Harvie v. Paliulis, 2013 ONCJ 721

ONTARIO COURT OF JUSTICE DATE: December 18, 2013 COURT FILE No.: Halton137/11 Citation: Harvie v.

Paliulis , 2013 ONCJ 721 BETWEEN: ROY ROBERT HARVIE Applicant — AND — JULIJA MARIE PALIULIS Respondent Before Justice Roselyn Zisman Heard on May 17 and September 16, 2013 Reasons for Judgment released on December 18, 2013 Roy Robert Harvie ........................................................................................ on his own behalf Julija Marie Paliulis ...................................................................................... on her own behalf Zisman, J.: Introduction [ 1 ] This application was initially commenced by the applicant (“father”) for access to his daughter.

The respondent (“mother”) filed an answer and her own claim for child support, ongoing and retroactive spousal support, ongoing and retroactive special expenses retroactive to 2007, payment of her medical and dental bills, payment of her legal bills and a restraining order. [ 2 ] The issues raised by the father for access to his daughter were settled and therefore this trial proceeded only with respect to the claims raised by the mother. Background [ 3 ] The parties were married on May 23,1987 and separated in 2006. The mother is 57 years old and the father is 66 years old.

They have 4 children. [ 4 ] J.V.H. was born on […], 1990. He is in his third year of a four year program at University of Toronto in an engineering program and resides away from home but stays at the mother’s home on most weekends. [ 5 ] P.M.H. was born on […], 1991. He graduated from Sheridan College and has been living with his father for the last 3 years. He has continued to reside with his father since graduation. He is currently working but also pursuing an accounting diploma. He

visits his mother about every second weekend. [ 6 ] K.M.P. was born on […], 1993. He attended first year at Fanshawe College in a horticultural design three year program. He lives in London and resides with the mother on some week-ends. His current school status was the subject of dispute. [ 7 ] A.U.P. was born on […], 1998 and resides at home. She is currently in Grade 9.

The parties entered into temporary and then final minutes of settlement that provided that the mother have custody of A.U.P. and the father have specified access. [ 8 ] On December 5, 2011 a contested motion for temporary child and spousal support was heard by Justice O’Connell. The mother was represented by counsel and the father represented himself. On a temporary basis, based on the father’s income of $56,000, he was ordered to pay the mother child support for 3 children in the amount of $1,101 per month. He was also ordered to pay $224 per month as spousal support as of December 1, 2012.

The endorsement states that although success was divided, the mother was largely successful on her motion and the father was ordered to pay costs of $500. [ 9 ] The parties attended before me for a trial management conference and at an assignment court where orders were made for disclosure and with respect to the trial process. [ 10 ] The mother, who was to be the applicant on the trial, was ordered to prepare a trial record, an updated financial statement and a document brief with any documents she would be relying. She failed to comply with this order.

At the commencement of the trial I waived the necessity of the trial record as the mother was representing herself. [ 11 ] After the first day of trial on May 17, 2013 the matter was adjourned for several months as the mother was due to have hip surgery. A further order was made regarding the disclosure the mother needed to provide on the resumption of the trial.

Upon the resumption of the trial the mother filed an affidavit attaching some of the documents she relied upon and an updated financial statement. [ 12 ] The father served and filed a document brief that included a detailed statement he prepared that outlined his position and the background of the parties and also included various receipts for payments and other documentary evidence to support his case. Both parties testified at the trial. Roles in the marriage and financial circumstances [ 13 ] The mother is 58 years old. She has a college diploma in photography and industrial sewing and design.

She worked as a photographer until the children were born and then became a fulltime housekeeper and cared for the children. [ 14 ] The mother has suffered from depression since about 2006 and is treated with medication. A medical report was filed on consent that confirmed that the mother suffered from osteoarthritis in both feet and confirmed that she was scheduled for hip surgery.

The report also confirmed that she suffered from a major depressive disorder that disrupted her sleep patterns and daily living and prevented her from maintaining full time employment. [ 15 ] The father confirmed that he initially agreed with the mother staying home to care for their young children but that when Kostras began school he asked the mother to find a job and he asked her again when their youngest child began grade 1. According to the father the mother told him that she would never work and he should not ask her again.

The mother testified that the father was yelling at her a lot to get a job and this upset her. [ 16 ] The father testified that he always had a hard time earning enough income and was unemployed for several years. He admitted that he took what may have been an unreasonable risk in investing in the stock market.

