K.W., Applicant - v. -, 2022 NBKB 236

FDSJ-243-2019 2022 NBKB 236 IN THE COURT OF KINGS’S BENCH OF NEW BRUNSWICK FAMILY DIVISION JUDICIAL DISTRICT OF SAINT JOHN BETWEEN: K.W., Applicant - and - G.W., Respondent DECISION BEFORE: Madam Justice M. Deborah Hackett AT: Saint John, N.B. HEARD: October 19, 20 and 21, 2022 DECISION: December 2, 2022 APPEARANCES: Applicant –per se Kimberly A. McCurdy, for the Respondent NATURE: Parenting Order, child support, division of marital assets and debts Hackett, J. INTRODUCTION [ 1 ] In this matter the father filed an application for divorce in May 2019.

The primary issue for the Court is what parenting order is in the best interests of the parties’ three children, B.D.W., born in 2013, G.E.W., born in 2014, and A.M.W., born in 2017. The children will be referred to in this decision as “B.”, “G.”, and “A.” respectively. [ 2 ] As well, the mother seeks an order for child support payable by the father based on an imputed income, sharing of special expenses, as well as arrears of support. Both parties seek division of marital property. BACKGROUND FACTS [ 3 ] The father is 37 years old.

He has a Bachelor of Computer Science from the University of New Brunswick, received in approximately 2008. [ 4 ] The mother is 36 years old. She graduated from Holland College in 2008 or 2009 with a diploma in culinary arts/pastry arts. [ 5 ] The parties were in a relationship when they completed their respective post-secondary programs. The mother found a job in

Toronto in the food industry and the father moved to Toronto a few weeks later. [ 6 ] The father found employment with a company that manufactures plastic cards used for gift cards and credit cards, where he worked for eight years. The father testified he got a contract with the company as a junior IT programmer but said it was not a typical software development job. He testified he started several projects and authored several pieces of software still used by the company, but a lot of it was done on his own time. [ 7 ] The parties moved back to New Brunswick to the Saint John area in September 2017.

The mother was pregnant with their youngest child, A., at the time. The parties rented a home where they lived from December 2017 until April 2019. [ 8 ] The mother returned to work in late August 2018 as a cook and a baker at a restaurant. B. went to elementary school and G. was at daycare. A. was home with the father, who took paternity leave. Events Leading to Separation [ 9 ] The mother testified that long before the parties moved to Saint John, the father would have intense depressive times and this would transition into a manic portion.

She said when the father was depressed he would be uninterested in exercise or anything, including the children or hobbies, and he would sleep. When he was manic, it was the opposite; he would be coming up with ideas for unattainable businesses. [ 10 ] The mother also testified the father used marijuana more than once a day. She said with his increasing use of marijuana he would be paranoid. She testified he was preoccupied with the idea she was having an affair for about a year and he said someone else was G.’s father.

She said this went on for a year until she told him to get a paternity test and he dropped the issue. [ 11 ] The mother testified the father’s internet use was almost constant. She said he could not put the phone down to make the children’s school lunches. He was saying that there were hidden messages aimed at him in children’s shows. The father would say that people were talking about him on YouTube news programs. [ 12 ] The mother said the father was increasingly talking about Elon Musk, Donald Trump and Jordan Peterson.

The mother said she would look at the conversations the father was supposed to be having with these “celebrities” online and she would not see it. He would buy expensive things such as a truck and trailer, and she felt bullied into following his decisions. [ 13 ] The mother testified that on Good Friday in April 2019 (April 19, 2019), the father’s behaviours had become bizarre and he was experiencing periods of disorientation and confusion. She suggested they go to see the in-house psychiatrist at the Regional Hospital and he agreed to go.

The father’s mother babysat the children. [ 14 ] The mother testified that as they were driving to the hospital the father became concerned and uneasy about how people who were secretly messaging him would receive his ideas. When they got to the hospital the father refused to stay until the psychiatrist could see him. [ 15 ] The father’s affidavit evidence indicates that he believed he and the mother were going to the hospital for couples counselling.

In his May 2019 affidavit he deposes he and the mother agreed to talk to a spiritual guide or counsellor at the hospital. [ 16 ] He deposes at paragraph 31 of his December 2019 affidavit that when they arrived at emergency to be admitted they both told Deborah MacNutt (the registered nurse who admitted the father) they were there for marriage counselling. He says Ms.

McNutt then told them that marriage counselling was not a valid reason to be admitted, and he was admitted for depression instead. [ 17 ] On cross-examination the father agreed he told the nurse who did the intake at the hospital on April 19, 2019 he was a daily user of cannabis. He also agreed he refused to do a urine test. When asked why he refused the urine test, he said he was taken to the hospital under false pretenses and was told he would be speaking to an individual named Pam who is supposed to help people spiritually.

He said, to him, that meant she was open and able to mediate, and he could talk about how his beliefs had changed, which was important to him at the time. [ 18 ] When asked who Pam was, the father said she works in pediatrics with people who just had children. [ 19 ] The parties agree they separated on April 28, 2019. They had signed an agreement of purchase and sale for a new home. After the father said he wanted to separate, he no longer agreed to sign the agreement of purchase and sale. The mother renegotiated it and bought the home with her parents.

She moved into this home. [ 20 ] The father stayed in the parties’ camper/trailer at some point. He has kept the trailer. [ 21 ] The father filed an application for divorce May 21, 2019. In it he requested joint custody of the children with primary care with him and generous and liberal access to the mother. He also requested an “equal and equitable” division of marital assets and debt. [ 22 ] The mother filed her answer on June 26, 2019 requesting custody of the children, an order for reasonable supervised access to the children by the father, and child support and sharing of special expenses for the children.

As well, she requested an order under

section 128 of the Family Services Act that the father be restrained from molesting, annoying, harassing or interfering with her, and she requested an order for a psychological assessment of the father. She also sought an equal division of marital property, along with an interim order under

section 11 of the Marital Property Act restraining the father from disposing of or impoverishing any property to be divided. [ 23 ] The father did not have parenting time with the children after separation until after he filed his application on May 21, 2019. It appears he then had some parenting time, supervised by his mother. [ 24 ] The mother deposes in her affidavit filed June 26, 2019 that after separation she was concerned the father’s behaviour would not

be properly monitored and that his illness appeared to be worsening. She notified the school she was concerned about the father simply showing up at the school, and asked that she be notified if he did. [ 25 ] The parties’ first court appearance was July 4, 2019. An interim order was made granting the mother primary and day to day care of the children, who were to reside with her at her residence, and granting an order for supervised access on the part of the children with the father every second weekend from Saturday at 9:00 a.m. until Sunday at 6:00 p.m., and every Wednesday from noon until 6:00 p.m.

The father was also to have regular evening telephone access with the children. The supervision of the father’s in-person access was to be undertaken by the father’s mother. [ 26 ] The interim order also reflected the parties' agreement that the father would undergo either a psychological or psychiatric assessment and provide a copy of the assessment to counsel for the mother. [ 27 ] The father filed an affidavit with the court on December 17, 2019. He attached to the affidavit a report of Dr. Jane Walsh, who carried out a psychological assessment of the father on October 11, 2019.

