of living
[40]
New relationships and standards of living
The respondent testified that he was unemployed or employed only part-time for about 21 months after he lost his job. He was able to work “casual contracts” at the local Comox military base, working statutory holidays and as a replacement for workers off sick. The respondent finally secured full-time employment as a power engineer in July 2014, at Air Liquide, a Quebec-based company; the respondent still works for this company in Edmonton. His base salary for a full year of 40-hour weeks was some $84,000 in 2014 and $118,000 for 2022. The respondent “helps keep the facility running” by working 250 to 350 hours of overtime; he uses the money to pay expenses for family and parenting time.
41The respondent detailed a lot of costs: “Braces and things cost money”. Airfare, car rental, and fuel costs have increased substantially, and he wants to make sure to see his children every 36 days, as he is allowed to do by court order. However, he has had less money to do so in the last year and a half, given garnishment of his wages to pay off outstanding arrears of support. While the applicant complains that the court must not allow the respondent to carry on with his “lavish lifestyle”, such a lifestyle has not been proved.
42Indeed, when the respondent first took the Air Liquide job in Edmonton in July 2014, he lived there in a friend’s basement, paying $600 per month in rent. But the respondent became involved with Suzanne Dalton, a lawyer. He continued to live in his basement apartment until 2018, when he moved in with Ms. Dalton in Sherwood Park, Alberta. The applicant was made quickly aware of the relationship. She testified that she communicates well with Ms. Dalton, who has helped resolve issues between the parties.
43The applicant has a boyfriend named Sean Lee, who lives in a co-op in Hanmer, about five minutes from the applicant’s home. The applicant and Mr. Lee met in 2016. According to the applicant, Mr. Lee contributes no money towards the applicant’s household and has never lived at her residence. They are not engaged; the applicant points out, “I’m still married.” The applicant denies that they are common-law partners. They have occasionally stayed at each other’s homes and see each other only about once per week, even in the summer or during Christmas holidays, when the children are with the respondent and they could have more time. According to the applicant, she and her children have not taken family vacations with Mr. Lee, but he has been on family outings and to family camps.
44Exhibit 17, Tab 31 is a bundle of images and messages from social media postings by the applicant that demonstrate a very strong attachment between the applicant and Mr. Lee. In the items in that exhibit the applicant describes Mr. Lee as “the best thing that ever happened to me. Besides my kids. I love this man to death.” Photographs and other documents show that the two are obviously very close and affectionate.
45The applicant testified that she cannot afford extravagant vacations with her children. She and the children visit cottages owned by her siblings and her mother, where they socialize with her family, enjoy the outdoors, and engage in fishing, bonfires, boating and using ATVs. The applicant complains that when the children are with the respondent, they drive to Vancouver Island, and go boating, fishing, camping, and tubing. None of this is surprising or extravagant, given where the respondent lives; in fact, what the children do in Ontario with the applicant and her family seems quite similar.
46The respondent took the children to Punta Cana on a family vacation and wanted to teach them how to ski. The applicant complains that the respondent has money to take the children to Canada’s Wonderland, hockey games in Ottawa and North Bay, shopping, and bowling. Even if the applicant had enough money, she is unable to drive long distances to engage in such things. Although the applicant portrayed the situation as uneven and unfair, it is hardly surprising that the respondent wants to spend time with the children away from Sudbury, and not unreasonable of him to take the children on enjoyable outings, given how infrequently he can see them.
The evidence of Sean Lee
[47]
The evidence of Sean Lee
Sean Lee lives in Hanmer, ON and works at HK Food Services. Although he was required by the court to produce certain documentation, Mr. Lee was not completely compliant. He testified that he felt like he was “being put on trial.” He obliterated certain transactions from his bank records, claiming to have done so to protect his and his deceased wife’s privacy, and stating that deleted entries represent payments for her expensive experimental chemotherapy treatments. Mr. Lee unilaterally chose to do this even though he had been assured by the court that his unredacted records would be sealed from public view.
48The tenor of Mr. Lee’s evidence was set early on. I have no doubt that Mr. Lee knew that he was being called to speak about his relationship with the applicant, but he claimed not to know why he was being called. The issue was an obvious one in relation to support, and I have no doubt that the applicant and Mr. Lee have spoken about this case a lot.
49Mr. Lee testified that he met the applicant in May 2016. They enjoyed each other’s company and by September 2016 were spending more time together. They went on many dates and in 2017 engaged in an intimate relationship that lasted until about three years ago. He did stay over at her house many times as a friend after bringing her back from the hospital or emergency room. As long as Mr. Lee has known her, the applicant and her children have resided at their home on Christa Street, in subsidized housing.
50Mr. Lee asserted that he and the applicant have never been in a spousal relationship. To him, only marriage counts, and he is still in the process of grieving his wife, who passed away in 2014. Her clothing, photos and possessions are still in his house. Mr. Lee claimed that he only got around to cancelling his deceased wife’s telephone plan in 2021, because he still grieves her passing. He denied any suggestion that the applicant might be benefitting from that plan. Transfers shown in Mr. Lee’s bank records were only between his own accounts, to avoid creditors and make necessary payments for his wife’s past experimental medical treatments; they had nothing to do with the applicant.
51Mr. Lee testified that he did take the applicant to a few appointments with Dr. Baldisera, and he was invited to stay in the room during the appointments. The applicant is not on Mr. Lee’s health plan and he stated that he does not follow her health now. He has never paid for medication or psychological treatments for the applicant.
52Mr. Lee expressed indignation that “there is a misconception that [he] was staying” with the applicant while in an intimate relationship with her. Mr. Lee stated that he has not stayed over at the applicant’s home during the last three years, which is coextensive with the end of their intimate relationship. Mr. Lee explained that the applicant “has not been well.” She has had to go to the emergency room four times in recent years. Mr. Lee brought the applicant home from the hospital several times but left in the early morning hours once the applicant fell asleep. He explained that he did not sleep over even on those occasions because he had not brought anything with him for overnighting.
53The applicant rarely stayed over at Mr. Lee’s home. In Mr. Lee’s evidence, he recalled a single occasion in 2017 and 2018, and never at all in 2019 and onwards. The applicant and the children did come over on Sunday afternoons to use Mr. Lee’s pool. Even if the children were being parented by the respondent, the applicant and Mr. Lee did not take the opportunity to stay over at each other’s homes, although the applicant has visited Mr. Lee on Saturdays and Sundays. Mr. Lee’s personal life and work have limited his ability to be with the applicant in the last three years. And besides, he noted, the applicant has a dog at home to take care of.
54Mr. Lee and the applicant remain “close”. They speak on the phone and they text-message each other. He checks on her. He sees the applicant about one and a half or two hours a week on Sunday afternoons, and briefly at other times. His work does not leave him much more time than this, as he claims to work six days a week, from 5 or 6:00 a.m. Even on holidays like Thanksgiving Mr. Lee is often on call for work if he even takes the holiday off.
55Mr. Lee gets on well with the applicant’s children. He has attended floor hockey games at Zach’s school, and in September 2022 also started taking the applicant’s son Zach to hockey on Fridays or Saturdays if the applicant could not. He has watched Zach’s games and bought Zach food afterwards, but he did encourage Zach to call his father, the respondent. He attended Kaleigh’s grade 8 graduation when the respondent could not.
56Mr. Lee initially testified that he does not give gifts to the applicant’s children, but he acknowledged helping Kaleigh pay for $140 worth of presents for the applicant and the respondent. In 2017 and 2018, Mr. Lee helped the applicant by paying for gifts for the children. Mr. Lee also testified that he bought Zach an (inexpensive) bicycle and helped the applicant pay for a trampoline. Mr. Lee has written checks for Zach to have pizza at school ($70 once or twice) because the applicant “has no checks”.
57The applicant and Mr. Lee present themselves as boyfriend and girlfriend to their friends, but Mr. Lee reiterated that he has not yet moved on from the death of his wife. They have never spoken about getting engaged. Mr. Lee and the applicant have hosted parties together, most recently at Christmas 2022. Early in their relationship they went out with friends, but not since 2019. Mr. Lee does not have the energy that he had, and the applicant suffers from frequent afternoon headaches.
58When there is nothing to prove otherwise, a witness who is minded to do so can claim what he wants. Mr. Lee claimed that he has not put any money into the applicant’s accounts, and he does not pay for the applicant’s insurance. They only give each other small gifts. Mr. Lee did buy the applicant a ring and a chain, but nothing since 2017. Mr. Lee has paid for things for the applicant from his workplace, like fruit, eggs and breakfast meats, because these are “just nice things to do.” He provides produce to the applicant and her family once every two weeks. Mr. Lee bought food for the applicant’s dog up to about a year ago. Items in his records that could have been gifts for a woman Mr. Lee generally claimed had been for a “niece”, and not for the applicant. In recent years Mr. Lee has not bought birthday gifts for the applicant, though he does occasionally buy her flowers on Valentine’s Day, Easter, or her birthday. He allowed her the use of his deceased brother’s 2007 Ford F150.
59Mr. Lee has not taken the children on trips with the applicant. Mr. Lee went camping with the applicant and the children in 2018. Mr. Lee went to the applicant’s sister’s cottage, but only once the applicant’s sister invited him personally, and not as a guest of the applicant. Mr. Lee has known the applicant’s family for a long time. Mr. Lee and the applicant celebrate Christmas Eve and New Year’s Eve together, but they do not sleep over. He has never contributed to joint gifts for people with the applicant. Mr. Lee visited the applicant’s mother’s camp, but slept nearby in his RV, rather than at the camp; the applicant did not sleep with him.
60Mr. Lee was indicated as the applicant’s spouse on her father’s 2019 obituary. Mr. Lee stated that he had a close relationship with the applicant’s father, but he was not responsible for how his name appeared in the obituary. Nor did Mr. Lee have any control over an indication in his own mother’s obituary in 2017 that the applicant (“Angela”) was his spouse; he did not write the obituary.
61Overall, I reject Mr. Lee’s and the applicant’s denials of a long-term committed relationship. Mr. Lee’s insistence that their intimate relationship ended three years earlier I find convenient but not credible. Mr. Lee’s attentions to the applicant, to her children, and to her family show a depth and pattern that the relationship he and the applicant have described does not account for. Friends believed them to be in a relationship. I do not believe Mr. Lee’s claims that they do not overnight at each other’s homes, or that he merely sits up with the applicant on her return from the hospital until she sleeps. I reject his claims that many of the entries in his bank accounts do not represent money or gifts that went to the applicant, or that the applicant did not benefit from his deceased wife’s cellphone plan. I see Mr. Lee’s editing of his records at least in part as an attempt to hide relevant items from the court.