He testified that he lost about $17,000 not $65,000 as alleged by the mother. [ 17 ] The parties were able to purchase a family home in Oakville but according to the father were only able to afford the upkeep by renting out rooms that was not permitted by the zoning bylaws. [ 18 ] In 2004 the father became interested in purchasing an income property in Hamilton but this would require re-financing their home in Oakville. The father testified that initially the mother agreed but then refused and the father was then required to arrange financing through a personal loan and mortgaging the income property.

The property was a small duplex with a basement suite. The father left the basement apartment vacant as he anticipated that he would have to live there as he felt the marriage was falling apart. [ 19 ] In 2005, the city informed the parties that they could no longer rent out rooms in their Oakville home. According to the father, the home needed to be sold and the mother would only agree to the sale if she received all of the proceeds. The mother denied that she demanded all of the proceeds or that she received them all.

Although the mother initially stated that she just received her share of the proceeds, she then agreed that she received the entire proceeds of $287,842 except for $45,000 that the father received. [ 20 ] Upon sale of the family home in July 2005 the mother and the children moved into an upper suite in the father’s Hamilton property. The father stated that he lived in the basement apartment but the mother stated that they lived together as a family. [ 21 ] By the end of 2005, with the father’s assistance, the mother found a new home in Burlington that she purchased in her name alone without any mortgage.

The father alleged that the mother took all of their furniture and other belongings. The mother admitted this but testified that most of it was junk that other people had discarded and she fixed up. [ 22 ] The father stated that he did a lot of work over the next few years at the home and paid for most of the materials for the repairs but not the renovations.

The mother initially testified that the father only did some clean up at the house but then agreed to the repairs and improvements he claimed to have made. [ 23 ] The father testified that he tried to support his family and paid for the half the cost to purchase the mother’s car and for car repairs, paid for the insurance and gas, bought bicycles and a computer for the children. According to the father he paid the mother in

most months about $500 to $800 per month and went shopping with the mother regularly and paid for food and other incidentals. [ 24 ] The father had been employed in 2005 earning about $50,000 but lost his job in 2006 and only had some part-time employment until August 2007 when he was hired at his present employment at a salary of $50,000. He has received small annual raises. [ 25 ] Around this time the father was also having difficulties with renters at his Hamilton property.

He was accumulating debt and asked to borrow $45,000 from the mother as he was aware she had this amount remaining from the sale of their family home. According to the father, the mother agreed but only on condition that he agree to change the children’s last names from Harvie-Paliulis to Paliulis. The father testified that he agreed because he was desperate. He stated that the terms of the loan were generous that is, that he could pay it back whenever he could with no interest. [ 26 ] The father eventually declared bankruptcy in August 2009 and the bank repossessed his property in Hamilton.

He repaid the mother only $4,500 on the loan and gave her another $2,000 for the children but was never provided any proof that the children received his money. The mother confirmed that she received these funds for the children but she had to use them to pay her car loan. [ 27 ] The father rented a basement apartment that was within walking distance of his workplace and sold his car to reduce his living expenses. At this time he stopped paying for the mother’s car insurance or gas but continued to pay for her telephone and internet services.

He agreed to pay the mother $200 per month for 48 months for her car payments to commence in February 2011. He began to pay $1,200 per month to the mother as he understood this was the correct amount of child support based on his income. [ 28 ] The father included in his document brief copies of various cheques for amounts he paid for the children’s extracurricular expenses, dental care and the mother’s car payments up to November 2012.

The mother did not dispute that the father paid these amounts. [ 29 ] The father commenced this proceeding as according to him the mother began to restrict his time with A.U.P. and only wanted him to work on the basement suite at her home. It was the father’s position that the mother could rent out this basement apartment for added income but the mother testified that it was a small house and the children used it.

The mother did not dispute that the father had built a one bedroom basement apartment in her home. [ 30 ] The parties agreed that there was a flood in the mother’s home and the mother received $43,000 as an insurance settlement. However, the father states that all but $10,000 was to replace furniture and other belongings in the home that he had purchased but the mother kept. The mother testified that she kept the money in trust for the children but then used it to buy a farm.

Mother’s financial circumstances [ 31 ] The mother’s evidence and failure to provide full and complete financial disclosure made any accurate assessment of her current and future financial situation difficult to determine. [ 32 ] The mother was extremely reluctant to reveal any information about her inheritance. The mother testified that she received $92,000 and then changed it to a total of $88,000. She testified that it was in a joint account with her mother and then testified that the proceeds of the insurance settlement were also in the account.