Her report is dated December 3, 2019. [ 28 ] I note the father submitted the invoice from Dr. Walsh at the Saint John Psychology Centre showing that the assessment cost of $3,542 was paid by credit card on December 5, 2019. It was marked as exhibit AR–1. If the father tendered this invoice on the expectation the Court would order the mother to pay half the cost, no such submission was made by the father.

I note the July 2019 Interim Order did not reflect any sharing of the cost of the psychological assessment. [ 29 ] At paragraph seven of his affidavit filed December 17, 2019, the father states he believes the assessment confirms he does not have any psychological issue or illness which renders him dangerous around the children and that it is not necessary for his parenting time to be supervised. [ 30 ] In her report Dr. Walsh indicates the father told her he was living with his mother and stepfather and he was not working. He acknowledged to Dr.

Walsh his internet use became problematic during the marriage and there was some truth to the mother’s allegations he had become delusional with respect to his beliefs about various online interactions.

Specifically, he said that part of him wanted to believe famous people were tweeting him directly on Twitter although he realized that this was likely not true. [ 31 ] When asked about this on cross-examination, the father testified that the amount he was invested in social media and Twitter became a problem because he started following people such as Elon Musk and Donald Trump, and he was interested in seeing their tweets. When asked if he believed at times these celebrities were tweeting directly at him, he said he did not feel they were tweeting directly at him.

He said if that was the case, there is a way to send messages directly. When asked if he was sending messages to these individuals directly, he said he may have sent one or two. [ 32 ] The father also told Dr. Walsh he began using cannabis regularly to manage his work-related stress while living in Toronto. He said he used it to try to improve his mood when he got home from work so he did not take the stress out on his family, and he also believed it helped his creativity. He estimated he was smoking one to two joints per day after moving to Saint John.

He said that he and the mother initially used cannabis together recreationally but his use escalated over time. He told Dr. Walsh the mother asked him to stop using cannabis in April 2019 and he did briefly stop, but then restarted. He also told Dr. Walsh he had not used it since the parties’ formal separation. [ 33 ] When asked about this on cross-examination, the father agreed he told Dr. Walsh he began using cannabis regularly, and he agreed that the mother had asked him to stop. [ 34 ] The father told Dr.

Walsh he was not open to an assessment at the hospital and reported he believed he needed to rebuild his life by getting a job. The father agreed on cross-examination he told Dr. Walsh these things. [ 35 ] With respect to Dr. Walsh’s statement that the father acknowledged he developed problems with online social media use as well as cannabis use, the father testified that the reference about social media use was not correct.

When asked how many hours a day he was on social media, he said he was not sure and it depended on the day. [ 36 ] At paragraph 10 of his affidavit sworn in December 2019 the father deposes his involvement with social media started in March 2019. He denies that he neglected his parenting responsibilities, but admits social media did preoccupy his thoughts and attention much more than it should have. [ 37 ] In his December 17, 2019 affidavit the father deposes that in the middle of April 2019 he believed he had a breakdown related to stress and wanting to separate from the mother. [ 38 ] In her report Dr.

Walsh writes: Clinical scales from both measures [the psychometric tests administered] suggested significant problems in the areas of social anxiety, somatoform pathology (i.e., physical manifestations of stress), and substance abuse. Personality pathology scales from the MCMI-IV identified the primary problem as Avoidant Personality Disorder traits. (Page 108 of the record) [ 39 ] Under the heading Clinical Formulation, Dr.

Walsh wrote that her diagnostic impression of the father was: Avoidant Personality Disorder, Adjustment Disorder (with anxious and depressive features), and Cannabis Use Disorder (in early remission). She states in her opinion the Avoidant PD is the primary clinical condition and is contributing to the other disorders. [ 40 ] When the father was referred to this portion of Dr. Walsh’s report, he said, “No, that is not correct.” He said the original report did not include any disorders.

When counsel for the mother said that this was the original report and it was attached to his affidavit, the father said he did not attach it and he wanted the original report from Dr. Walsh because he does not have a personality disorder. He said

that is just crazy. [ 41 ] In Dr. Walsh’s conclusion and recommendations, she notes the current assessment did not provide evidence the father was currently experiencing a serious mental illness such as psychosis or bipolar disorder. However, she says it is certainly possible his inter- related personality, anxiety, and addiction issues “mimicked” a more serious form of psychopathology at their worst.

She says the father acknowledged that the addictive nature of his internet use provided him with highs that might have looked like manic episodes, and that he sometimes had difficulty differentiating fantasy from reality regarding internet activities. [ 42 ] A case conference took place on December 19, 2019. The father’s December 17, 2019 affidavit was before the Master. The interim order was varied to remove the requirement for supervision of the father’s parenting time. [ 43 ] The father testified he obtained full-time employment in February 2020 with a technology company.

He said he was in a job that required critical thinking and problem solving and he was interacting with people on a daily basis. He said he was leading a team of four people. He originally applied for a senior software developer position but they gave him a regular software developer position. They said they would review that. He was in charge of a project. He testified he was not given a senior title but had the same title as people just hired that he was training and he had designed the system. [ 44 ] The father testified he moved into a home, where he continues to reside, in November 2020.

His mother co-signed on the mortgage with him. He said the property cost $179,000. He was not sure how much was borrowed from the bank, nor did he know what was left of the mortgage today. [ 45 ] The parties returned to court for a further case conference on March 9, 2020.

The parenting arrangement was modified to provide that the father’s parenting time would be every second weekend from Friday at 6:00 p.m. until Monday morning, at which time the children would be dropped off at their respective school or childcare arrangements, and in the event the Monday parenting time fell on a statutory holiday, the children would remain with the father until 4:00 p.m. The father’s Wednesday parenting time was changed to 4:30 p.m. until 7:00 p.m. [ 46 ] The Master ordered the father to pay child support of $1,177 per month based on his annual income of approximately $62,000.

The parties were ordered to share special expenses for the children for childcare on a pro rata basis. Using the father’s income of $62,000 and the mother’s income of $27,300, the father’s share was 69.4 percent, or $267 per month, for childcare for a total monthly payment of $1,444 per month. [ 47 ] On cross-examination the father asked the mother whether the fact he got a house and a job was why he got unsupervised visits. She responded that the father was demonstrating he was making progress with his mental health. He was paying child support and was taking steps to improve his situation.

Events starting in October 2021 [ 48 ] The mother testified that starting in the summer of 2021 she noted a change in the father’s behaviours. He was a little less consistent. She said he was asking her to go to dinner, but their relationship had not established to the point that would be acceptable. With respect to the children she said she initially did not have much of an issue with how they were coming back from the father’s, but then she began to note they were coming back smelling, not bathed and exhausted. They were having pizza for every meal.

In September 2021 she was notified by the school that at least on one occasion they were sent to school without lunches. She believed one of the boy’s teachers contacted her. [ 49 ] As detailed in her affidavit sworn December 13, 2021, the mother says around this time the father had completely lost his support network, he had left his employment and he was once again appearing to have delusional thoughts. [ 50 ] The mother attached to her affidavit a copy of an email attachment the father sent her during the weekend of October 10, 2021, when the children were in the father’s care.