62I do not find Mr. Lee to be a reliable witness, and I find the applicant’s agreement with this evidence in her own to cause significant concern about her credibility. The applicant has reasons both at this trial and with respect to her subsidized housing to sanitize and minimize her relationship with Mr. Lee. I find that that is what she has done, and dishonesty on such an issue causes me to question many claims throughout her evidence.
63But rejecting Mr. Lee’s and the applicant’s evidence about their relationship does not create positive evidence of a conjugal relationship. While I am very suspicious about the nature and extent of Mr. Lee’s relationship with the applicant, evidence of any significant degree of “shared shelter” or financial or intimate interconnection is lacking, and I am unable to conclude that the applicant and Mr. Lee are in a committed long-term conjugal relationship: see, ee.g., Climans v. Latner, 2020 ONCA 554, at paras. 57-62; Molodowich v. Penttinen, 1980 CanLII 1537 (ON SC), at para. 16. I do conclude that Mr. Lee for some time has provided significant emotional, financial, and other help to the applicant that can be taken into account in the various determinations that this court must make.
The evidence of Suzanne Dalton
[64]
The evidence of Suzanne Dalton
Ms. Dalton is a lawyer, having started law school in 2012, when her daughter was 17 years old. She articled in Edmonton, where her sister was living, and met the respondent in 2015. They started dating. Ms. Dalton has been of tremendous assistance to the respondent in seeing his children. Ms. Dalton’s open acknowledgement of her relationship with the respondent stands in stark contrast with the evidence of Mr. Lee about his situation with the applicant.
65Ms. Dalton has helped the respondent pay his costs of seeing his children in the last two years, since his income was being garnisheed. She has helped pay the costs of getting the respondent’s children out to visit. Ms. Dalton described the respondent as having an “amazing” relationship with the children, with whom he talked almost every day. Zach is “all over” his father when the two are together.
66Ms. Dalton also helped when the respondent’s children were stuck in Toronto. At Christmas 2017, the applicant did not put the children on the flight from Sudbury to Toronto that the respondent had paid for. Ms. Dalton therefore bought another ticket for the children. The respondent had been intending to join up with the children in Toronto but had to fly back to Edmonton for work when they did not arrive at Toronto. The children finally arrived, but later than anticipated. A similar situation occurred in December 2019 after a trip to Punta Cana. Ms. Dalton had called the applicant to pick up the children from Toronto after the children’s connection was cancelled, but the applicant did not pick up the children. The children spent two nights in a hotel.
67Ms. Dalton tried to ensure that the applicant knew how her children were doing when they visited with the respondent. She would send the applicant pictures of the children during their visits and would chat with the applicant. According to Ms. Dalton, that rapport ended once Justice Cullin ordered that Ms. Dalton and Mr. Lee provide financial disclosure related to this hearing. I accept her belief as a plausible explanation.
68Ms. Dalton testified that the respondent was giving her $1,000 per month to help with their expenses. The amount was dictated by his financial limitations. He does not have a vehicle in his own name. Ms. Dalton and the respondent do not have any joint accounts. The respondent does use a credit card account in Ms. Dalton’s name to pay for access costs.
69Ms. Dalton and the respondent started “Seaquest Fishing Adventures” in 2016, but the business is now dissolved. Ms. Dalton was the 100% shareholder of Seaquest. The main asset of the corporation was a boat that she and the respondent bought in 2015 for $24,500. They made no income from the business. The boat is now in Ms. Dalton’s name. Just as with an RV also in Ms. Dalton’s name the respondent has a half interest in it.
70I have no evidence that Seaquest Fishing Adventures ever succeeded in any way as a money-making venture for the respondent or that his half-interest in the boat or RV demonstrates any extravagant expenditures by the respondent that reveal he has more means than he has otherwise testified to. The respondent has been slow to file his financial accounting in this case, but I do not believe that the respondent is hiding a lavish lifestyle; the evidence just is not there.
71The respondent and Ms. Dalton are in a long-term committed relationship that they do not deny, and Ms. Dalton has been kind to the applicant and of great assistance in facilitating the respondent’s parenting time.
The applicant’s health issues
[72]
The applicant’s health issues
The applicant claims to have had significant health issues since returning to Sudbury. She testified that after her separation from the respondent she suffered severely from stress and underwent counselling. For depression and anxiety she was treated in 2017 by Dr. Koka, from whom no evidence was adduced at this trial. A carpal tunnel surgery mishap in 2016 left the applicant with nerve damage in her left hand, about which no medical evidence has been adduced. The $30,000 settlement of her claim from that mishap went towards paying down her credit card and purchasing a used vehicle, her 2011 Dodge Durango. In this context I recall no evidence from the applicant about Mr. Lee’s loan to her of his brother’s pickup truck.
73In 2019, the applicant claims to have suffered a concussion when snow from a building roof fell on her head and neck while she was out shopping for a funerary urn for her father. She was taken to hospital. Although she was not diagnosed with a concussion, the applicant was for a time under the care of a concussion clinic, and a lawsuit related to this incident is still before the courts. The applicant testified that, as a result of that injury, she suffered from nausea, dizziness, and double vision, and was unable to function. She claims to suffer still from the effects of the concussion, and receives help with the children and in driving, housework and shopping from her family and Mr. Lee, though she claims that Mr. Lee never moved in to help her. Mr. Lee has driven her to the concussion clinic and attended a few appointments with her.
74The applicant’s sister, Ms. Parent, also helped the applicant after her arm surgery and her concussion. She took care of the applicant’s children, and helped with the house, meals, and groceries. It appears from Ms. Parent that things have started improving around the house as the children got older and could help out. Because the applicant could not drive, Ms. Parent drove her to physiotherapy and to medical appointments. Ms. Parent took notes because the applicant has had trouble remembering things accurately.
75The applicant took part in the concussion clinic for more than a year. That participation was covered by OHIP, except for related chiropractic treatment, for which she pays. The chiropractic treatments could be covered by the respondent’s health plan, but when the applicant was unable to get that plan to cover the first treatment, she gave up, as she did not want to argue with the respondent about it. The applicant sees psychologist Denis Lapalme and engages in treatment for which she pays. While the applicant believes that these sessions could be claimed through the respondent’s insurance, she foresees difficulties with the respondent, and so will not speak to him about it. The applicant has not availed herself of the opportunity to get assistance in paying for these services from the respondent’s insurance, for which I do not fault the respondent.
76The applicant also claims to have been diagnosed by health professionals with PTSD, depression, and anxiety, and argues that the respondent’s chronic underpayment of support had an impact on her emotional health. No medical or psychological evidence has been forthcoming concerning any of these diagnoses. The applicant has been on a variety of medications from 2016 onwards (Exh. 6). Most were prescribed by her prior nurse practitioner. I am not medically trained and can determine little from the list of these medications.
77On October 30, 2021, the applicant collapsed while shopping, and was taken by ambulance to the hospital, apparently suffering symptoms of a seizure. A second such incident occurred December 17, 2021 at her uncle’s funeral. She has been told by a neurologist that he “suspects syncope”. There have been other such incidents. An ECG test and heart monitor were apparently being ordered. No medical evidence was offered about anything but the concussion, and a hearsay diagnosis of suspected “syncope” is of little assistance.
78The applicant testified that she is not seeking spousal support as a result of not being able to work because of the concussion and the ulnar nerve damage.
The applicant’s employment
[79]
The applicant’s employment
In Cold Lake, Alberta, the couple had agreed that the applicant would take care of the children at home. According to the applicant’s testimony, that made vacations easier, given the respondent’s shift work schedule. In an October 2014 affidavit, the applicant rather claimed that the reason for her not working was to save on daycare costs; vacations were not mentioned. The parties agreed that the applicant would return to work when the children were in school, but they never discussed specifics. The applicant claims to have understood that to mean high school, which interpretation I reject; like the evidence concerning the applicant’s relationship with Mr. Lee, I find this claim by the applicant to be implausible and purely self-serving.
80The applicant states that her goal is to be self-sufficient, but I see little evidence of efforts made by the applicant to achieve self-sufficiency. According to the applicant, after the couple’s break-up in 2012, the applicant did not return to work right away because she was dealing with the effects of the respondent’s physical and psychological abuse and she was “setting boundaries” and taking counselling. The applicant was also “couch surfing” and needed a stable home. However, I have only the applicant’s evidence that poor physical or psychological health prevented her from working to this point. No medical or psychological evidence has been offered for this period. I am not satisfied that the applicant was unable to work as a result of poor psychological or physical health.
81Up until October 2014, the applicant explained that she took no steps to get a job, as her son was not yet in school, and she could not afford daycare. Even when this trial began in 2022, the applicant testified that she had to be available to the children every day. She helps them with their life issues and teaches them life skills. She gives them rides to school and is typically home when they return home. If she worked full-time, she would not be able to do as much of this as she does now. I find that not working in order to be constantly available to the children until high school is a luxury that the applicant could not afford and had no right to expect.
82In Sudbury, the applicant was initially able to get social assistance from Ontario Works. Accordingly, in October 2014 the applicant took career counselling and did workshops, apparently (on her evidence) to avoid having income imputed to her by Ontario Works. The counselling included work on resume writing and applying for jobs.
83Also according to the applicant, from October 2014 until the present, she did not seek full-time or part-time employment because of health issues. But she has done unpaid work, such as being a lunch monitor at her children’s school and being part of many boards and associations and groups such as the board of Victim’s Services. She described making presentations to various groups and participating in a police workshop for victimized women. She was paid to do a commercial about violence against women, and one for Canadian Tire, and worked 10 to 13 days on a movie set. Ms. Parent confirmed that she and the applicant took part in not-for-profit volunteer work at the women’s shelter and the Coalition to End Violence Against Women, and that the applicant has engaged in modelling jobs.
84The applicant has also had the ability to take courses, as she has taken 6-week courses on TV commercials and modeling. She has also taken various courses in such subjects as computing at College Boreal for upgrading the qualifications that she had as a social service worker. She has taken a course on “self-compassion”.
85In the absence of medical or psychological evidence, I am satisfied that at least up until the 2019 “concussion” incident any issues with the applicant’s health would not have prevented her from working full time. The applicant has taken schooling, done counselling, engaged in substantial volunteerism, and taken part in commercials and a film. Already before her marriage she had trained in social work, and, until the birth of her children, had worked as a teacher and in social services. She took the children from the respondent and left British Columbia to return to the bosom of her family, who were prepared to help her in every way. I am therefore left to conclude, and do conclude, that the applicant did not work after she had returned to Sudbury and the children were both in school because she did not want to work.
86Dr. Baldisera, in charge of the applicant’s treatment team at the concussion clinic, offered evidence. Dr. Baldisera described the applicant’s various ongoing health issues that stemmed from the concussion. Hearsay diagnoses regarding the applicant’s mental health, from experts who have not been called as witnesses on this proceeding, but which were relied upon by Dr. Baldisera to construct the applicant’s medical background, do not constitute evidence of that medical background for the purposes of this trial. The applicant was treated by the concussion team between May 2019 and January 2021, when she was discharged from the concussion clinic.