She then changed her testimony again and stated that she received $99,000 in March 2009 and then a further $20,000 from her sister in 2010. She then changed her testimony again and stated that she only received a total of $88,000 being, $68,000 in 2009 and a further $20,000 in 2010. [ 33 ] After the first day of trial the mother was ordered to provide further disclosure. This was disclosure that had previously been ordered but not produced. It was not until the resumption of the trial that she provided a letter that at least confirmed the amount of the funds the mother received.

It was also only at the resumption of the trial that the mother produced a statement from her credit union that as of March 12, 2009 she had $99,300.53 in savings. The mother did not explain how she accumulated the extra $11,000. [ 34 ] When questioned about her the source of the interest of $832 on her 2009 Notices of Assessment, the mother initially testified that it was with respect to the children’s trust funds. But the mother did not provide any proof of the balances in the children’s trust funds at that time.

The mother only provided a letter dated November 29, 2012 indicated that as of that date the balances for each of P.M.H. and K.M.P. were approximately $1,900, the balance for A.U.P. was $1,760 and for J.V.H. only $25. The letter also states that as of March 1, 2011 the balance in the accounts was $25,048. [ 35 ] The mother then testified that she had put the insurance proceeds in the children’s trust funds but had to withdraw them. The mother then testified that the interest was with respect to her inheritance. [ 36 ] The mother’s Notices of Assessment for 2011 indicates interest income of $2,501.

The source of the interest was not fully explained. [ 37 ] The mother’s financial statement sworn May 18, 2011 lists her only assets as her home, a 2007 Montana van with an estimated value of $11,000 and her credit union bank account with a balance of $250 and no debts. [ 38 ] However, in response to a Request to Admit, the mother provided a letter from the Scotiabank indicating that the mother has had an account there since April 27, 2011.

There is no information as to the balance in that account as of the date of her sworn financial statement nor is it listed on the financial statement. [ 39 ] The mother had also been ordered to provide disclosure with respect to the balances of all bank accounts as of March 1, 2007 and March1, 2011. The mother did not provide a proper response and closed down all of the bank accounts except one. [ 40 ] The mother then filed a financial statement sworn November 30, 2012 in which she lists a farm as an asset worth $150,000 in addition to her home worth $216,000.

She valued her 2007 Montana van at only $800 and provided no explanation as to why its’ value

decreased so significantly. She lists a credit union debt of $69,000 and a MasterCard debt of $12,540. With respect to her income she lists annual investment income of $760 and pension income of $2,688 and spousal support. [ 41 ] The mother testified that she purchased the farm on August 2, 2012. She did not explain why the funds she used to purchase the farm were never shown on her previous financial statement. The mother testified that she purchased the farm for $170,000 and used $99,000 she had put in trust for the children. She testified that these monies came from the insurance settlement.

She then testified that she thought the children could use student loans for their education as this is how she paid for her education. The mother explained that she received a loan of $70,000 from her credit union for the balance that is secured against her home. She pays $400 per month. She testified that the farm has a house and barn on the property but they are in bad shape.

She is not able to obtain any income from the property at this time. [ 42 ] The mother testified that it is her intention to leave the house and farm to her children when she is deceased. [ 43 ] The mother also filed a financial statement sworn April 26, 2013 in which no income is listed. In this financial statement the value of her van was decreased to $300 and her loan from the credit union increased from $70,000 to $120,000 but the monthly payments remained at $400.00. The mother did not explain any of these discrepancies.

She also did not explain why she no longer included her pension income. [ 44 ] With respect to the mother’s source of income, she testified that she breeds dogs but only has a litter twice a year and receives about $300 for each pet from a litter of 4 to 6. This income was never disclosed on any financial statement. She did not explain how she managed to pay her expenses that she listed at about $34,000 per year. [ 45 ] The mother was also ordered to provide a full copy of her 2012 tax return. The mother only produced a copy of her 2012 Notices of Reassessment indicating an income of $3,893.

The mother explained the error was made as she had been assessed for an income of $17,105 because the child support and spousal support had been included in her income. The mother did not explain why she had not produced her tax return and did not explain the source of income that would be about $900 higher than the spousal support she would have received pursuant to the temporary order. The mother testified that she needs extensive dental work including a dental implant that will cost about $1,500 and caps for her teeth that will cost about $6,000 or $7,000 and she expects the father to pay.