This attachment is at pages 159 to 162 of the record. The Court has reviewed the document; it is bizarre and nonsensical. [ 51 ] Although the father’s oral evidence about the document was difficult to follow, he appeared to say the attachment was an original document he had authored in Toronto, which was subsequently edited in a disturbing way, but not by him. He did not know who had edited it. He testified he found it on his Google Drive and sent it to his lawyer in 2019. [ 52 ] He says the document the mother attached is incomplete because it does not include the email showing when it was sent to the mother.

The father appears to suggest the mother had the document since 2019 and pulled it out to use against him in October 2021. However, the mother testified the document was emailed to her by the father as an attachment. She said she did not alter it and said she had never seen it before he sent it to her in October 2021. [ 53 ] The father did not provide any proof it was sent from his counsel to the mother’s counsel or to the mother before October 2021.

I have no reason to believe the mother had seen this document before. [ 54 ] As a result of the mother’s concerns with the father, she asked if she could pick up the children early. The mother says the father hung up on her. She called the police to do a wellness check. [ 55 ] The father testified he was upset the mother had called the police. He said the officer spoke to the children and deemed everything was fine.

The mother agreed the police did a wellness check and the visit continued and the children were returned according to the schedule. [ 56 ] On October 22, 2021 the father sent an email to the mother, her lawyer and to Teslamotors.com, attached as exhibit B to her affidavit. The email attaches a link to a Twitter feed which she indicates was subsequently suspended.

[ 57 ] The mother testified there were hundreds and hundreds of tweets and none of them made sense. She testified she was concerned about the father’s mental state and did not feel it safe for the children to be in his care alone. She felt it would be in their best interest for supervised visits to be reinstated, especially since the father had left his employment. [ 58 ] In his oral evidence the father acknowledged he started sending tweets.

He testified he was a bit defiant and wanted to express the fact he was free to be him, and if he wanted to send cryptic messages on Twitter, he was free to express himself as long as he was not harassing anyone, which he did not believe was the case. [ 59 ] On cross-examination the father agreed it was true that at one point he sent over 1,200 tweets. He said this occurred before he was arrested. [ 60 ] The father said he was sending these messages around the time he went to the mother’s place of employment. He said when he went to see the mother one time, she told him to find another way to speak to her.

He said that is when he decided he wanted to fix things. He drove his bike from the west side of the city to see if the mother wanted to take a walk with him. He said this was later used as evidence of stalking. [ 61 ] On the evening of October 22, 2021 the mother went for dinner with her parents. She received a call from the police that the father had been at her home and had reported she had abducted the children. The mother says she was told to call 911 if the father came by again. [ 62 ] The father did come by her home again. The mother testified he was outside her home with a camera.

Her brother saw him and went out to talk to him. The police arrived. There was a confrontation. The father was put on the grass by the police and was arrested. The father was charged with criminal harassment. He was released on the condition he have no contact with the mother directly or indirectly and that he stay away from the mother’s workplace or her home. [ 63 ] On cross-examination of the mother, the father asked whether it was not true that the mother’s brother appeared to be provoking him as he was following him down the street.

The mother responded that she believed her brother was very worried for her safety. When asked if the brother believed that he was psychotic at the time she said, “Yes.” The father asked whether the brother was trying to get video evidence of the fact and the mother said she thought he was concerned because he saw a man outside her house taking pictures. [ 64 ] On October 24, 2021 the mother obtained an Emergency Intervention Order under the Intimate Partner Violence Intervention Act (EIO) for a period of 45 days, until December 8, 2021.

In addition to granting the mother temporary care and custody of the children (which the mother essentially already had under the interim order), the EIO prohibited the father from going near the mother’s home or place of work and it prohibited the father from going near or communicating with her, or contacting her or the children directly or indirectly. [ 65 ] The mother’s evidence is that on October 27, 2021 the father tried to remove the children from the daycare, in violation of the EIO. [ 66 ] The mother also says on November 1, 2021 she received a call from law enforcement and was advised that the police had located an abandoned vehicle, minutes away from her home and nowhere near the father’s home, which was allegedly rented by the father. [ 67 ] The mother says that on November 24, 2021 the father went to A.’s daycare and removed him.

The mother testified that staff at the daycare had a copy of the EIO. After the father removed A., the daycare called her and she called the police. A. was returned to her care after about an hour or an hour and a half. Her brother saw the father and A. leaving a store and called the police. [ 68 ] The father was charged with a violation of the EIO. [ 69 ] The EIO expired December 8, 2021. However, a no-contact order from Provincial Court between the father and the mother remains in place pending the trial of the father’s charges in Provincial Court.

The father testified his trial for the criminal harassment charge from October 21, 2021 is set to be heard May 3, 2023. [ 70 ] In his oral evidence the father said that when he was arrested (at the mother’s home) it was originally for disturbing the peace, and the officer’s bodycam will reflect that. He said the charge was dropped to breach of the peace and then criminal harassment.

He said he was originally falsely arrested as there was no reason for him to be arrested for disturbing the peace. [ 71 ] He testified that the mother’s statements she submitted in her statement of facts are framing him for something he did not do. He said there were some pretty egregious accusations of him being on a murderous rampage, but there was no time for that to have happened. [ 72 ] With respect to the incident with the rental car, the father said he rented a car to go pick up the children from daycare after the vehicle he had been using, which appears to be his mother’s, was impounded.

He denied he parked in a place to conceal where he was going. He said he parked nowhere near the mother’s place but left the car at a gas station. He then testified he was in an accident with the vehicle.

He said he informed the rental agency and they told him he owes $14,400 because he did not have insurance. [ 73 ] On December 20, 2021 the mother filed a motion asking for a variation of the interim order to suspend the father’s parenting time with the children and for an order requiring him to disclose criminal charges and any undertakings given to (provincial) court. [ 74 ] On December 23, 2021 the parties were back before the Case Management Master for a case conference.

The interim order was varied to require the children’s parenting time with the father to be supervised at all times by an agency to be engaged by the father at his expense. The order provided that the father’s parenting time would be arranged and scheduled between the supervisory agency and the father. [ 75 ] The father testified that after court on December 23, 2021 he was charged with assaulting three peace officers, but the charge was

then changed to resisting a peace officer, being a sheriff’s officer who works in the courthouse. The father testified he was convicted of resisting arrest. He has appealed this conviction. The appeal has not yet been scheduled. [ 76 ] On cross-examination the father stated that he feels he was falsely arrested several times. He said once the criminal harassment charge goes through the court system, he plans to sue. He said there is corruption on the part of the police.

The Father’s Current Situation [ 77 ] Although the father sent an email to the mother in October 2021 telling her he was going to leave his job, he testified he actually left his job in December 2021. [ 78 ] On cross-examination, the father testified he was not really asked to leave his job but he did not have many days left for extraneous circumstances. He believed he had 10 days to return to work but he decided not to. He agreed he had been off work and referred to the criminal harassment charges against him. [ 79 ] He denied he received any employment insurance after he left his employment.