87The applicant testified that because of her 2019 concussion she has some bad days and headaches and often needs to lie down, which is also confirmed by Ms. Parent. According to Ms. Parent, the applicant had to stop some volunteer work as she did not any longer have the capacity to participate in it. The applicant testified that she cannot function full days. She is also affected by the 2016 lacerated ulnar nerve in her left arm (it is to be noted that she is right-handed). The applicant testified that her issue with potential syncope means that she could lose her driver’s licence. She is also on medication for a potential autoimmune issue relating to her thyroid. The applicant had none of these issues at the time of separation, and I have no evidence that the applicant suffered any health issues during the couple’s relationship. The applicant has not applied for support from the Ontario Disability Support Program for these health problems.
88Dr. Baldisera described that at the conclusion of her treatment, the applicant continued to have ongoing symptoms. The applicant still had visual dysfunctions, and other referrals were possible. But the applicant presented to Dr. Baldisera a far more upbeat assessment than she did to this court. The applicant reported to the clinic being able to engage in most activities that she considered important, so long as she paced herself. However, there is no evidence from Dr. Baldisera that the applicant is unemployable. I find that the applicant remains employable, though perhaps not on a full-time basis.
The respondent’s parenting time
Exercising parenting time from across the country is expensive and difficult
[89]
The respondent’s parenting time
The applicant testified that when she brought the children to Sudbury she was not concerned about access issues. She claims instead to have been worried about her and the children’s safety. However, the applicant claims that since the respondent had said at one point that he would possibly look for work in Sudbury, he should be entirely responsible for his parenting time costs. For he instead chose to work and stay in Alberta. I find remarkable this lack of insight by the applicant into how her own unilateral conduct in removing the children from British Columbia to Sudbury, Ontario has created a financial and structural barrier to the children benefitting from parenting time with the respondent.
90The respondent visited the children at Christmas in 2012, and stayed at his father’s house in Hanmer, which was close to the applicant and her family. Ms. Parent confirmed that the respondent brought gifts for the children, as well as a television and some personal items belonging to the applicant. The applicant’s claim that the respondent did not visit the children again for some eight months is exaggerated, as he saw them in May and June. In his temporary order of October 30, 2014, Justice Poupore established shared parenting and fixed the respondent’s access to six days “every second week” when he is in Sudbury, while cautioning the respondent about the costs of so much contact. A later order established parenting time for the respondent of seven days every five weeks.
91As the applicant sees it, the difficulties inherent in the children’s travel between Ontario and Alberta have been a bone of contention between the parties. It is clear that she believes that the blame for the difficulties created by the respondent’s parenting time issues are attributable to him. She testified that the respondent is unreasonable and controlling, and overly demanding of her to facilitate his parenting time.
92According to the applicant, the respondent travelled for visits with the children up until 2016. He would stay with his family, as he had many family members in Sudbury. After 2016 there were times, maybe once a year, that the respondent flew to Toronto and then would drive to Sudbury to pick up the children and returned with them to Toronto and then would fly with them to Edmonton. From 2016 the respondent made arrangements for the children to travel to him for access. He paid for an attendant to assist them on flights from Sudbury to Toronto and then on to Edmonton. The applicant’s evidence is vague in comparison to the well-documented numerous visits to Sudbury recorded and testified to by the respondent, which are set out below. I accept the respondent’s evidence on this.
93Ms. Dalton testified that what complicated the respondent’s ability to see the children is the frequent cancellation of flights from Sudbury to Toronto. The children would sometimes get stuck unattended in Toronto. Once Zach turned 12 years old the children were able to go on their own without airline supervision, which was simpler and cheaper. Before that the respondent had had to pay for supervision for the children during each leg of the trip, or he himself had to travel to Sudbury to escort the children, which he did on some ten occasions.
94The respondent testified that the applicant does very little to facilitate his visits to see the children. When he sends e-mails about visits, the applicant tells him that he can’t “just show up”. But I find that the respondent does his best to inform the applicant in advance of parenting and travel plans. For example, Exhibit 17, Tab 32 contains e-mail correspondence between the respondent and the applicant in which the respondent proposed his schedule of visits for all of 2022 on January 22 of that year.
95The respondent describes the challenges that he faces. He has to rent a car just to go from the Sudbury airport to the applicant’s house and back. The applicant brings the children late to flights and misses them, requiring time and effort to re-book and additional charges. Locations of pickups are contentious. As the respondent sees it, the applicant contributes almost nothing while the respondent has been required to travel from Edmonton with little sleep, to drive up highway 69/400 in bad weather conditions, and to get stuck at the airport.
96Contrary to the applicant’s claims about family that the respondent has in Sudbury, the respondent explained, and I accept as accurate, that he does not consider himself a Sudburian and does not feel close to family that he does have in Sudbury. He has “no support system” in Sudbury. Of his family, his parents passed away in 2014 and 2015, and he has only a half-sister left in Sudbury. He does not find Sudbury to be a welcoming community.
97The respondent explained that he tried to visit the children every 36 days, but that sometimes he could not afford to do so. Prior to the 2021 garnishment of his wages this goal was already difficult, given flight cancellations and other problems. The 2021 garnishment only made things more difficult.
98By the respondent’s calculation and on his evidence he has made some 72 trips to Sudbury in the last ten years – on average more than seven times per year. On 10 occasions he flew to Ontario and back on the same day. Exhibit 27 is a list compiled and introduced as part of his evidence by the respondent as representing dates between 2013 and 2022 when the respondent had parenting time with the children. Exhibits 18 and 27, and the evidence of the respondent and Dalton, show the following about the respondent’s efforts to have parenting time with his children since 2013:
a. 2013: 5 occasions. In December 2012 to January 2013 and in May 2013, the respondent drove from Courtenay, British Columbia to Hanmer, Ontario, some 8,200 km there and back. He also saw the children in June, August and November.
b. 2014: 10 occasions. In June the respondent drove, another 4,100 km. He also saw the children in January, July, twice in August, twice in September, October 16-23, November 17-23, and December 16-21.
c. 2015: 9 occasions. January 13-18, February 25-March 1, April 7-12, May 19-24, July 1-5, August 26-30, October 23-25, December 1-6, and December 31 to January 3, 2016.
d. 2016: 8 occasions. February 11-15, March 22-27, and May 4-9. In July, the respondent travelled to Hanmer to pick up the children and returned with them to Edmonton, Alberta. He also saw the children September 8-12, October 20-24, November 30 to December 5, and December 27 to January 4, 2017.
e. 2017: 7 occasions. February 8-13, March 22-27, and May 3-8. The children were with the respondent from July 11 to August 14, but the respondent had to travel to Hanmer to pick up the children and return with them to Edmonton. The respondent saw the children September 20-25, and October 30 to November 6. The respondent was to have Christmas access with the children and planned to pick them up in Toronto. However, the children missed their flight, necessitating the respondent’s return to Edmonton for work, and then his return to Toronto to pick up the children. He saw the children from December 26 to January 8, 2018.
f. 2018: 7 occasions. February 7-12, March 21-26, May 31 to June 4, September 19-24, and October 31 to November 5. He also saw the children July 10 to August 13, and December 26-31, after travelling to Hanmer to pick them up.
g. 2019: 7 occasions. February 6-11, March 19-24, May 1-6, September 18-23, and October 30 to November 4. After picking the children up in Hanmer, he was with them June 9 to August 12. The respondent and Ms. Dalton saw the children December 21-31, but the visit was eventful. The children’s return flight from Toronto to Sudbury on December 29 was cancelled; they stayed in Toronto two nights with Ms. Dalton until the next available flight to Sudbury on December 31.
h. 2020: 5 occasions. Notoriously the first year of the COVID 19 pandemic, the respondent saw the children February 5-10, September 16-21, and November 11-16. Because of the pandemic the children stayed with the respondent March 10 to June 8. They returned to Hanmer briefly, and the respondent saw them again July 7 to August 10. The costs for airfare that year was significant, with extra tickets booked for the children to return briefly to the applicant in June and then return to the respondent in July for the summer, as described below.
i. 2021: 8 occasions. January 1-6, February 17-22, March 31 to April 5, May 12-17, October 13-18, and November 24-29. For visits July 20 to September 1, and December 16-26, the respondent travelled to Hanmer to take the children back to Edmonton.
j. 2022: 5 occasions. February 2-7, April 27 to May 2, and October 14-17. The respondent saw the children July 19 to August 29 after he picked them up in Hanmer, and saw Zach December 26 to January 2, 2023 after picking him up in Hanmer. On that occasion, Kaleigh chose to remain in Sudbury.
99The respondent explained that air tickets, Airbnb’s, and rental cars “cost a lot”. Exhibit 15 is a voluminous binder with receipts for parenting expenses between 2013 and 2021. The receipts include every conceivable item: airfare, car rental, hotel, Airbnb’s, gas, restaurant, food and refreshment, cleaning supplies, parking, and entertainment. Although the applicant complains that the respondent overcharges by including the costs of taking the children to Canada’s Wonderland (as an example), I find that the respondent is entitled to include fees for travel with the children and entertainment of them, and food and drink for himself when he is away from his home, since he has no home or roots or permanent sources of entertainment for the children in Sudbury: see, e.g., Fontaine v. Andal, [1998] S.J. No. 510 (Q.B.), at para. 15; Wright v. Fulop, 2002 ABQB 977, at para. 11. The applicant also complains that this volume was in fact not properly made an exhibit. Even presuming this to be the case, I do not require its assistance, given the respondent’s evidence, which I find sufficient: Pace v. Barry, 2019 ONSC 1739, at para. 19.
100The respondent was able to testify about his costs, and his testimony was completely reasonable, and I accept it. The costs for exercising parenting time have increased substantially over the years. In 2022, the respondent only saw the children five times, when he usually saw them seven or eight times. He flies the children out to see him at Christmastime and in the summer. The tickets for the two children are now $2,800 return between Sudbury and Edmonton. He used to also pay $125 per child per trip leg as an airline “accompaniment” fee to ensure the safety of his unaccompanied children. Baggage would be an extra $66 per child per trip. Fortunately, once Zach got old enough the children could fly unaccompanied.
101To give an idea of the costs of bigger ticket items when spending five days with the children, the respondent provided documentation for an anticipated trip to Sudbury between February 15 and 20, 2023 (Exh. 28). The airfare for the respondent alone would be $1,342, return. Accommodation prices for five nights with space for the children ranged between $1,450 and $850. I accept the evidence of the respondent that he is not close with his family in Sudbury and that he would have to rent accommodations. On top of that would be the cost of renting a car, some $400. Not yet included would be the cost of food for the children and the respondent, and gas for the rental car. I would put the cost of a visit such as this at easily around $3,500.