The father testified that his extended medical and dental plan does not cover the mother as they are separated and he does not have the funds to pay for these expenses. [ 46 ] The mother is also seeking the father continue to assist her with her car payments based on a verbal arrangement they had. The father testified that he had agreed to assist the mother with her payments at $200 a month and did so from February 2011 up to November 2012 and agrees that he has not paid her since December 2012 as the mother kept asking him to pay for other expenses.

The father’s position is that this arrangement should not be part of this court proceeding. Father’s financial circumstances [ 47 ] The father’s income is as follows: 2010 - $56,548 2011 - $62,814 2012 - $60,325 [ 48 ] The father has no assets but he also has no debts. His financial statement indicates he lives very frugally.

Evidence with respect to child support issues [ 49 ] There is no dispute that A.U.P. resides with the mother, that she is in Grade 9 and she is entitled to child support in accordance with the Child Support Guidelines. [ 50 ] Although the mother initially claimed that P.M.H. was not living with the father full-time, she conceded at trial that P.M.H. resides with the father and agreed that she is not seeking any child support for him. [ 51 ] With respect to J.V.H., the only evidence provided is that he is in third year of a four year university program and lives away from home.

The mother testified that he has student loans and that he has a job but provided no details whatsoever regarding his expenses or income. [ 52 ] With respect to Kostras, the mother testified that he lives away from home and is attended Niagara College and that he also has student loans and is looking for some employment. [ 53 ] The father testified that Kostras did not do well at school last year and questioned whether he was permitted to return.

As a result of this concern, after the first day of the trial, the mother was ordered to provide a copy of Kostras’s report card for the previous year and proof that he had been accepted for the September 2013 school semester. The only evidence the mother submitted was a Continuing Education Confirmation of Enrollment indicating that for the semester from September to December 2013, Kostras is enrolled in two evening classes for two evenings a week. [ 54 ] With respect to the mother’s claim for extraordinary expenses, the mother seeks retroactive and ongoing expenses for the children’s attendance at summer camps.

The mother produced a statement from Kretinga, a summer camp, that from 2007 to 2012 the fees were $8,325. But the statement indicates that the mother worked as a dishwasher at the camp in lieu of paying camp fees. The father took the position that this was a family vacation and he should not have to pay any portion of this expense.

[ 55 ] The mother also produced a statement from Camp Romuva that from 2005 to 2012 the mother paid $10,800 for her children to attend camp. The father testified that he has over the years contributed to this expense and that he is agreeable to paying his share for A.U.P., who would be the only child now attending camp. [ 56 ] The mother is also seeking a contribution to the cost of other special expenses for both A.U.P. and K.M.P.. With respect to A.U.P. it is anticipated that she will attend summer camp, attend Lithuanian language school and there may be some ongoing orthodontic costs.

It was the father’s position that he wished to be consulted and have some input and if he could afford the expenses he would contribute. [ 57 ] With respect to K.M.P. the mother testified that he has expenses related to a Lithuanian dance competition. ANALYSIS 1.

Child Support [ 58 ] Section 31 (1) of the Family Law Act provides that every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education to the extent he or she is able. [ 59 ] Section 3 (1) of the Child Support Guidelines provide that the amount of child support is presumed to be the applicable table amount for a child under the age of majority. [ 60 ] Section 3 (2) of the Child Support Guidelines provides that with respect to a child over the age of majority child support shall be the table amount as if the child was under the age of majority or if that amount is inappropriate, an amount that the court considers appropriate having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child. [ 61 ] Applying these principles to the facts of this case, A.U.P. is entitled to child support in accordance the Child Support Guidelines. [ 62 ] There is no information about J.V.H.’ needs or means and therefore it is impossible to determine if the table amount of support is inappropriate.

In almost all cases, where a child attends university away from home and only spends the summer and other vacations time with a parent, some reduction of the table amount of child support is used and the child’s post-secondary expenses are treated as extraordinary expenses and shared by the parents with some contribution by the child. [ 63 ] Without any evidence, I find that the table amount of support should be payable to the mother for J.V.H. with the expectation that she will then be responsible for ensuring that a portion of this money is paid to him to meet his expenses when he is at school.