He said he withdrew approximately $9,000 from his RRSP from that employment. The father acknowledged he continues to have income from the RRSP. However, it is unclear what the balance of the RRSP is. He did not file an updated financial statement, as ordered by the Court at the pretrial conference. [ 80 ] The father testified he had not worked in 2022 except for doing some lawn mowing for a neighbour and fixing their railing. He testified he has had one interview with a consulting company this year but had no call back. [ 81 ] After leaving his employment the father incorporated a corporation for self-employment.

His evidence was to the effect that a document appeared on his Google Drive telling him to incorporate a company for self-employment. The father did not disclose the existence of this corporation until cross-examination at trial. He denied having any income in the corporation. [ 82 ] When asked how he intended to support the children since he is not working, the father said he is looking for a job but he is not willing to take a position that only lasts a short time.

He said he is looking to get back to his career once his appeal for his conviction for resisting a peace officer and his criminal trial are concluded. [ 83 ] The father was asked what salary he anticipated earning if he finds work. He said it depends and that salaries in Saint John are lower and jobs in software development are fewer. He testified he applied to a few companies after leaving his position at the end of 2021 that were offering $30,000 less than what he was making before he left his employment. [ 84 ] The father continues to live in the residence he moved into in November 2020.

In terms of his recurring expenses, he does not pay rent. His mother pays his mortgage. He testified he will pay her back at $750 a month but did not say when. His mother has paid property taxes for 2022 of $4,083. When asked when his mother started making his mortgage payment, he said in February 2022 when he had the power shut off. He said the electricity was disconnected in February for a week, but his mother paid it. It was shut off again in April 2022.

The father said he recently paid $1,900 to have it reactivated, but was told because the meter had been removed, he would have to go through a process. [ 85 ] When asked where the $1,900 came from, he said from the RRSPs from the employment he left in December 2021. [ 86 ] The father does not have electricity from the Saint John energy grid at this time. He testified his home has a solar panel and he uses propane and an inverter. The solar panel runs the washer and charges all his devices.

He testified he cooks with propane using a barbecue. [ 87 ] With respect to how he heats his home, he said he does not require heat. When asked how he would heat the home in the winter, he said he has a generator and several barbecues. He is able to keep water heated and cook. [ 88 ] The father was asked how much he spends on fuel for the generator. He said he spends nothing as he does not use the generator. [ 89 ] The father has not paid his water bill and owes around $2,000. The water has not yet been disconnected.

He did not recall when he last paid the water bill. [ 90 ] The father testified he is doing renovations to the home. He said he is adding another layer to the existing insulation. He took down one of the kitchen walls to open the kitchen to the living room and is building a new island. When asked how much he has spent on renovations he testified he has an invoice from Home Depot for $2,200.

Again he paid this with funds from his RRSP from the employment he left in December 2021. [ 91 ] When asked if he has permits for the renovations, the father said he does not need any. [ 92 ] When asked about food, the father testified he was collecting bottles and cans and redeeming them, and that all he bought was potatoes. He would buy 20 pounds of potatoes a month at a cost of $9 or so. He says he goes the food bank to eat and he will stop at Romero House, a soup kitchen. [ 93 ] The father was asked about clothing.

He testified he has not had to buy any new clothes in years. [ 94 ] The father has a cell phone but no landline. He testified his cell phone bill is $13 to $15 a month. He does not have internet in the home and often will go to the library to use Wi-Fi. [ 95 ] The father testified he still has the Ford 250 truck the parties had during the marriage. It is not insured or registered. He said it was last inspected at least two years ago. At that time he was told he needed to replace the motor. He pays nothing for gas or oil. He said

he bicycles to the mall. [ 96 ] The father also testified that his mother’s car was impounded and towed away when he was falsely arrested. He said he went to retrieve it, but the cost was over $1,000 and there were recurring problems with the brakes. He took it to a mechanic but did not have the means to get it fixed. [ 97 ] The father has no life insurance. [ 98 ] With respect to medicines, he said he has Tylenol, and does not need to purchase anything else. [ 99 ] The father does not pay educational expenses or childcare expenses or make a contribution to the children's extracurricular activities.

He spends nothing on gifts or vacation. [ 100 ] With respect to his mental health, the father testified Dr. Walsh’s main recommendation was schema therapy. He testified he has been practising this therapy and it is very beneficial. [ 101 ] I note that Dr. Walsh did include a document about schema therapy, as referenced at page 14 of her report (page 111 of the Record).

She states the schema therapy approach developed by Jeffrey Young is widely regarded as the best approach for most personality disorders and she included a client handout on the topic with her report for the father’s review. [ 102 ] However, she also wrote in her report the father would likely benefit from treatment using a variety of techniques, including cognitive behavioural therapy (CBT) and mindfulness aimed at targeting negative beliefs about himself and others, and strategies for dealing with social anxiety/insecurities. [ 103 ] The father indicates at paragraph 11 of this December 17, 2019 affidavit that after his assessment by Dr.

Walsh, he made an appointment for therapy. His first appointment was supposed to be November 2019 but it was cancelled by the agency providing therapy. He indicates he had an appointment for December 18, 2019. It is unclear if he went to this appointment. [ 104 ] Dr.

Walsh also says in her report the father should probably also be assessed by an addictions counsellor at a facility such as Ridgewood to find out what services are available to support his progress and prevent relapse. [ 105 ] When asked on cross-examination what therapy he has received for addictions, the father testified he does not have any addictions. [ 106 ] The father testified he saw Dr. Bungash, a psychiatrist, three times. He said he mentioned to Dr. Bungash he had been accused of being psychotic. The father said Dr. Bungash assured him he was not psychotic.

The father said he prescribed him an antidepressant. When asked when this was, the father thought it was in 2021. [ 107 ] The father no longer takes antidepressants. He testified he takes no medication. The Mother’s Current Situation [ 108 ] The mother continues to reside with the children in the home she purchased with her parents in 2019. The mother left her employment at the restaurant to undertake a one-year course at the New Brunswick Community College in the medical lab assistant program.

She said when she graduates in June 2023 she will have a placement at the Regional Hospital. [ 109 ] The program is funded through Training and Skills New Brunswick, and the mother will receive employment insurance. She also has received student loans and grants in the amount of $14,689 (Exhibit A-1.) [ 110 ] The mother’s updated financial statement sworn October 4, 2022 indicates total income of $30,128, made up of $880 per month, which is an estimated amount of her monthly employment insurance, and $1,630.74 per month for the child tax benefit.

Position of the Parties [ 111 ] At the hearing the father stated his request was for equal parenting time with the children, but he continues to seek decision- making authority for the children. He also said he eventually wants an apology from the mother, as a few things were said by her on social media when they first split up. [ 112 ] The father does not seek an order for child support.

He seeks an equal division of marital assets as at the date of separation. [ 113 ] The mother seeks decision-making responsibility for the children and an order for majority parenting time, and an order that any parenting time or contact by the father with the children be supervised by a professional agency at the father’s expense. [ 114 ] The mother also seeks an order for imputation of income to the father, and child support and special expenses payable by the father commencing May 1, 2019.