102The respondent testified that the binder of receipts does not represent all his costs in accessing his children. He estimated that his costs to exercise parenting time amounted to some $35-$38,000 per year. In financial statements, the respondent has claimed an average of $2,500 or $3,000 per month to exercise “access” to the children.
103I find that, given the costs of: airfare for the respondent and Ms. Dalton (on occasion) and/or for the children and for (in the past) airline supervisors; accommodation, including at the Toronto airport; car rental in Ontario; food in Ontario; entertainment for the children in Ontario and when the respondent accesses the children in Ontario; extra bookings after cancelled or missed flights; the cost of gasoline for driving across country or in Ontario; and taking into account the long visit the children had with the respondent in 2020 in the early days of the pandemic and significant air travel costs for the children back and forth between Alberta and Sudbury on short notice that year, the respondent’s parenting costs have averaged $30-36,000 per year from 2014 onwards.
104The respondent was examined extensively on the expenses that he set out in his various financial statements. I am satisfied that the respondent had a tendency to exaggerate his expenses for various contributions to Dalton’s household. I accept, however, that the respondent paid more towards expenses before his wages were garnisheed beginning in 2021, as a result of his duty to repay significant arrears of support. Garnishment severely limited the respondent’s ability to contribute meaningfully towards expenses, as documented in his own evidence and the evidence of Dalton. I do not find that the respondent has in any significant way exaggerated his costs of parenting time. The items to be paid for that are raised by the respondent in evidence must necessarily be paid. A reasonable observer can calculate the range of costs of such expenses given the frequency of the respondent’s visits and the costs of transporting the children to visit with him in Alberta.
105However, I reject any suggestion that the respondent should not have to pay child support during the months that the children were forced to remain in Edmonton in 2020 as a result of the pandemic. Their principal residence was still in Sudbury with the applicant, who had to continue to maintain the household for them and carry other expenses related to their support.
Travel issues
[106]
Travel issues
I find that the applicant is generally unable or unwilling to assist the respondent in exercising parenting time with the children, either by contributing financially or in assisting with the extensive travel that is required. She minimizes the tremendous efforts made and expenses borne by the respondent to visit with his children and to arrange for them to see him. The applicant presents as almost oblivious to the difficulties that this causes to the respondent and to the potential dangers to which the children are exposed. Efforts that the applicant’s friends and family have made to assist are understandably limited.
Stranded at the airport
[107]
Stranded at the airport
Arranging for the children to visit him in Alberta has been very difficult and expensive for the respondent. When the children were younger, the respondent had to pay for adult accompaniment for the children on each leg of their travel, to ensure their safety. He has tried, with little success, to encourage the applicant to pick up the children at the airport in Toronto, to save money and ensure their safety.
108In the applicant’s view, air travel from Sudbury to Edmonton is the best way for the children to travel to visit with the respondent. The applicant thinks that flights between Sudbury and Toronto are generally reliable. But, if the children find themselves stuck at the Toronto airport because of a late arrival from Sudbury and a missed connection, the applicant believes that she could get a ride from a friend or take a limo or a flight down to pick them up. She would “find a way,” and “figure it out” if it happened. I can understand why the respondent wants more certainty than that for the children.
109Although the respondent worries about the children being stranded in Toronto because of a bad connection, the applicant denies that the children were ever stranded there. According to the applicant, the worst that happened was an occasion when the respondent and Ms. Dalton had flown with the children to Toronto, but there was a problem with the Sudbury connection. The respondent had to fly back for work, so the children waited with Dalton for the next flight to Sudbury. The applicant does not remember that they were at the airport for two days, as Ms. Dalton’s and the respondent’s evidence claimed. Her job was to pick the children up at the Sudbury airport. I accept that the children had to stay over in Toronto, and I find that it was fortunate that Ms. Dalton could be there for the children and that the respondent and Dalton made the effort to ensure that the children were safe.
Pandemic time with the children
[110]
Pandemic time with the children
Events in the spring of 2020 are very descriptive of the parenting situation and its attendant difficulties and costs for the respondent. There are indications in e-mail correspondence between the parties that they had very different views about the applicant’s willingness that the children stay with the respondent from March into June of 2020, at the inception of the COVID-19 pandemic. It appears that both parties initially viewed it as safer for the children to remain with the respondent in Alberta where they were visiting when the pandemic was declared.
111By April and into May 2020, the applicant became more insistent that the children be returned to Ontario, and she proposed flights that she believed could be used. The respondent did not want to risk the children’s health and was concerned that they could end up unsafely stranded in Toronto because the applicant would not agree to pick them up there. In addition, in his view, options for flights on which the children could fly unaccompanied were limited. The respondent proposed that the children just stay with him into August, as he was due to have the children in the summer anyway; that way there would be no unnecessary travel. Travel was uncertain and unsafe, and flights were often cancelled.
112As the respondent described, by mid-May, the applicant “stopped being co-operative”. She threatened to bring a motion to get the children returned to her, and even suggested that the respondent drive them from Edmonton to Sudbury. Finally, the respondent paid for the children to travel to Toronto in June 2022, losing $800 to do so after stickhandling the cancellation of three flights. He does not know who picked up the children to take them to Sudbury. Some three weeks after returning to Sudbury, the children went back to Alberta to spend most of July and some of August with the respondent. The respondent testified that the flights to Sudbury and then the returns to Edmonton cost him more than $6,000, as air ticket costs “at 3-days notice were through the roof”. The applicant, of course, paid for none of this travel.
Sharing the travel?
[113]
Sharing the travel?
The respondent believes that both parents have a responsibility to facilitate the children’s time with each other. However, instead of the applicant it is Ms. Dalton who has been assisting the respondent by helping with the costs of parenting time. In the last year and a half, since the garnishment of the respondent’s wages, she has helped pay for the children to visit the respondent. The respondent has had little money yet to repay Ms. Dalton.
114The respondent has asked the applicant for her assistance with the significant travel involved. He has asked the applicant many times at least to get the children to Toronto, which would have cut the respondent’s travel time in half and make the traveling much easier. Moreover, he continues to worry about the children’s safety on transfers in Toronto and would prefer to have the applicant drive the children to Toronto, and he would do the rest.
115The applicant minimizes problems relating to the children’s travel to see the respondent and taxes him with behaving unreasonably about it. She asserts that, if flights from Sudbury are cancelled or missed, the respondent accuses the applicant of costing him unnecessary expenses for rebooking. And she counters that all that is necessary is that she bring the children to the airport for the next flight. In the applicant’s view, Kaleigh is now “good to travel” unaccompanied with her younger brother. They have done it many times, and they know the Toronto airport. If something happens, the applicant is of the view that the children can call her. They have not yet been stranded alone in Toronto, she says, although I have found that to be a result of the respondent’s and Ms. Dalton’s cautious planning.
116With respect to the issue of driving the children to Toronto to simplify travel arrangements for them to Alberta, the applicant testified that she was “scared to drive by herself”. She was only able to follow the respondent’s “back end” on the road when they moved from Alberta to British Columbia, and he drove in front. On the long drives between White River and Bonnyville and Cold Lake and Vancouver, if their vehicles got separated, the applicant would wait for the respondent to find her at a gas station or on the side of the road.
117Currently, the applicant does not drive long distances and therefore asserts that she could not assist in the children’s visits. While she is prepared to drive to her family’s cottages in Capreol and Alban, the distances involved in those drives are much shorter than to Toronto. She also has health issues that make her uncomfortable driving, including anxiety and difficulties arising from her recent concussion. In her view, her opportunity to assist in facilitating the respondent’s parenting time is limited.
118Prior to 2016, the applicant also did not have a reliable vehicle for driving the children anywhere. Since then, the applicant has driven the children to the Sudbury airport and picked them up. She sees that as her sufficient contribution to the respondent’s parenting time, given her own difficulties in driving distances and her inability to secure anyone else’s help with any kind of regularity. The applicant asserts that she would pay for the extra costs and charges for rebooking missed or cancelled flights if she were getting proper child support and spousal support based on the respondent’s actual income. I do not believe that the applicant has any real concept of those costs, which would significantly eat into a month or more of child support.
119The applicant has gotten assistance from relatives to assist with the children’s travel, when they are available. She has only ever driven as a passenger to Toronto. She went as a passenger on several occasions to pick the children up in Toronto and drive them back to Sudbury. The drivers on those trips included the respondent’s sister Monica, the applicant’s niece Vanessa, the applicant’s sister, and her friend Mr. Lee.
120Currently, although the applicant has asked her friends and family, “no one wants to help out” the respondent by facilitating access. According to the applicant, this is because anyone who is willing to help must do so on the respondent’s terms and in accordance with when he chooses to book flights. He does not provide sufficient notice of the flights. Moreover, Mr. Lee works six days a week, so he is not generally available.
121As an example, the applicant’s niece Vanessa Giroux drove the children down to Toronto in the summer of 2021 but has refused to do so again. Vanessa testified and explained that she found the terms of her agreement with the respondent unworkable and unfair. She felt financially taken advantage of by the respondent, who balked at paying for a hotel for a night with the children in Toronto. While I can understand Vanessa’s feelings about things, on the evidence I have heard I attribute many of the difficulties to miscommunications with the parties’ lawyers. Nevertheless, I also agree that it was unreasonable of the respondent to expect Vanessa to drive the children to Toronto and to return in a single day.
122The applicant’s sister Ms. Parent testified that she has driven the applicant to Toronto to pick up her children. She did this during the pandemic when there was less airport traffic. However, she is not willing to transport the children to assist with the respondent’s parenting time. In her words, “I want my personal time”. She already feels “maxed out” helping her sister and cannot do any more. This is completely understandable and reasonable.
The respondent’s income
[123]
The respondent’s income
The respondent testified to three sources of income: his pay from Air Liquide; his military pension; and his pension for injuries received in the military, a payment of $400 per month. The last of these is not taxable and does not appear on the respondent’s line 150 in tax filings. The applicant insists that this amount should also be included as income for support purposes. However, I find that it would not be appropriate to include this amount in the respondent’s income as I understand it to be in the nature of compensation for his injuries, and it is not intended to serve as an income replacement: Manuge v. Canada, 2010 SCC 67; Wells v. Campbell, 2015 BCSC 3, at paras. 51-57.
124The respondent has not been readily forthcoming with the financial disclosure required in a family law case. Although he asserted that his financial records had been sent to counsel for the applicant on time and that she had lost the records, various court orders by different judges contained terms requiring the respondent to file overdue financial documents. The respondent’s notices of assessment indicate many years for which the respondent was late filing returns.