As J.V.H. is in third year of a four year program, it is anticipated that he will complete his university degree by the end of April 2015 at which time child support shall terminate. [ 64 ] With respect to Kostras there is no evidence that he is enrolled in a full-time program of education as the only evidence presented by the mother is that he is currently enrolled in only two evening classes in a continuing education program.

As the mother was ordered to provide a copy of his school report for last year and proof that he was attending school full-time this semester, I draw the inference that in fact, he did not pass last year as the father suspected. The mother is therefore not entitled to ongoing child support for him. If Kostras does return to school and is enrolled in a full-time program of education he may became entitled to child support but the mother would have to provide proof that he has been accepted, is attending and will have to provide ongoing proof of his eligibility for child support.

As Kostras is not a dependent child, the mother cannot claim the father contribute to any of his extraordinary expenses. [ 65 ] As the temporary order of December 5, 2012 provided that the father pay child support for three children, that order will be changed as of September 1, 2013 as it clear that at least as of this date that Kostras was not enrolled in a full-time program. [ 66 ] The mother commenced this application in March 2011 and generally would be entitled to child support commencing shortly after that date.

However, in this case the parties have made various informal support arrangements and neither party could be specific about what was paid or what services were performed by the father in lieu of or in addition to the monies he provided to the mother.

I therefore, find that it would be unfair to make any order that pre-dates the temporary support order. [ 67 ] With respect to the mother`s claim for retroactive special expenses, the mother admitted that the father paid some funds in the past for summer scout camps but there was no specific evidence provided or any reason given as to why, if the mother was unhappy with the informal arrangements that were made, she did not commence a court proceeding earlier. The mother only initiated a claim for support in response to the father`s application for access to A.U.P..

There is also no basis for the mother’s claim to be compensated for the cost of the family camp as the statement she provided indicates that there was no cost as she worked at the camp. [ 68 ] Over the years there have been ongoing disputes about what the father should pay for, what he has paid and bitter feelings about the sale of the matrimonial home and the mother receiving the bulk of the proceeds and all of the household possessions.

In order to avoid future disputes, it is necessary that there be a clearer understanding of what expenses qualify as special expenses that the father is required to contribute to in addition to his responsibility to pay child support. For example, the mother was seeking that the father contributes to the cost of clothing. [ 69 ] Based on the evidence, the cost of A.U.P. attending a couple of weeks at scout camp, after school language classes and any

costs for orthodontia not covered by a dental plan are appropriate extraordinary expenses. The father should be advised in writing of any other proposed expenses and he shall be required to pay his share of such expenses, only if he consents, with his consent not being unreasonably withheld. [ 70 ] The father testified that he had no difficulty ensuring that the children were entitled to receive the benefit of his extended medical and dental plan through his employment. 2.

Spousal support [ 71 ] It is the mother`s position that she is entitled to spousal support based on the years of the marriage, her role in the marriage and her need for support. She seeks a higher amount of support than awarded pursuant to the temporary order. [ 72 ] It is the father`s position that he should not be required to pay any spousal support and if possible, he requests that the court refund the amount of support he was required to pay pursuant to the temporary order.

The father submits that the mother received substantially more of the proceeds of the sale of the matrimonial home than her half share, all of the household furniture and belongings and the insurance proceeds for those household belongings. He submits that she could earn income by renting out the basement apartment that he built for her and that she is capable of earning an income. He submits that she has substantial assets whereas he has no assets.

He also submits that she has been extremely evasive and has not provided full and complete financial disclosure. [ 73 ] Subsection 33 (8) of the Family Law Act provides that the objectives of a spousal support order are as follows: Purposes of order for support of spouse

(8) An order for the support of a spouse should, (

a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse; (

b) share the economic burden of child support equitably; (

c) make fair provision to assist the spouse to become able to contribute to his or her own support; and (

d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home). [ 74 ] In Bracklow v. Bracklow [1] the Supreme Court of Canada established that there are three kinds of entitlement to spousal support: 1 .Compensatory: based on a spouse’s education, career development or earning potential being impeded as a result of the role in the relationship 2. Non-compensatory: based on need 3.

Contractual: based on an agreement between the parties. [ 75 ] In this case, the parties had a long term traditional marriage and the mother assumed all of the childcare responsibility and household duties. Although she has a college degree, she has not worked outside of the home for 23 years. She has been economically disadvantaged by her role in the marriage and also by the marriage break-up. [ 76 ] The mother was vague and evasive with respect to her financial circumstances with respect to her sources of income, her inheritance and the amount of funds in her various bank accounts.