She also requests an equal division of assets, valued at the date of separation, with the exception of the Bitcoin account, which she submits should be divided based on its value at trial. [ 115 ] The mother requested significant costs be ordered against the father. The mother also requests an order prohibiting the father from disposing of any of the assets of the parties in the father’s investment accounts until he pays any order for child support, arrears of support, property division equalization and costs. ISSUES

Divorce [ 116 ] The Court heard evidence to satisfy the requirements under section 8(2) (

a) of the Divorce Act . Therefore the divorce is granted. [ 117 ] The remaining issues are: 1. What parenting order is in the children’s best interest? 2. Child Support:

a) should income be imputed to the father?

b) what is the appropriate amount of child support payable?

c) special expenses 3. What is the appropriate division of marital property? 4. Should costs be ordered in favour of the mother? 5. Mother’s request for “non-disposition order.” LAW AND ANALYSIS Issue 1 - What parenting order is in the children’s best interest? [ 118 ] The following provisions of the Divorce Act are relevant: Subsection 16.1(1): The Court may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage.

Subsection 16.1(4): The Court may allocate parenting time and decision-making responsibility between the spouses or give it to one spouse, and the Court may include requirements with respect to any means of communication during parenting time and provide for any other matter that the court considers appropriate. Subsection 16.1(5): The Court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate. Subsection 16.1(8): The Court may order that parenting time be supervised.

Subsection 16(1): The Court is to take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order. Subsection 16(3) : In determining the best interests of the child, the court is required to consider all factors related to the circumstances of the child, including (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (

d) the history of care of the child; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. Subsection 16(4): In considering the impact of any family violence under paragraph (3)(j), the court is directed to take the following

into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (

h) any other relevant factor. Subsection 16(2): When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. Subsection 16(5): In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Subsection 16(6): In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child. Best Interests Analysis [ 119 ] Considering the best interest factors I make the following findings: (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability [ 120 ] The eldest child B. is now nine years old. In his affidavit sworn December 17, 2019, t he father indicates that B. has issues with speech development and was receiving help with his speech in kindergarten and daycare. He indicates he does not believe he has been receiving any professional help since separation. [ 121 ] The mother testified that B. had some developmental delays and there are some concerns he may be on the autism spectrum. He sees pediatrician Dr.

Alexander and is on a waitlist to be tested for autism. She also testified that B. has outgrown most of his issues and does well in school. He is making friends. [ 122 ] The mother testified that B. loves to play Minecraft. He excels in math. He is doing engineering projects at home. He draws and sells comics. [ 123 ] The mother testified the last time the father had interaction with the school about B. was in December 2021.

The mother was late in calling the hotline about his absence from school and the father was included in emails with the school. [ 124 ] The mother testified that G. is currently in grade three. He has no medical issues. He attends an art club after school and is doing fantastic. He likes to play a lot of Battleship and likes to draw. His friends come over to the house and he goes to his friends’ houses. [ 125 ] The mother testified that A. turns five at the end of this year. He goes to daycare three days a week.

The mother testified she held him back from starting kindergarten this year because of his issue with his speech. The mother testified A. has been involved with the FACE program and does speech therapy. The mother’s father takes him to the hospital to work with a speech therapist there. (

b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life [ 126 ] The mother has been the children’s primary caregiver and the parent who has provided stability for the children over at least the last three years. I accept that the children have a strong bond with the mother. [ 127 ] The mother does not dispute that the father loves the children and that the children love him.

It also appears the children have a bond with the father’s mother who sees the children with the mother when requested. [ 128 ] While the Court can understand that the order requiring the father to engage an agency to supervise his parenting time with the children and pay for the supervision was onerous, I question the father’s testimony that he did not arrange for supervision because he did not have the money to pay to have the children over the whole weekend. The order did not require the father to have the children over the whole weekend.

It said that the specific parenting time was to be arranged and scheduled between the supervisory agency and the father,

in light of the fact that there remained a no contact order from Provincial Court between the applicant and the respondent. [ 129 ] The father has access to some funds. He has withdrawn RRSP monies to support himself. [ 130 ] It is difficult to understand the father’s motivation in not arranging for any contact with the children since December 2021. (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse [ 131 ] The father appears to believe the mother has unreasonably interfered with his relationship with the children. [ 132 ] The mother asked for supervision of the father’s parenting time at separation due to her concerns about the children’s safety with the father. In my view, the mother’s concerns were valid. [ 133 ] In December 2019 the mother appears to have agreed to lift supervision after the report of Dr. Walsh was filed.

It appears the mother was making efforts to try to ensure an ongoing relationship between the children and the father. [ 134 ] However, the father’s behaviours commencing in October 2021 were concerning and led the mother to again request supervision of the father’s parenting time. Again, I find her concerns are valid. (

d) the history of care of the child [ 135 ] Both parties filed affidavit evidence about their roles in caring for the children. The father says he was a stay-at-home parent and primary caregiver for the parties’ youngest child, A. after his birth at the end of 2017. He says he and the mother shared parenting responsibilities for the children since their birth, and that since October 2018 he was primarily caring for the children in the home because the mother had returned to work. [ 136 ] The mother deposes she was always the children’s primary caregiver and homemaker.

She says when she started working in Saint John in late August 2018, B. was commencing kindergarten and G. was going full-time to daycare. She acknowledged there were days when she worked when the father stayed home with A., but says she carefully monitored his parenting.

While she deposed it was rare that the father had all three children in his care for any period of time, on cross-examination the mother agreed the father had all three children in his care for part of the days when he picked them up from school. [ 137 ] The mother also indicates the father suffered from delusions, psychosis, mood swings and had great trouble focusing on day-to-day tasks. She indicates that his deteriorating mental health got to the point where, in April 2019, he was unable to perform tasks such as housekeeping or cooking, and was unable to perform tasks such as bathing or feeding the children.

She deposes she was the parent responsible for all meal preparation, all housework, all grocery shopping, any homework with B., bill payments, and legwork to source what the family required, including a residence. She says that she would try to help the father with managing the household by making meals for the next day the evening before, and she would clean the home each day upon her return from work.

She would bathe the children and put them to bed. [ 138 ] In his affidavit sworn in December 2019 the father denies that he neglected his parenting responsibilities, but acknowledges that social media preoccupied his thoughts and attention much more than it should have, starting in March 2019. He indicates he believes he had a breakdown related to stress in the middle of April 2019. [ 139 ] I am of the view the father was doing more caregiving for the three children prior to separation than the mother gives him credit for.

However, I accept the father was having issues that took away from his ability to give his attention to the children in the spring of 2019, leading up to the parties’ separation. [ 140 ] Since separation in April 2019, the children have been in the mother’s primary care, and she has been responsible for meeting the children’s needs since that time. (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained [ 141 ] The Court has not received evidence of the children’s views and preferences as to where they wish to reside. [ 142 ] However, at four years old, A. is too young to be able to express his views and preferences in a way the Court can put any weight on. At nine and eight years old respectively, B. and G. are also still quite young for the Court to be able to put much weight on any views and preferences expressed by them. (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage [ 143 ] The father testified he wanted it to be known that he believes in a higher power. However, there is no evidence that religious or spiritual upbringing or cultural or linguistic upbringing are relevant factors as they relate to the children’s best interests. (

g) any plans for the child’s care [ 144 ] The father’s plan is to have the children reside with him on an equal time basis with the mother. However, there are numerous concerns from the Court’s point of view with the father’s living situation. [ 145 ] The father appears to say he can live on his net RRSP income of approximately $7,000.