125Tax documents (Tab 17 of Exh. 16, and other exhibits) show that the respondent’s reported, assessed, or reassessed income was as follows:
2014 $68,248
2015 $172,496
2016 $164,298
2017 $169,674
2018 $168,320
2019 $180,829
2020 $189,503
2021 $184,486
2022 $184,697 (an agreed fact presented to the court in final submissions)
126The applicant argues that the Seaquester business in which the respondent and Ms. Dalton were both involved made the respondent significant unreported income and allowed him to “live the dream”. As I have already explained, I do not find that to be the case. This is another example from the applicant of hyperbolic argument being offered to enhance the applicant’s position. The respondent denied ever earning any money from the Seaquester business, which did indeed have an ad on Facebook with contact information for the respondent. Ms. Dalton testified to the same effect and I accept that, though Seaquester existed technically as an incorporated business, it did not make the respondent any income or foster a lavish lifestyle. Virtually the only asset of the business seems to have been a 1995 boat.
127The respondent explained that he was late filing his taxes in 2014, 2015 and 2016 because he expected to be hit with large tax arrears that he could not afford to pay, as a result of having cashed in RRSPs to carry the family debt and pay to visit his children after he lost his job and the applicant left him. According to the respondent, his employment income in 2013 was about $13,000; the rest of the total came from cashed-in RRSPs. And indeed, the assessment of the respondent’s 2013 taxes by the CRA in 2015 resulted in taxes owing of $32,500.41.
128Generally, funds from RRSPs will figure in a payor’s income: Guidelines, s. 16. However, in the circumstances of this case, the respondent had lost his job and his working income and was attempting to carry the parties’ marital debt and visit his children in Ontario by cashing in his RRSPs. I am of the view that the usual way of dealing with RRSP income would not be the fairest way to determine his income: Guidelines, s. 17; Fraser v. Fraser, 2013 ONCA 715, [2013] O.J. No. 5347 (C.A.), at paras. 94-98. I decline to attribute the respondent’s use of his RRSPs as income in these circumstances.
129I am therefore satisfied that the respondent was not capable of paying child or spousal support in 2013. He had liquidated his RRSPs for the purposes of carrying the couple’s joint debt and to see his children, who had been removed from him by the applicant’s unilateral decision to take them to Sudbury. The respondent’s other income that year and into the first half of 2014 was insufficient to pay support: cf. M.B. v. S.B.B., [2018] O.J. No. 6074 (Sup. Ct.), at paras. 240-243.
130Statements of income can be deceptive. The respondent’s high income did not always translate into available funds. The respondent’s 2012 income of $257,518 was virtually all earned before the termination of his employment in November 2012; that figure cannot be used to establish support. Although the respondent’s income in 2022 was almost $185,000, his net pay was only $43,708 as a result of the garnishment of his wages (Exh. 22). Some $55,900 went towards arrears owing to the applicant. Garnishment of the respondent’s wages from Air Liquide began for the pay period ending April 10, 2021. By the end of that year, the respondent had paid the applicant $37,705.62 in support and arrears (Exh. 23). And garnishment continued. Thus, for the pay period November 20, 2022 to December 3, 2022, the respondent netted $1,566.29, though his gross pay was $5,812.09.
131In the course of the respondent’s cross-examination, he discussed a bank account that had not been isolated and explained in earlier financial disclosure. Income from Air Liquide is automatically deposited into an account that the respondent holds at RBC. The respondent did not ever directly disclose in a financial statement the existence of this account, though various pay stubs that had been disclosed by the respondent should have made it plain to the applicant that there was such an account, about which further disclosure could have been requested. I am satisfied that the RBC account only receives monies from the respondent’s income and from his military pensions, and that his failure to account for it in his financial statements is harmless.
Support generally and extraordinary expenses
[132]
Support generally and extraordinary expenses
The applicant argues that the respondent owes arrears of child support amounting to $164,220 and arrears of spousal support of $236,583. These amounts would be over and above amounts already paid by the respondent pursuant to temporary orders of the court.
133As to child support, the applicant does not recall when the respondent started paying child support. The respondent recalls paying child support from January 2015. He spent much of the time before then without full-time employment, liquidating RRSPs to carry the matrimonial debt and pay to see his children. He gave the applicant sums of money and gift cards. He recalled putting $4,000 on their joint line of credit, and “the applicant took it off the next day.” He recalled other times when the applicant took $1,500; in all, “I don’t know how much she took.” I accept that the applicant took or received some money from the respondent shortly after their physical separation, but that there was not much.
134The payment of support can be tracked through court orders.
135By temporary order dated October 30, 2014, Justice Poupore set arrears of child support for the period from separation through October 30, 2014 at $11,426, and of spousal support at $5,980. He ordered that arrears were to be paid at the rate of $200 per month commencing November 1, 2014. Child support going forward was set at $743 per month for the two children, and spousal support at $598 per month, based on the respondent’s anticipated income of $50,000 per year, and the applicant being on social assistance. As a result of this order, there have been support payments effectively owing since mid 2013.
136In his temporary order of June 23, 2016, Justice Gordon raised the child support amount to $1,172 per month, based on an income attributed to the respondent of $80,000 per year ($118,000 less $38,000 for costs of parenting time). Spousal support was raised to the midrange level of $1,036 per month based on that amount of income for the respondent and on no income for the applicant. Those payments were to commence July 1, 2016.
137The applicant fairly complains that the respondent has not provided timely and accurate disclosure of his income, and the incomes used in prior orders demonstrate that. The respondent had a duty to make the applicant aware of his income but failed to do so. The incomes set out for the respondent in the orders of both Poupore J. and Gordon J. are far less than he was actually earning. Orders made by Justice Poupore on April 13, 2017 and Justice Cornell on June 7, 2018 required financial disclosure from the respondent that was overdue.
138Although the respondent had reasons not to reveal to Revenue Canada his income from cashing in RRSPs because he feared the tax consequences, that does not justify his failure to keep the applicant apprised of his income over several years and in defiance of court orders. The respondent claims that his lawyer had disclosed his income to applicant’s counsel, but the orders of Poupore J. of April 13, 2017 and of Cornell J., with costs ordered against the respondent each time, show that disclosure was late in coming and the respondent was penalized for it.
Extraordinary expenses and additional payments
[139]
Extraordinary expenses and additional payments
In addition to support issues, the applicant claims that the respondent caused difficulties with respect to s. 7 expenses. As an example, the applicant testified that their daughter Kaleigh got braces in 2019 with assistance from the respondent’s coverage at work and through his military pension. The applicant asked in 2021 for the same assistance for Zach. She provided a quote for braces for Zach, who also requires braces, but the respondent cancelled Zach’s appointment with the orthodontist, saying “Zach will not get braces.”
140The respondent has enrolled the applicant and the children for health care benefits with the Public Service Health Care Plan through his Canadian Armed Forces pension and has done so since January, 2014. The applicant has always been on that plan and used the plan for prescriptions and dental care. The cost to the respondent for this coverage has been $174 per month. Tab 27 of Exhibit 17 documents that this coverage saved the applicant more than $5,300 in medication for herself between 2016 and 2021. The respondent himself is covered through Air Liquide. Since he got that position after separation, he is unable to enroll the applicant on that plan.
141The respondent testified that the applicant was responsible for making her own claims under his PSHCP plan. For this reason, he did not think that he needed to submit a dental claim that the applicant had given him. The respondent stated that if money came to him that was for the applicant’s claim, he would provide her with the money.
142Concerning s. 7 expenses, the applicant testified that the respondent has paid half for some things, such as soccer. The applicant had the children in swimming in 2013, but does not remember if she asked the respondent to pay his half for that, but “if I did he probably paid half.” So far as the applicant could recall, the respondent never failed to pay for the children’s sports if she asked.
143I have been provided with no evidence of unpaid s. 7 expenses that would result in amounts owing to the applicant by the respondent, although it must be acknowledged that proportionality should be the rule but has not apparently been the practice here. The respondent is current with respect to his s. 7 expenses for the children.
144In his evidence, the respondent spoke generally about money gifts and contributions to his family, but not much about extraordinary expenses. He explained that he would buy the children school supplies and winter clothing when he was in Sudbury. He dropped off boxes of dry goods, meat, milk, and condiments to the applicant. “I would contribute what they needed.” This was in addition to child-support payments, and “I got no credit for these things.”
145Tab 25 of Exhibit 17 are e-mail communications between the applicant and the respondent in 2015, 2016 and 2017. There are texts in which the applicant asks the respondent to provide the children with school or winter clothing and school supplies and the respondent describes his plans to buy the requested items. In one text from April 2015 the applicant tells the respondent: “Thank you for the food.” In September 2016 the respondent offered to cover the cost of subs and pizza for the children at school.
146Between November 21, 2019 and December 28, 2022 the respondent provided a total of $3,165 to the applicant by way of e-transfers for the children (Exh. 19). Generally the transfers were $100 or less at a time, though several were larger. Where e-transfer receipts were provided they often explained that the money was for the children for a stated purpose (“money for Zachary’s soccer”, “for Kaleigh”, “money for kids start of school supplies”). In 2020, the respondent paid $820 for a cell phone for Kaleigh (Exh. 17, Tab 25).
147One large transfer appears to be one in the amount of $475 on May 22, 2021, “for Kaleigh”. The respondent explained that because of lag time in the Family Responsibility Office’s (“FRO”) collection, he provided that money to minimize any problems for the applicant in a shortfall of support between June and July 2021.
148Although he was slow to provide accurate and up-to-date evidence of his income and prepared to underpay child support, the respondent helped his children in various ways and attended to particular requests from the applicant.
Support orders and payments: records from the Family Responsibility Office
[149]
Support orders and payments: records from the Family Responsibility Office
Exhibit 24 is the balance sheet from the FRO. It shows that by March 1, 2015 the respondent was in arrears of support by $24,111. The same date shows the respondent’s first payment of $1,520, apparently representing both the ongoing support payment that was required ($1,341) and a payment towards arrears of $179. Those payments continued until January 2019, when adjustments were made back to July 2016 to take into account the new figures ordered by Justice Gordon.
150Based on arrears still outstanding, on the shortfall generated by this pattern of underpayment, and on various other adjustments, arrears of support grew to a high of $64,226 by June 2021. From that point to the present, the respondent paid down the arrears by multiple extra monthly payments, as a result of the garnishment of his income, until the arrears were sitting at $8,620.82 by January 1, 2023. More than $17,000 of this money was owed to Ontario Works by way of a subrogated claim against the respondent for amounts it had paid to the applicant in 2012 and 2013 which the respondent should have paid by way of support; this has all been repaid. A pay stub for the two-week pay period ending June 5, 2021 shows that $3,600 was garnisheed from the respondent’s gross earnings of $11,034 for “family maintenance”. A FRO letter explained that the respondent was being garnisheed at 50% for support arrears.