It is clear that the mother is in a much better financial position than the father with respect to her assets but with respect to her day to day needs, I find that she still has proven that she has the need for some financial support from the father. [ 77 ] Therefore, I find the mother is entitled to spousal support based both on a compensatory and non-compensatory basis. The more difficult issue is the quantum of spousal support. [ 78 ] Although neither party, since they were self-represented, made submissions with respect to ability to work, the evidence presented requires such an analysis.

I assume the mother’s position was also that she is not able to work due to her physical and mental health problems. I also assume the father’s position is that the mother is capable of working or she is working and not being forthright about her earnings. [ 79 ] The mother provided a letter from her doctor outlining her medical conditions and stating that the mother could not work full-time but that opinion was prior to her recent hip operation and so a great deal of her physical limitations would now be alleviated.

Although it appears from the letter that the mother also suffers from some depression, she is taking medication to deal with that problem. [ 80 ] Section 19(1) of the Child Support Guidelines permits the court to impute such income as it considers appropriate in the circumstances, which include, (

a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse; [ 81 ] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. The test for imputing income applies equally in spousal support cases. [2] [ 82 ] The Ontario Court of Appeal in Drygala v. Pauli [3] set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed? 2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child of the marriage or reasonable health needs? 3. If not, what income is appropriately imputed? [ 83 ] In Drygala v. Pauli , supra, the court interpreted section 19(1)(

a) by stating that “intentionally” means a voluntary act and that a parent is intentionally under-employed if that parent choose to earn less than he or she is capable of earning. The court does not need to find a specific intent to evade child support obligations or bad faith. [ 84 ] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally under- employed or unemployed.

Once under-employment is established, the onus shifts to the payor to prove that his decision was reasonable. [ 85 ] If the payor is intentionally under-employed, the court must consider if this is by virtue of his or her reasonable educational needs, the needs of the child or reasonable health needs. [ 86 ] If a court finds a payor is intentionally under-employed or unemployed, a court cannot arbitrarily allocate an imputed income. There must be an evidentiary basis for the chosen income.

Factors such as age, education, experience, skills, health and availability of job opportunities must be considered. [ 87 ] In this case, the mother 57 years old and has been out of the workforce for a considerable amount of time. However, the mother impressed me as a very resourceful and creative woman. She breeds and sells dogs. She testified about her sewing abilities, her ability to salvage, recondition and repurpose items other people have discarded and she is a trained photographer. She has many skills that could earn her at least some minimal income.

Further, the creative skills she has are not particularly affected by the passage of time. I find that the mother’s physical and mental health issues are not significant enough to prevent her from obtaining some employment. [ 88 ] Based on the mother’s failure to comply with the disclosures orders that were made, despite being given several opportunities to do so, and her misleading financial statements, I find that she does have some undisclosed income. However, the mother finally did reveal that she had bought a farm and explained the source of most of the funds she had.

I do not find that she has any significant hidden assets. [ 89 ] I have considered that the mother received the majority of the assets upon the break-down of the marriage. I have also considered that the father did increase the value of the mother’s home, purchased after the separation, as a result of his labour in renovating the home.

But since there was no formal child or spousal support arrangement, I find that it would not be appropriate to consider these factors as relevant with respect to either the mother’s entitlement to support or the quantum of support. [ 90 ] I have also considered that the mother could earn some added income if she rented out the basement apartment of her home. Although she testified that the children like to use the space, except for A.U.P. none of the other children live at home and it is a source of potential revenue.

Further, the purchase of a farm by the mother that is a non-income producing asset appears not to have been the wisest use of her funds. She has now unnecessarily increased her living expenses as a result of her loan to finance the purchase of the farm. The mother could have invested in a property that could have produced some revenue for her. [ 91 ] I have prepared a support calculation which is attached as an appendix to this decision. I find that it is reasonable to impute an income of $15,000 to the mother.

Based on that income, the father’s 2012 income of $60,325 and his child support obligations for two children, according to the Spousal Support Advisory Guidelines he would be required to pay spousal support at a range of $294 to $624 per month. In this case, I find that it is appropriate to award the mother the low range amount of $294 per month as such an amount would still provide the mother with 51.8% of the net disposable income of the parties. I have also considered that the mother is in a much better financial position than the father with respect to her assets.