He does not appear to be actively seeking employment, as he testified he intends to get back to his career once his criminal legal proceedings are completed. [ 146 ] His home is not currently connected to the electrical grid (although the father indicated the electricity will be connected) and it appears the father will be relying on some combination of generators and propane and possibly barbecues for heating.

[ 147 ] While he indicated he will be paying the water bill, he has not paid it to date. I conclude there is a chance the water will be shut off. [ 148 ] The father testified he will be paying the mortgage on the home; however, his mother is paying the mortgage for him at this time, despite having limited financial resources. When asked how he would be able to pay the mortgage, the father said he could rent, if he is not able to have the children. He said could be going to jail for a year and a half.

He then said he honestly did not think that was going to happen and he thought he would get a six-figure settlement for wrongful arrest. [ 149 ] The father’s plan is not grounded in reality and it is not child-centred. His current lifestyle may be acceptable for him. However, it is not practical or acceptable for the parties’ three young children to be placed in such a situation. [ 150 ] The children currently go to school in the Kennebecasis Valley. This is a 25 to 30-minute drive from the father’s home.

When asked how he would get the children to school in the morning (if they remain in the school they attend) the father said he would drive them. He then said that was not possible because his license was suspended for nonpayment of child support. [ 151 ] In his plan, the father said the children would go to Milledgeville North, which has good programs. He said that school was in a more central location to their families. However the mother lives in the Kennebecasis Valley. [ 152 ] With respect to family support, the father agreed his mother was not present at the trial.

He said in the past she stated she did not want to be in the middle of any disputes, especially when she was required to supervise his parenting time. [ 153 ] The mother’s plan is to continue to reside in the home that she moved into with the children in 2019. Upon completing the one- year lab assistant program in June 2023, she will move into a job placement. [ 154 ] The children would continue to go to the school they have been attending. A. will continue to attend daycare this year and will start kindergarten at the school attended by his siblings next year. (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; [ 155 ] In my view there are concerns with the father’s ability and willingness to appropriately care for and meet the children’s needs. I accept the mother’s evidence he was emotionally unwell when he filed his application in May 2019, requesting primary care of the children.

For example, the father indicated in his supporting Affidavit (and has confirmed this evidence at trial) that he and the mother were going to the hospital on April 19, 2019 for relationship counselling as opposed to seeking assistance for his mental health. This is simply not logical. [ 156 ] While it appears that the father’s ability to care for the children during his parenting time improved, leading to the supervision requirement being lifted by the end of 2019, concerning behaviour recommenced around October 2021.

The father told the mother he was going to quit his employment, and according to his own evidence, he said he was going to go work for Twitter. He sent the mother the bizarre email attachment the weekend of October 20, 2021. He showed up at the mother’s work and residence, leading to charges of criminal harassment. [ 157 ] While subject to the emergency intervention order that prohibited him from having contact with the children, he rented a car so he could pick up the children from daycare, but apparently got into an accident and left the car at a gas station.

He later removed A. from daycare. [ 158 ] The father is of the view that the mother has twisted facts and created a false narrative about him, in particular with respect to his mental health. [ 159 ] He also appears to believe that Dr.

Walsh has fabricated parts of her report, or that someone altered it, although I note the report was attached to the father’s affidavit. [ 160 ] He also appears to believe an unknown person or entity altered a document he originally authored, in a disturbing manner, and similarly, some unknown person or entity created a document on the father’s Google Drive telling him to incorporate a company for self- employment, without any knowledge on his part. [ 161 ] The father told the Court in closing arguments that he would expect, “if” this were a court of law, perjury and fraud would not be something that is tolerated. [ 162 ] The father further submitted he felt the process had not really gone the way he expected.

He thought by filing for divorce things would go his way and he would have the law on his side and not have his children arbitrarily removed from him. He said he was not disappointed with himself, but was not happy with the way things are going regarding parenting, and things being said are false. He said the initial set of fabrications has been repeated over and over. [ 163 ] The father’s evidence about fabrication lacks any grounding in reality and it is concerning for the Court.

These concerns are reinforced by the father’s own evidence about his living situation, his behaviours in the fall of 2021, and his subsequent lack of effort to attempt to see the children after supervision was reimposed in December 2021. [ 164 ] When asked on cross-examination if the mother was a bad parent, the father said, “No.” He said she has the best intentions for the children. When asked if the children are fed in her care, he said he was not able to answer that, but he assumes so, as they are a healthy weight.

He agreed that they were appropriately dressed when he sees them. [ 165 ] The father said he has concerns about the children’s ability to be educated in the mother’s care. He testified there have been a few instances of bullying of B. When asked when this occurred, he was not sure if it was in 2020, 2021 or 2022.

[166] The mother testified that grades one and two were a bit rocky for B. and there were a couple of incidents when he felt there weredifferences between him and his classmates. She said he has since changed teachers and the sense that he felt like an outsider haslessened. [167] The father said he wants decision-making authority for the children because the mother has not really signed them up for anyactivities. He testified the mother did not take the children to swimming or skating lessons after separation.

When asked what he hascontributed towards activities for the children, the father responded by saying something to the effect of, “What does the dollar amountmatter when it’s for their benefit?” [168] I accept that the mother has been providing appropriate care for the children since separation. She has been the parent to deal withthe children’s educational and childcare needs and to address their health and developmental needs.

She has been primarily parenting thechildren since October 2021 without financial assistance from the father, and was also doing this from separation at the end of April2019 until March 2020 without any financial assistance from the father. (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particularwith one another, on matters affecting the child [169] The no contact order, and the apparent lack of any third party able or willing to assist the parties, prevents them fromcommunicating and cooperating on matters affecting the children. [170] While the father appears to attribute responsibility for lack of communication to the mother, I find that the mother attempted tocommunicate with the father about the children, despite her concerns about his state of mind, until he engaged in the unstable and volatilebehaviours that led him to his criminal harassment charge and the EIO in October 2021. (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate onissues affecting the child [171] The father will have a criminal trial in the spring of 2023 on the charge against him of criminal harassment.

However, the issuanceof the emergency intervention order, and the father’s ongoing lack of respect for that order, lead me to conclude on a balance ofprobabilities the father has engaged in harassing behaviours towards the mother and has engaged in behaviours that caused the mother tofear for her safety and that of the children. [172] The father’s evidence is that he was falsely arrested, that the police are corrupt and that he will be suing the police once hiscriminal harassment trial is over.

This does not give me confidence the father has insight into his own behaviours and their impact on hischildren or that he has addressed the underlying issues that led him to have these problems. (

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. [173] The father is currently subject to a no contact order with the mother arising from the criminal harassment charge and/or the chargefor breaching the emergency intervention order. [174] Although the father is not prevented from seeing the children, the father cannot have direct or indirect contact with the mother forthe purpose of arranging any parenting time or communicating about the children.

Conclusion on parenting order [175] This is not an appropriate case for an order for shared parenting time in light of the concerns with respect to the father’s ability toprovide appropriate and safe care for the children, as well as the inability of the parties to communicate and cooperate in the bestinterests of the children, arising out of the father’s behaviours. [176] The mother has been the parent to provide stability, continuity of care and a secure environment for the children.