151The respondent described himself since the 2021 garnishment as “basically homeless”, and that he was very grateful to Dalton for giving him a place to live. At Air Liquide, he works shifts of seven days or nights on and 7 days or nights off. He sometimes cleared only $1,100 every two weeks after deductions during the period of garnishment. He cannot afford a residence in Edmonton or a car. I accept this effect of such a significant rate of repayment. It is important that the respondent pay his arrears of support, but his testimony about the garnishment further satisfies me that the respondent is not living a lavish lifestyle.
152By the time of concluding oral submissions in September 2023, the parties were in agreement that the respondent was current with respect to support payments required by orders of this court. Through the end of September 2023, the respondent will have paid the applicant $108,072 in spousal support, and, on behalf of the children, $128,250 in child support since the parties separated.
Child Support
[153]
Child Support
Child support is a right of the child, and parents have an obligation to provide financial support to their children: D.B.S. v. S.R.G., 2006 SCC 37, at paras. 37-38. The Federal Child Support Guidelines, SOR/97-175 (“Guidelines”) have set out objectives in relation to child support. The Guidelines aim to establish a fair standard of support for children; to make the calculation of child support more objective and the legal process for determining support more objective; and to ensure consistency: Colucci v. Colucci, 2021 SCC 24, at para. 33.
154The Supreme Court of Canada has noted that the proper construction of the objectives of the Guidelines “requires that the objectives of predictability, consistency and efficiency…be balanced with those of fairness, flexibility and recognition of the actual ‘condition[s], means, needs and other circumstances of the children’”: Contino v. Leonelli-Contino, 2005 SCC 63, at paras. 32-33; Francis v. Baker, 1999 CanLII 659, at para. 40. In other words, sometimes fairness requires different treatment of payor parents who earn the same income.
155A payor parent has a duty to pay child support commensurate with his or her income and the Guidelines, and support should automatically be paid and adjusted in accordance with changes in the payor’s income: D.B.S., at paras. 67-69. The system depends to a great extent on good faith and it is “blameworthy conduct” for a payor to fail to disclose material increases in income: D.B.S., at para. 124. Payor parents have a duty to make “full and honest disclosure”: Michel v. Graydon, 2020 SCC 24, at para. 33.
156For a child support system to operate based on such a philosophy, full, honest, and timely disclosure of the payor’s income is essential. The payor’s failure to provide income disclosure undermines the system, which cannot properly function without it. Such complete and current financial disclosure goes a long way towards ensuring that payor spouses are not met with staggering arrears of child support owing: Colucci, at paras. 48-54.
157The respondent asserts that he has paid child support in accordance with orders of this court. He asks that he not be required to pay retroactive child support going back more than three years. But that cannot be accommodated, even on the case on which the respondent particularly relies, D.B.S, which must be read in light of Colucci. Although I accept that the respondent has worked significant overtime hours to fund his parenting time with the children, he should have adjusted his child support to reflect his actual income and asked a court, apprised of all the facts, to come up with an appropriate adjusted figure. In allowing the orders of Justice Poupore in 2014 and Justice Gordon in 2016 to be based on and to continue on such understated amounts for his income, I find that the respondent has not fulfilled his duty to ensure that his children are appropriately supported. He has been underreporting since 2014 and has not satisfied his child support obligation: D.B.S., at para. 109.
158However, the respondent also argues that his excessive costs of exercising parenting time with the children must be taken into account and must have an effect on the quantum of child support payable. And indeed, the very high cost to the respondent of exercising parenting time with the children is one of the reasons for which, in my view, he will not have owed any support until July 2014. In 2013 the respondent liquidated RRSPs to pay matrimonial debt and to have funding to visit the children who had been transported four provinces away from their previous residence. Otherwise, his income was almost non-existent, and came from irregular part-time employment and a military pension.
159Nevertheless, by the second half of 2014, the respondent began to earn a significant amount of money. Justice Gordon in 2016 agreed with the respondent that the respondent’s costs of access had to be accounted for. That was creatively accomplished in the order of June 23, 2016, by deducting $38,000 per year from the respondent’s gross income (held to be $118,000) to represent the median yearly pre-tax costs to him of parenting time. I note that such a manner of proceeding had been earlier mooted as a possibility in Ben-Ami v. Ben-Ami, [2001] O.J. No. 5109 (Sup. Ct.), at para. 10.
160The applicant, in her submissions, expresses dismay that such an order should be made, “legitimizing expenses of $3166.00 a month!”. She submits that the Guidelines in s. 10 provide a mechanism for reducing child support, based on the “substantial hardship” of parenting time costs, and that the respondent does not qualify. She argues that the respondent has done nothing more than throw together random receipts and claim them as expenses for exercising parenting time with his children.
161The applicant continues in submissions: “Sadly, a lot of parents cannot see their children as regularly when they live in different provinces.” I begin by observing that the respondent’s frequent visits with his children have been encouraged by this court in several orders. The applicant’s dissatisfaction at the respondent being permitted to spend so much money to exercise parenting time unfortunately underscores the applicant’s entitled view of her position and ignores the respondent’s laudable efforts to spend time with his children. I note the following:
a. It was the applicant, without any notice or discussion with the respondent, who removed the children from their father and their community and province of residence, Comox, British Columbia, and took them to a place solely of her own choosing: Sudbury, Ontario;
b. The applicant offered it as her view at trial that the respondent brought inordinate expenses on himself to exercise parenting time by not simply following her to Sudbury, the place of her choosing, even though they were separated. She felt that he should therefore properly bear all costs of his parenting time;
c. Further, although the applicant offers justifications for her almost complete failure to assist in facilitating the travel required for the respondent or the children to exercise parenting time, she does not acknowledge the terrible burden that this leaves the respondent to shoulder in the best interests of the children. Rather, she complains about what she considers to be the respondent’s high-handed behaviour in exercising parenting time and in expecting her assistance for it;
d. In fact, the applicant calls out the respondent’s choice to spend money on such extravagances for the children as Canada’s Wonderland or trips out of province or country and chooses to ignore that the respondent maintains almost no connections to Sudbury and does not enjoy being compelled to spend time there.
162Section 10 of the Guidelines addresses circumstances that may cause “undue hardship.” Section 10(2)(b) of the Guidelines provides that there can be undue hardship if a payor spouse has “unusually high expenses in relation to exercising parenting time with a child.” In his submissions, the respondent has offered for consideration many cases in which extreme costs of access figure in decisions that child support should be adjusted downwards because of such costs. Unfortunately, virtually the entire focus of the respondent is on the undue hardship caused by the costs of parenting time, and the second part of the undue hardship equation – that involving the “standard of living test” in s. 10(3) of the Guidelines – he ignores.
163I agree with the applicant that the respondent cannot succeed on the standard of living test. The respondent has not even addressed the detailed equations and elements of this test that are comprehensively set out in Schedule II of the Guidelines, involving a comparison of household standards of living. The reason for his being unable to succeed is not hard to find. I did not make a finding that would have consolidated Mr. Lee into the applicant’s household. Without such a finding there is simply no way that the high income of the respondent since 2015, whether alone or in combination with that of Ms. Dalton, would result in a s. 10 benefit to the respondent, even if some income is attributed to the applicant. The respondent must fail on this second part of the undue hardship test, even though I find that his parenting time costs represent an enormous expense: Matthews v. Matthews, 2001 CanLII 28118 (ON SC), [2001] O.J. No. 876, (S.C.J.) at paras. 11 and 12, 19 and 20.
164In my view, however, there is another appropriate way of addressing the issue of the respondent’s extraordinary parenting costs in the circumstances of this case. Section 4 of the Guidelines offers flexibility distinct from s. 10: D.B.S., at para. 129.
165Section 4 of the Guidelines addresses situations with respect to income earners whose income exceeds $150,000 per year. A court may, of course, order Table support and an amount for special and extraordinary expenses; this is the usual and presumed to be the proper calculation: Francis v. Baker, at para. 42. However, if that would be “inappropriate”, or “unsuitable”, on clear and compelling evidence (Francis v. Baker, paras. 40-43), then a different model can be used. Under this second model, Table support can be ordered for the first $150,000 of income. A court would then have a discretion to determine an appropriate amount based on the payor’s income over $150,000, having regard to the condition, means, needs and other circumstances of the children; the financial ability of each parent to contribute to the children’s support; and the determination of an amount for special or extraordinary expenses.
166The applicant opposes resort to s. 4 and argues that it should be viewed similarly to s. 10 of the Guidelines, and not be permitted to give relief to the respondent for his high costs of parenting time when s. 10 already provides a potential remedy whose preconditions the respondent can not meet. In my view, this argument ignores the court’s duty to achieve a just result through a flexible interpretation of the legislation.
167In my view, the Guideline amounts for the respondent’s full incomes for those years in which his income is above $150,000 would be inappropriate. I find it appropriate that the respondent instead pay child support and s. 7 expenses calculated on the first $150,000 of his income, and that anything above that amount, up to a certain level, be recognized as earned for the purposes of assisting to pay for parenting time. In so finding, I consider the following:
a. I accept the respondent’s evidence that his high income is generated from significant hours of overtime that he undertakes mainly to assist in paying the high costs of having parenting time with his children;
b. I find as a fact that the respondent’s costs of parenting his children range and have generally ranged between $30,000 and $36,000 of pre-tax dollars per year, based on his evidence and common sense, as I have discussed above;
c. There is no evidence before me that the children’s ordinary needs will not be met by capping the respondent’s income at $150,000 per year for the purpose of calculating Guideline support. In fact, such a cap generally will represent a smaller deduction from the respondent’s income than that assessed by Gordon J.’s order of June 23, 2016;
d. I find that while the children have lived with their mother in subsidized housing, I have no reason to think that that housing is substandard, or that the children are in want. While they have not lived in luxury, the children are not living in poverty. Since 2015 some child support has been received on their behalf from the respondent;
e. I find that, because of the respondent’s personal and financial sacrifices that he has undertaken to ensure that he can exercise parenting time and be present for and with his children, the children’s best interests are better met than they would be by larger money payments based on the respondent’s full income, but with less parenting time;
f. The children are older and Kaleigh will be in post-secondary education;
g. The children’s needs are also being met by the applicant’s extended family in Sudbury and by the generosity of the applicant’s friend Mr. Lee. In noting this, I do recognize that there is no obligation for any support or assistance from these sources, but the unfortunate longevity of this case in the system at least allows for the recognition that history has proven that such support and assistance exist and are unwavering;
h. Section 7 of the Guidelines remains available to assess extraordinary expenses at a generous rate through proportional contribution from the parties; and
i. The applicant has the means to contribute to the support of the children by actually seeking employment, though I recognize that such employment may be at minimum wage and limited to some extent by the applicant’s current health issues. The applicant would thus herself be able to contribute more to the children’s support.