As these calculations are based on the father’s child support obligations as of September 1, 2013, that vary the temporary order This amount of spousal support will be effective as of that date as well. [ 92 ] I find that based on all of the factors outlined above, that spousal support should be indefinite although subject to change on the basis of a material change of circumstances and specifically when the father retires from his employment or when the mother begins to receive old age security payment. [ 93 ] The father agreed to assist the mother in paying for her car but that was during the time when he was not required to pay spousal support.

As a result of this order he will pay spousal support and therefore he is not obligated to also pay for the mother’s car payments. [ 94 ] The father is also not required to pay for the mother’s extensive dental expenses. The father’s undisputed evidence is that the terms of his extended medical and health plan do not permit him to provide benefits for a separated spouse. The mother was aware of her dental needs when she used her savings to purchase the farm, her van and a large television set. The mother had the funds available to pay for her dental expenses but chose to spend the money on other items.

There is no basis to find that the father should now be responsible for those expenses. 3 . Costs [ 95 ] The mother was previously represented by counsel in these proceedings. The mother seeks to be reimbursed for her legal expenses of $3,000.00 that includes all of the costs associated with the temporary motion and some costs for the preparation of the originating documents. The mother was already awarded costs of the temporary motion of $500 and cannot now claim further costs for that motion.

Further, I would not order any costs for the preparation of the originating documents as the parties settled the parenting issues and there is also a mixed result on this trial.

4. Restraining Order [ 96 ] The mother sought an order that the father not come near her home when A.U.P. turned 18 years of age. She alleged that she had suffered years of verbal and emotional abuse from the father. [ 97 ] There is absolutely no basis for such an order. Since the separation the parties have spent a considerable amount of time together. The mother did not dispute that she and the father discussed the financing for the children’s activities and support, went shopping together or that he was at her home for lengthy period of time renovating her home.

There is no evidence of any police involvement or even evidence about any fear the mother has about the father or any details of anything he has said or done that is in the least way threatening or concerning. Order [ 98 ] There will be an order as follows: 1. The applicant, Roy Robert Harvie shall pay child support to the respondent Julija Marie Paliulis, in accordance with the Child Support Guidelines and based on his 2012 income of $60,325.00 as follows: (

i) as of September 1, 2013 and up to and including April 1, 2015 for the two children, J.V.H. born […], 1990 and A.U.P. born […], 1998 in the amount of $ 897.00 per month; and (ii) as of May 1, 2015 for the one child A.U.P. born […], 1998 in the amount of $549.00 per month. 2. The applicant shall pay to the respondent his share of the

section 7 expenses for the child A.U.P. specifically for Camp Romuva scout camp, orthodontia expenses that are not covered by any dental plan and language school expenses. The respondent shall provide a copy of a receipt for these expenses and the applicant shall pay his share within 14 days of receiving the receipt 3. The respondent shall not incur any other expenses for A.U.P., for which she seeks a contribution from the applicant, without the prior written approval of the applicant; such consent not to be unreasonably withheld.

If the applicant agrees to the expenses, the respondent shall provide a copy of the receipt for these expenses and the applicant shall pay his share within 14 days of receiving the receipt. At present based on the applicant’s 2012 income of $60,325.00 and the respondent’s imputed income of $15,000.00, the applicant’s share is 75 %. 4. The applicant shall continue to maintain the children as beneficiaries on his extended medical and dental plan available through his employment as long as such coverage is permitted in accordance with the conditions of the plan. 5.

The applicant shall pay to the respondent spousal support of $294.00 per month as of September 1, 2013. This order can be varied upon the applicant’s retirement, the respondent receiving old age security benefits or if the respondent’s actual income exceeds $15,000.00 or otherwise in accordance with the law. 6. The parties shall provide to each other a copy of his/her income tax return with all attachments and a copy of his/her Notices of Assessment or Notices of Re-Assessment as of June 30, 2014 and each year thereafter as long as the applicant is required to pay child and/or spousal support.

Child support for the preceding year can be varied in accordance with the income of the applicant. 7. The applicant shall be given credit for any sums paid pursuant to the temporary court order of December 5, 2011. For clarity the temporary order of December 5, 2011 is no longer in effect. [ 99 ] Support Deduction Order to issue. [ 100 ] There will be no order of costs Released: December 18, 2013 Signed: “Justice Roselyn Zisman”