She has beenresponsible for decision-making for the children regarding schooling and their wellbeing and development. [177] I cannot conclude the father is in a position to make appropriate decisions for the children. I find therefore find it is in thechildren’s best interests that the mother be granted residential care and primary parenting time for the children as well as sole decision-making authority for them. Request of the mother for an order for supervised access [178] As stated in B. (T.) v. M. (A.), 2002 CarswellNB 560 (N.B.

Q.B.): 89 Access is now recognized as the child's, rather than the parents', right. The Supreme Court of Canada canvassed facets of the accessissue in Young v. Young, (SCC), [1993] 4 S.C.R. 3 (S.C.C.): 60 Access rights exist in recognition of the fact that it is normally in the interests of the child to continue and foster the relationshipdeveloped with both parents prior to the divorce or separation. This being said, the right to access and the circumstances in which ittakes place must be perceived from the vantage point of the child.

Wherever the relationship to the non-custodial parent conflictswith the best interests of the child, the furtherance and protection of the child's best interests must take priority over the desiresand interests of the parent. 61 As the ultimate goal of access is the continuation of a relationship which is of significance and support to the child, access must

be crafted to preserve and promote that which is healthy and helpful in that relationship so that it may survive to achieve itspurpose. Accordingly, it is in the interests of the child, and arguably also in the interests of the access parent, to remove or mitigate thesources of ongoing conflict which threaten to damage or prevent the continuation of a meaningful relationship. (emphasis added) [179] In D. (A.J.) v.

B. (T.), 2013 CarswellNB 355 (N.B.Q.B.), the Court stated the following with respect to termination of access ororders for supervised access: 29 In an annotation on denial of access contained in Family Law e-Letter, NJI April 22, 2013, Dr. Julian Payne outlined some of thecriteria to be considered: Terminating access is without a doubt a measure of last resort reserved for those situations where access on the evidence offers no benefitto the child.....Relevant case law provides no standard criteria for terminating access orders, but in V.S.G. v. L.J.G., (ON SC), [2004] O.J.

No. 2238at para. 135, Blishen J., of the Ontario Superior Court of Justice, identifies the following factors as thosemost frequently relied upon when courts terminate an access order or, alternatively, grant an order for supervised access: 1. Long-term harassment or harmful conduct towards the custodial parent that creates fears or stress for the child. 2. A history of violence; unpredictable, uncontrollable behaviour; alcohol or drug abuse that is witnessed by the child or presents a risk tothe child's safety or well- being. 3. Extreme parental alienation. 4. Persistent denigration of the other parent. 5.

The absence of any relationship or attachment between the child and the noncustodial patent. 6. Neglect or abuse of the child during access visits. 7. The wishes or preference of an older child to terminate access. [180] In this case the mother does not ask for an order terminating the father’s parenting time with the children. She requests an orderthat his parenting time be supervised because of her concerns for the children’s safety and wellbeing in his care. [181] The father argues he has not been diagnosed with any serious mental disorder and there is no basis to order that his parenting timebe supervised.

However, the father has engaged in unpredictable and concerning behaviours. He is not receiving any ongoing counsellingnor is he taking medications which he says were prescribed to him by a psychiatrist in 2021. [182] He has not seen the children for a period of almost one year now and he is living in conditions that are inappropriate for children. [183] I find that supervision of the father’s parenting time is necessary at this time. [184] The father’s mother had provided supervision previously.

However, this does not appear to be an option as the Court received noevidence from the father’s mother that she would be able or willing to provide supervision. [185] I therefore order that the father shall have parenting time to be supervised by a professional agency, at the father’s expense, or bysuch individual the parties may agree upon. The father’s parenting time need not be over a full weekend. It shall be for such reasonableperiods of time as the father arranges with the supervisor, provided it does not conflict with a prior commitment for the children thatcannot be rescheduled.

Issue 2 - Child support [186] The father requested an order for custody of the children in his application filed in May 2019. While he did not request an order forchild support, the children have been in the mother’s primary care since separation at the end of April 2019. The father has an obligationto pay child support in accordance with

section 3 of the Child Support Guidelines. I find it is appropriate for the order for child supportto commence May 1, 2019. [187]

Section 3 of the Child Support Guidelines says that unless otherwise provided, the amount of support payable for a child is to bedetermined based on the income of the spouse against whom the order is sought. [188] A spouse’s income is defined in s. 2 of the Guidelines to mean the spouse’s annual income determined under sections 15 to 20. [189]

Section 15 of the Guidelines provides that, subject to any written agreement between the parties, a spouse’s annual income isdetermined in accordance with sections 16 to 20 of the Guidelines. [190]

Section 16 says a spouse’s income should be determined based on the spouse’s “Total Income” on line 150 of the T1 general taxreturn.

A) Should income be imputed to the father? [191] The mother asks the Court to impute income to the father.

Section 19 states: 19.

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstancesinclude the following:

(

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; (

b) the spouse is exempt from paying federal or provincial income tax; (

c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (

d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; (

e) the spouse’s property is not reasonably utilized to generate income; (

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

g) the spouse unreasonably deducts expenses from income; (

h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate thanemployment or business income or that are exempt from tax; and (

i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction ispermitted under the Income Tax Act. [192] The party making a request that income be imputed must present a prima facie case that there is an evidentiary basis to imputeincome to the other party. The onus then shifts to the party to whom income is sought to be imputed to defend his or her position as towhy income should not be imputed. (See Payne and Payne, Child Support Guidelines in Canada, 2015 at page 178.) [193] As stated by the New Brunswick Court of Appeal in D.L.M. v.

J.A.M., 2008 NBCA 2 at paragraph 40: … The amount a court may impute however, is subject to some constraint, as the Ontario Court of Appeal stated at para. 44 of Drygala v.Pauli (2002), b, (ON CA), 61 O.R. (3d) 711, [2002] O.J. No. 3731 (Ont. C.A.): “Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rationalbasis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in theevidence.” [194] I also note

section 23 of the Child Support Guidelines which provides that the Court may draw an adverse inference against aspouse who fails to comply with the disclosure requirements in

section 22 of the Guidelines, and impute income to that spouse in suchamount as it considers appropriate. The father’s income in 2019 [195] The father filed no proof of income for 2019 .

His sworn financial statement dated May 10, 2019 indicated his income was “TBD”and stated he was unemployed and looking for gainful employment in his field as a software developer. [196] He attached his 2018 tax return indicating he had $19,005 in Employment Insurance and $182.50 in interest and other investmentincome for a total line 150 income of $19,187.50. [197] The father testified he had completed his tax return for 2019 but he did not produce it. [198] The mother submits the father should be imputed income at his 2018 level for 2019 in light of his failure to provide proof of hisincome in 2019.

I accept it is appropriate to do so. The father’s income commencing January 1, 2020 [199] As was the case for 2019, the father said he completed his tax return for 2020 but did not produce it. [200] The father testified he did not complete his 2021 tax return because he did not want the Office of Support Enforcement to garnishhis refund in 2021. [201] He testified he had a T-4 for 2020 from employment with the technology company he worked for from February 2020 untilDecember 2021, indicating he had income of $60,952. He said he earned no other income in 2020.