168However, going forward, if the respondent’s income exceeds $190,000 in any given year, any amount of his line 150 income above $190,000 shall be added to the $150,000 base in that year in order to calculate child support and s. 7 expenses. My s. 4 Guidelines order is intended to recognize that the respondent goes “above and beyond” to have parenting time with the children, not to encourage him to make even more money that will not be used to calculate child support or pay for parenting time.
Spousal Support
Entitlement to spousal support
[169]
Spousal Support
I find that the applicant has established entitlement to spousal support both on a compensatory and non-compensatory basis.
170Section 15.2 of the Divorce Act (“DA”) offers guidance on spousal support awards. In making a spousal support order I must take into consideration the “condition, means, need and other circumstances of each spouse, including the length of time the spouses cohabited, the functions performed by each during cohabitation, and any order made to support either spouse” (DA, s. 15.2(4)).
171A compensatory award recognizes the economic disadvantages suffered by the applicant from the marital breakdown and the advantages flowing to the respondent from the marriage (DA, s. 15.2(6)(a)). Spouses are entitled to be reimbursed for their contributions to the marriage and for losses sustained as a consequence of the marriage: Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.J. No. 14, at para. 18.
172A spousal support order should also apportion the financial consequences arising from the care of children of the marriage, relieve economic hardship arising from the marriage breakdown, and promote the economic self-sufficiency of each spouse within a reasonable period of time (DA, s. 15.2(b)-(d)). Reliance on government assistance can establish need: MacKinnon v. MacKinnon, 2005 CanLII 13191 (ON CA), [2005] O.J. No. 1552 (C.A.), at para. 24. Failure to achieve self-sufficiency is a factor to take into account in determining entitlement and the appropriate level of support: Leskun v. Leskun, 2006 SCC 25, at paras. 25-28. However, making little effort towards achieving self-sufficiency can justify a court in emphasizing the duty to achieve self-sufficiency or in finding that no spousal support award can achieve the objectives enumerated in the DA: Walsh v. Walsh, 2006 CanLII 20857 (ON SC), [2006] O.J. No. 2480 (C.A.), at para. 42; MacEachern v. MacEachern, 2020 ONSC 31.
173Entitlement to spousal support generally commences from the date that notice that a support claim is being pursued has been given: D.B.S., para. 118; MacKinnon v. MacKinnon, 2005 CanLII 13191 (ON CA), [2005] O.J. No. 1552 (C.A.), at para. 22-24. However, the wage earner’s inability to pay due to their taking on the burden of carrying matrimonial debt can delay the commencement of spousal support to the point at which the payor is relieved of the burden of debt: Venton v. Venton, 2015 ONSC 4705, at paras. 63-66.
174With respect to entitlement to compensatory support, I note the following. Throughout their marriage, the applicant followed the respondent to Alberta, Ontario, and to British Columbia, to locations which allowed the respondent to advance his career. Although the applicant worked at times during the marriage, her career was secondary to the respondent’s power engineering career, and she mostly gave up working once the children were born. It is apparent to me that at that point, at least for a time, the applicant remained in the home to take care of and raise the children.
175Accordingly, when the couple’s marriage ended, the applicant had no career to fall back on. She also had two young children to take care of as a single parent. The applicant’s choice to relocate to Sudbury created difficulties for her and assisted her at the same time. Had the applicant remained in British Columbia near the respondent, the respondent could have taken a more active share in parenting the children, which would have given the applicant more opportunity to develop skills and to work. Instead, the applicant chose to return to Sudbury, which gave her access to ready assistance from family members, who did not hesitate to extend themselves to assist her. Her resort to social assistance in Sudbury is a reasonable indicator of her need at that point in time.
Commencement of spousal support
[176]
Commencement of spousal support
When should the spousal support commence? I find that the respondent was not reasonably able to start paying spousal support at the time that the applicant left him. He had just lost his employment and nevertheless had been left by the applicant with the matrimonial debt. He (perhaps improvidently) attempted to finance the debt by liquidating his RRSPs and was able to keep things afloat for some months before he lost everything, including the Comox house, by the fall of 2014. However, the respondent started stable employment with Air Liquide by July 2014 and quickly showed a reasonable income. I find that the respondent was not able to pay support from separation until July 2014.
On what payor income should spousal support be based?
[177]
On what payor income should spousal support be based?
Increases to the payor spouse’s income do not automatically entitle the recipient spouse to spousal support at the higher level. Rather, the trial court maintains a wide discretion, and should take into account the circumstances of the parties, including such things as: the basis for the recipient spouse’s entitlement to support; career sacrifices actually made by the recipient spouse during the marriage; career changes or other events intervening in or affecting the payor spouse’s career trajectory post-separation; and the recipient spouse’s failure to take steps towards self-sufficiency: Thompson v. Thompson, 2013 ONSC 5500, at para. 103; Walsh v. Walsh 2006 CanLII 20857 (ON SC), [2006] O.J. No. 2480 (Sup. Ct.), at para. 44; Hariram v. Hariram, 2001 CanLII 32749 (ON SCDC), [2001] O.J. No. 700 (Div. Ct.), at para. 17; Sawchuk v. Sawchuk, [2010] A.J. No. 28 (Q.B.), at paras. 29-51.
178The applicant submits that spousal support should be based on at least the respondent’s entire line 150 income and that the respondent was able to pursue a career in power engineering because of her sacrifices and contributions. The respondent submits that spousal support should be paid based on the respondent’s base salary of $84,000, the base salary at the time he began working at Air Liquide. That base salary has now increased to $118,000, but the respondent submits that the applicant should not receive support based on that amount, as the respondent achieved it on his own. Moreover, spousal support should also not be based on the income from overtime hours, as the respondent undertook them to fund his parenting time with his children.
179In sum, the respondent submits that the applicant should not be entitled to base income for spousal support on an income achieved by the respondent’s own efforts or undertaken to permit him parenting time with his children, since the applicant was responsible for making the cost of parenting so exorbitant. While I do consider this an important factor, I also consider that the applicant’s sacrifices during the marriage permitted the respondent to advance in his field, and thus to secure the Air Liquide job at which he has the opportunity to earn a significant overtime income, even though he only acquired the position after the parties separated. Further advancement at Air Liquide, however, I find is due to the respondent’s efforts alone.
180Other relevant factors include that the respondent was only able to return to employment in his field after nearly two years of forced unemployment after he lost his previous job. During this time the respondent essentially lost all his savings and attempted (albeit unsuccessfully) to carry the couple’s marital debt. During the same period, the applicant made little more than token efforts to become self-sufficient and has chosen to remain unemployed.
181Taking the various factors into account, I conclude that spousal support shall be based on an income for the respondent of $68,248 in 2014 and $130,000 from 2015 onwards.
Imputation of income to the applicant
[182]
Imputation of income to the applicant
Income can be attributed to a recipient spouse, since one objective of spousal support is to promote the economic self-sufficiency of each spouse within a reasonable time, in so far as practicable. A spouse has a duty to make reasonable efforts to contribute to their own support: Juvatopolos v. Juvatopolos, 2005 CanLII 35677 (Ont. C.A.), at para. 10. Thus, attribution of income applies as readily in the spousal support context as in the child support context: Rilli v. Rilli, 2006 CanLII 34451 (ON SC), [2006] O.J. No. 4142 (Sup. Ct.), at paras. 14-15; Kinsella v. Theophile, [2018] O.J. No. 4705 (Sup. Ct.), at para. 48. The attribution of an appropriate income to the recipient spouse allows for a more precise calculation of the quantum of spousal support.
183Section 6 of the Spousal Support Advisory Guidelines (the “SSAG”) defines as a starting point for determining income the definition of “income” in the Guidelines. Section 19(1)(a) of the Guidelines provides a useful framework for determining whether and how much income should be attributed to a party for the purpose of determining support. In Drygala v. Pauli 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731, at para. 23, the Ontario Court of Appeal set out a three-part test for determining the issue of intentional underemployment, which, though generally invoked for payor spouses, is readily adaptable to recipients of spousal support.
184The test for attribution of income from Drygala is usefully reviewed in Kinsella, at paras. 50-54. The first part of the test asks whether a party is intentionally unemployed or underemployed, that is, earning less than the party is capable of earning. The second part looks to determine whether that unemployment is caused by reasonable health or educational needs or the needs of a child of the marriage. In the last part of the test income can be attributed having regard to the capacity to earn an income, in light of the party’s employment history, age, education, skills, health, available employment opportunities and the standard of living in the parties’ relationship.
185Speculation is not permitted for the attribution of income. The determination must be evidence-based: Drygala, at para. 44. When no other data is available, the Ontario Court of Appeal has ruled that a “rational approach” for imputing income would involve attribution of minimum wage at a full-time position to a party who is otherwise able to work: Pustai v. Pustai, 2018 ONCA 785, at paras. 46-50.
186Here, the parties’ children were six and three years old when they separated towards the end of 2012. The applicant relocated with them to Ontario. I find that by September 2013 both children should have been enrolled in school in Ontario and, granting additional time to ensure care for the children and to secure a job, that no later than January 2015 the applicant should have been employed. I find that the applicant has been capable of employment since January 2015 and that the applicant has been intentionally unemployed since that time.
187Once the children were both in school, I see no reasonable impediment to the applicant working to become self-sufficient, and the applicant should have joined the workforce. While childcare outside of school could be a factor, the applicant’s strong family support was her primary reason to locate back to Sudbury, and must be factored in.
188According to the applicant, psychological trauma that she experienced in the marriage and physical injury and health issues after separation prevented her from working. I have the applicant’s evidence about these issues, with some confirmation by her sister and her boyfriend Mr. Lee. However, I have no independent evidence from a psychological or medical professional that any psychological or health issues that the applicant claims rendered her incapable of working. Rather, what I have is the applicant’s statement to Dr. Baldisera at the time of her discharge from the concussion clinic that she can do what she needs to do if she paces herself. For her part, Dr. Baldisera did not opine that the applicant was unable to work. In the circumstances of this case, without independent evidence of the applicant’s inability to work I do not find the applicant to be unable to work or to have been unable to work for health reasons: Rea v. Rea, 2013 ONSC 7548, at paras. 16-19; Walsh v. Walsh, at para. 44.
189To the contrary, the applicant appears to have been capable of applying herself to education and volunteer work. I have evidence of the applicant engaging in training for work as an actor, and of her extensive participation in volunteer organizations and on boards. She was supported with public assistance on her arrival in Sudbury, and apparently used the opportunity offered by that subsidy to take on classes and volunteer work to improve her credentials.
190The respondent submits that an income of $50,000 should be imputed to the applicant. However, I agree with the applicant that there is no basis in the trial evidence to support such an amount. While it is lamentable that the applicant has chosen to make no use of the education, skills and experience that she has acquired, there is simply nothing to show that she would be capable of working in a position that would pay such a wage.
191In those circumstances, for the purpose of calculating support, I find it fair, reasonable and necessary to attribute to the applicant an income for work at a minimum wage job from January 2015 on. I put her potential full-time income at that point in time at $22,000. Over time, minimum wage has increased, but the applicant has suffered health issues that require her to “pace herself”, so she cannot be attributed full-time employment.
192In balancing these factors, it is my view that it is appropriate to attribute to the applicant an average income of $22,000 per year from 2015 onwards for the purpose of calculating appropriate past spousal support.
Duration of spousal support
[193]
Duration of spousal support
The applicant submits that the respondent should continue to pay spousal support for so long as possible. The respondent submits that spousal support should terminate immediately and should have been terminated a long time ago.
194The parties have both filed calculations prepared on DivorceMate, whose assessments are regularly used by courts and align with SSAG principles. While none of these filings has been based on the figures that I have determined above, they helpfully indicate that the duration of spousal support should be between about 5.5 years and 15 years.
195In determining the duration of spousal support, I take into account the following factors, in the context of all of the evidence in the case:
a. The couple was married for about 11 years;
b. When they separated in 2012, the applicant was a young woman of 37 years;
c. The applicant had qualifications in social services prior to marriage, and had worked in that field and done some teaching during the marriage;
d. The applicant did re-training and skills upgrading after the marriage. She has taken numerous courses and training that should have allowed her to ease back into the workforce. Her extensive volunteer work and board work shows that the applicant was quickly capable of employment upon her return to Sudbury;
e. The young age of the children of the marriage on separation could well have slowed down the applicant’s ability to re-enter the workforce and advance within it, at least until both children were in school;
f. In her evidence, the applicant has denied that she was seeking spousal support as a result of her various physical injuries sustained after the termination of the marriage. This is appropriate, as it is not the function of an order for spousal support to convert the payor spouse into the recipient spouse’s de facto insurer for health or financial problems that do not arise as a result of the breakdown of the marriage;
g. There is no evidence of the applicant taking any practical sustained reasonable steps in the workplace to achieve self-sufficiency. Some short stints as a model or on film have not led to even minimum wage part-time employment;
h. As noted by the applicant’s sister, the children are now old enough to themselves offer the applicant more significant assistance in taking care of things that the household requires.
196In my view the appropriate duration for spousal support in considering all of the circumstances of this case is for the period from July 1, 2014 until December 31, 2022.
Quantum
[197]
Quantum
The applicant has proposed that I set any award of spousal support at the high SSAG range, because of the respondent’s “conduct” resulting in the applicant having to wait a long time to get the “proper spousal support amount”, and because she will not get it indefinitely. I decline to do so. The applicant has offered no jurisprudence to support these considerations as appropriate for determining the quantum of spousal support.
198In my view, the predominant factors in determining the quantum of spousal support relate to the high cost to the respondent of parenting time and the benefits foreseen or experienced by the applicant from moving to Sudbury with the children. Factors such as access costs caused by the custodial parent and the availability of assistance from family to the recipient spouse, among other things, can result in spousal support at the low SSAG range: Gibson v. Gibson, [2009] O.J. No. 4172 (Sup. Ct.), at para. 15; Novlesky v. Novlesky, 2009 BCSC 1328, at paras. 124-125. The need to emphasize a spouse’s duty to contribute to their own support can also lead to an award of support in the low range: Reisman v. Reisman, 2014 ONCA 109.
199In the circumstances of this case, I find that it is appropriate to set the quantum of spousal support at the low range of the Spousal Support Advisory Guidelines, based on the “with children” amount. In so ordering, I take the following particularly into account:
a. The applicant chose unilaterally, without consultation or notice, to remove the children from their father’s care and move with them across the country far from the respondent. This choice by the applicant has had significant and ongoing negative financial and other impacts on the respondent’s ability to have parenting time with his children;
b. The applicant offers and has offered almost no assistance to the respondent in exercising parenting time with the children. Instead, the applicant has relied on the respondent and Ms. Dalton to take care of these aspects of exercising parenting time, though Ms. Dalton has no legal duty at all in this regard;
c. The applicant left the respondent to carry the matrimonial debt by himself;
d. The respondent has repaid Ontario Works on its subrogated claim, which subsidized the applicant when she first relocated to Sudbury, and during a portion of this time I have found that the respondent was incapable of paying support;
e. The respondent’s siblings and extended family have assisted the applicant financially and with other kinds of support after her relocation to Sudbury from British Columbia;
f. While I have been unable to find that the applicant and Mr. Lee were in a spousal relationship, the evidence that I have received satisfies me that Mr. Lee has made significant regular financial or other valuable contributions to the applicant since 2016 or 2017;
g. The applicant had a duty to take reasonable steps to work towards self-sufficiency but did not do so. Had this case concluded earlier, spousal support might well have terminated earlier, which could have assisted the applicant to recognize her duty to work towards self-sufficiency.
Retroactive support owing
[200]
Retroactive support owing
To summarize, for support purposes, with respect to child support and spousal support, I am fixing the respondent’s income as follows. His income for child support is set out in italics, and for spousal support in brackets:
a. 2014: $ 68,248 ($68,248)
b. 2015-22: $150,000 ($130,000)
c. 2023: $150,000
201From January 1, 2015 onwards, I attribute an income of $22,000 to the applicant.
202Based on my findings, support was owing from July 2014, or for six months that year. No spousal support was owing for 2023. The tables in the Guidelines have been updated from time to time since the parties separated, and calculations of support are based on the amounts owing at the particular time. In 2017 a change was instituted in November. DivorceMate offers the following figures as “with child support” numbers at low range SSAGs:
Year Child Support (per month) Spousal Support (per month)
2014 $1,035 $840
2015 $2,146 $1,420
2016 $2,104 $1,073
2017 $2,104 $1,075 (SSAGs Jan 1-Nov 21)
2017 $2,159 $1,046 (SSAGs: Nov 22-Dec 31)
2018 $2,159 $1,027
2019 $2,159 $942
2020 $2,159 $875
2021 $2,159 $754
2022 $2,159 $702
2023 $2,159 $0
203The total amounts owing for 2014 through to September 2023 are as follows:
Year Child Support (per year) Spousal Support (per year)
2014 $6,210 $5,040
2015 $25,752 $17,040
2016 $25,248 $12,876
2017 $23,114 $11,825 (SSAGs Jan 1-Nov 21)
2017 $2,159 $1,046 (SSAGs: Nov 22-Dec 31)
2018 $25,908 $12,324
2019 $25,908 $11,304
2020 $25,908 $10,500
2021 $25,908 $9,048
2022 $25,908 $8,424
2023 $19,431 $0
204In total, the respondent owed $231,454 by way of child support, and $99,427 as spousal support. He has paid $128,250 as child support and $108,072 as spousal support. Accordingly, I find that the respondent now owes a total of $103,204 retroactive child support. Conversely, the respondent has overpaid spousal support by $8,645, and the applicant must repay that amount to him. As child support is a right belonging to the children, I will not set off the spousal support debt owed by the applicant to the respondent against the money owing to the applicant by the respondent on behalf of the children for child support: M.B. v. S.B.B., at para. 358.
Conclusion
[205]
Conclusion
For the above reasons, in all the circumstances of this case, I make the following orders:
a. Retroactive child support owing by the respondent to the applicant on account of the children Kaleigh Natalie McChesney, born May 31, 2009, and Zachary Laurier McChesney, born May 31, 2009, will be set at $103,204 as of September 30, 2023;
b. Retroactive child support is to be paid by the respondent to the applicant at the rate of no less than $800 per month, payable on the first day of every month commencing October 1, 2023, until the retroactive amount owing is paid in full;
c. Going forward, child support will be payable by the respondent to the applicant on account of the children Kaleigh Natalie McChesney, born May 31, 2009, and Zachary Laurier McChesney, born May 31, 2009, based on the respondent’s income and the federal Child Support Guidelines. Currently, that amount is $2,159 per month. In years in which the respondent’s income exceeds $150,000, support will be paid only on $150,000, unless the respondent’s income exceeds $190,000. In that circumstance, any amounts by which the respondent’s income exceeds $190,000 will be added to the base $150,000 amount, and the respondent will pay child support based on that amount;
d. A material change in circumstance with respect to this order will include, among other things, any significant reduction in the parenting time costs borne by the respondent and a change in primary residence of one or both children of the marriage;
e. Arrears of section 7 expenses owing are set at $0;
f. Section 7 expenses going forward with respect to the children Kaleigh Natalie McChesney, born May 31, 2009, and Zachary Laurier McChesney, born May 31, 2009, will be paid proportionately by the parties, based on the respondent’s income as calculated for child support purposes and either an income attributed to the applicant of $22,000 or her actual income, whichever is higher;
g. Spousal support payable by the respondent to the applicant is terminated as of December 31, 2022;
h. The respondent has overpaid spousal support to the applicant by $8,645. The applicant shall pay this amount back to the respondent at a rate to be worked out between the parties. In any event, this amount shall constitute a judgment debt owed to the respondent by the applicant and may be enforced as such;
i. The respondent shall maintain benefits coverage for the children of the marriage so long as they remain eligible dependents under his benefits plan. The respondent will forthwith reimburse the applicant for eligible expenses for the children that are reimbursed directly to him from the plan and shall forthwith disclose to the applicant the amounts paid by the plan with proof of payment. Where possible, the respondent will direct his plan providers to give the applicant information about what benefits the children are entitled to and how to access them;
j. The current and outstanding child support obligations in this order shall be a first charge against the estate of the respondent;
k. The respondent shall name the children as beneficiaries on his life insurance available through his employment, so long as they are eligible dependents or current or retroactive support is owed to the applicant for the support of the children, and he shall direct that information about the life insurance policy and a copy of the policy be provided to the applicant, so long as the children are eligible dependents.
206If either party believes there is an inputting error in the software calculations or there is a mathematical error in this decision, they may serve and file a Form 14B motion setting out the errors within 14 days of this decision. The other party will then have 21 days from the date of this decision to serve and file a written response. There will be no oral hearing of the motion, so the parties will govern their filings accordingly. Materials filed beyond these deadlines will not be considered.
207I was advised by both parties in final submissions that the situation involving Kaleigh has changed given that she is now attending post-secondary school in Alberta and has relocated to live with the respondent during the school year. These facts were admitted in final submissions, but the applicant does not agree that I can use these post-evidence admissions in determining child support going forward. I do grant leave for the respondent to move for a change in child support even before the passage of six months from this order.
208If the parties are unable to agree on costs, they may file written submissions of no more than five double-spaced pages with the court within 30 days.
A.D. KURKE J.
Released: September 27, 2023