However, the father did not providethe mother or the Court with a copy of his T-4. [202] Similarly, he testified he had a T-4 for 2021 from employment with the same technology company indicating he earned $67,083.It was not provided to the mother or to the Court. [203] The father also has an RRSP from his employment that he left at the end of 2021. In his evidence he referred various times towithdrawing amounts from it. He testified he withdrew approximately $9,000 from it in 2021, and said the net amount he received wasapproximately $7,400.

The Court does not know what amount remains in this RRSP as the father did not prepare an updated financialstatement. [204] The father’s evidence is that in 2022 he did some lawn mowing and weeding for a neighbour and fixed their railing, for which hewas paid $40.

[ 205 ] When asked if he had a medical excuse or report indicating he had no ability to be employed, or any documents saying he is unable to work, the father said, “No.” He then said he did not think a family doctor is really qualified to make that decision. When asked why he is not working, the father said he is on probation, but he has means and is working on the renovations in his home.

He said he has $7,000 for the rest of the year, which he said is not an unreasonable amount to function on. [ 206 ] The father also revealed for the first time at trial he incorporated a company in October 2021, around the time he told the mother he was leaving his employment. He said he is now self-employed. He denied having any income in the corporation. [ 207 ] The mother submits the Court should impute the father an income of $62,000 commencing January 1, 2020. [ 208 ] In the absence of proof of income from the father, I accept it is appropriate to impute the father income of $62,000 for 2020 and 2021.

This amount is slightly higher than what he testified he earned in 2020 and lower than what he said he earned in 2021. [ 209 ] The mother asks the Court to continue to impute the father income at the level of $62,000 commencing January 1, 2022.

I have considered the fact the mother takes the position the father’s mental health issues warrant an order that his parenting time be supervised, yet she asks the Court to find he can continue to work in a software development position earning approximately the same income as he did in his position with the technology company. [ 210 ] However, as the mother points out, the report of Dr. Walsh does not indicate the father has issues that prevented him from working at that time.

The father has provided no medical evidence to support a finding he is unable to work due to any health issue. [ 211 ] The father denied he was terminated from his employment due to issues with his mental health. His explanation appears to be that he needed time away from work because of his criminal charges. [ 212 ] The father subsequently incorporated a corporation for self-employment. However, he did not disclose this fact until trial of this matter.

His evidence varied between saying he was self-employed, doing odd jobs for neighbours, and saying he intends to return to his career once his criminal matters are completed, and as I understood it, once he is vindicated. The father’s issues, including his criminal charges and upcoming trial, are not the fault of the children or the mother. [ 213 ] In the meantime, it appears the father is living on RRSP income from his former employment, which he says amounted to a withdrawal of $9,000.

However, he has provided no proof of the balance in this RRSP account or withdrawals. [ 214 ] In the circumstances, I conclude the father is intentionally underemployed or unemployed, and it is appropriate to impute income to him on this basis. As well, it is appropriate to impute him an income based on the fact he has not made proper financial disclosure of his income to the mother or to the Court. [ 215 ] Considering all the circumstances, I impute the father an annual income of $62,000 commencing January 1, 2022. This is the best evidence the Court has of his earning potential.

B) What is the appropriate amount of child support payable? 2019 [ 216 ] Pursuant to the Child Support Guidelines , the father should have paid $315 per month as child support for the three children, based on an imputed income of $19,187, or $2,520 ($315 per month x 8 months) for 2019. The father paid no child support in 2019. He therefore owes the mother $2,520 for 2019.

January 1, 2020 to December 31, 2021 [ 217 ] Based on an imputed annual income of $62,000 the father should have paid child support of $1,177 per month for the three children of $28,248 ($1,177 x 24 months). [ 218 ] The mother accepts that the father paid $28,872 in 2020 and 2021 (combined child support and special expenses). Applying this amount to child support owed, the father has a credit of $624 for 2020 and 2021.

January 1, 2022 to October 31, 2022 [ 219 ] Based on an imputed annual income of $62,000 the father should have paid child support of $1,177 per month for the three children or $11,770 ($1,177 x 10 months). [ 220 ] The father paid no support in 2022. Therefore for the period January 1, 2022, to October 31, 2022, the father owes the mother child support of $11,770.

Prospective Child support [ 221 ] Commencing November 1, 2022, based on an imputed income of $62,000, the father shall pay the mother child support for the three children in the amount of $1,177 per month, payable the first day of each month, until further order of the court.

C) Special expenses [ 222 ] The mother asks for an order for sharing of childcare expenses back to May 2019.

[223] The mother’s income at line 150 and the amount claimed for child care expenses at line 214 of the mother’s tax returns was thefollowing: 2019: income of $26,881; child care expenses of $3,450 2020: income of $32,999 ($18,649 from employment and $14,350 from Employment Insurance and other benefits); child care expensesof $,3992 2021: income of $25,282; child care expenses of $2,374 [224] The mother testified that in 2022 she pays $68.50 per week for babysitting and daycare, after subsidy. She said when she is in herNBCC program there will not be a big difference in the expense.

I accept her estimated child care expense will be $3,562 ($68.50 perweek). [225] The mother’s income in 2022 from EI benefits is estimated at $10,560. This is less than her 2021 income. However, the mothersubmitted it is appropriate to use her 2021 income of $25,282, as she left her employment to undertake the NBBCC program. I find this isreasonable. [226] The mother’s counsel submitted DivorceMate calculations using the incomes the Court has imputed to the father for 2019, 2020,2021 and 2022 and going forward, and the above-noted incomes and childcare amounts claimed by the mother.

I accept thesecalculations, as follows: 2019: The father’s pro rata share of the child care expense is 41.6% which equates to $95 per month. He therefore should have paid themother $760 for 2019 ($95 x 8 months) 2020: The father’s pro rata share of the child care expense is 65.3% which equates to $117 per month. He therefore should have paid themother $1,404 for 2020 ($117 x 12 months) 2021: The father’s pro rata share of the child care expense is 71% which equates to $126 per month.

He therefore should have paid themother $1,512 for 2021 ($126 x 12 months) January 1, 2022, to October 31, 2022: The father’s pro rata share of the child care expense is 71% which equates to $190 per month. Hetherefore should have paid the mother $1,900 for this period ($190 x 10 months). Prospective special expenses [227] Going forward the father shall pay his pro rata share of the childcare expenses, estimated at $3,562. The father’s pro rata share is71 percent and the mother’s is 29 percent, based on the father’s imputed income of $62,000 and the mother’s attributed income of$25,282.

Therefore commencing November 1, 2022, the father shall pay the mother $190 per month for the special expense of childcare,payable on the first day of each month, until further order of the court. Total arrears payable by the father for child support and special expenses: [228] The father owes the mother $13,666 for child support for the period May 1, 2019 to October 31, 2022.

In addition he owes themother $5,576 for special expenses for childcare, for a total arrears amount of $19,242. [229] The parties shall exchange and file with the court their T-1 general income tax returns and notice of assessment or reassessment,and the father shall provide the mother and file with the court copies of any financial statements for any corporation for which he is ashareholder on or before June 30 of each year, commencing in June 2023, for the purpose of adjusting child support if there is a cha

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