r v. Hassler, 2022 MBKB 230

Date: 20221201 Docket: FD 19-02-08735 (Brandon Centre) Indexed as: Hassler v. Hassler Cited as: 2022 MBKB 230 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: Natasha hassler, ) Appearances: ) petitioner, ) Rhea Majewski ) for the petitioner - and - ) ) mitchell warren hassler, ) Self-Represented respondent. ) for the respondent ) ) JUDGMENT DELIVERED: ) December 1, 2022 MENZIES J. [ 1 ] Natasha Hassler (the mother) and Mitchell Hassler (the father) began cohabitating in April of 2012. They married July 12, 2013.

There are four children of their marriage namely: A.G.H., born [...], 2013, L.W.H. , born [...], 2014, A.S.H., born [...], 2015 and L.B.H, born [...], 2017 . The parties separated on February 1, 2018. [ 2 ] Although the parties were able to reasonably manage their differences early on in their separation, they have found it more difficult to communicate as time has passed . A separation agreement was signed by the parties on September 19, 2018. The parties also entered in to a consent final order on July 14, 2020. [ 3 ] Both parties now ask the court to vary the final order and separation agreement.

TRIAL BY AFFIDAVIT [ 4 ] At a case conference, it was agreed that this matter would proceed by way of affidavit and cross-examination. The following materials were before the court.

(1) The separation agreement of September 19, 2018.

(2) The consent final order pronounced July 14, 2020.

(3) The affidavit of the father sworn August 14, 2021.

(4) The affidavit of the father sworn November 1, 2021.

(5) The affidavit of the mother sworn February 7, 2022.

(6) The affidavit of Kelsey Barkley sworn July 4, 2022.

(7) The affidavit of Kelsey Barkley, sworn July 8, 2022.

(8) The affidavit of Ainsley Brereton sworn July 29,2022.

(9) The affidavit of the father sworn July 29, 2022.

(10) The affidavit of Deanna Eckert sworn August 19, 2022.

(11) The affidavit of the mother sworn August 19, 2022.

(12) A transcript of the cross-examination of the father dated September 12, 2022.

(13) The father’s financial statement sworn August 14, 2021.

(14) The mother’s financial statement sworn January 21, 2022.

(15) The father’s financial statement sworn February 28, 2022.

(16) An Assessment Report prepared by Mark Hewins, a family evaluator, and dated July 4,2022. [5] When the hearing was convened, the parties anticipated that Mark Hewins (Hewins) would attend for cross-examination. Unfortunately, he was ill and unable to attend. Counsel for the mother wished to tender a further document from Hewins which wasobjected to by the father. In light of the unavailability of Hewins for cross-examination, the further document was not accepted intoevidence. [6] Both parties provided me with a written brief outlining their positions on the contested issues. Oral argument was alsopermitted.

As father is not legally trained, his presentation was not always in accordance with the rules concerning the presentation ofargument before the court. Counsel for mother objected to the father’s presentation of his argument. Although the objections of counselfor the mother were well founded, I allowed father to proceed as best he could. It is important that a party unacquainted with the courtprocess be allowed to present their position as best they can. I have only considered those portions of his argument that were presented inaccordance with the rules of the court.

CHANGE IN CIRCUMSTANCES [7] I am aware that both parties are asking the court to provide assistance in establishing a regime to regulate the issues that havearisen out of their separation. The evidence clearly establishes that the current arrangement is unsatisfactory to both parties. [8] However, before a court can vary a separation agreement or a final order (or as in this case both), the evidence must establish amaterial change in circumstances. I am satisfied that the evidence establishes such a change in circumstances. Upon separation, fatherworked on the oil fields.

Although this employment provided him with a substantial income, it also meant that he was away from homefor weeks at a time. Since the separation, father no longer works in the oil fields. Father now resides in Brandon where the mother andchildren reside. Due to this change in employment, the father is now available to provide care and control to his children on a moreregular and extensive basis. A further change is that his income has been drastically reduced since he has left the oil fields. I find thechanges in father’s line of work and level of income establish a material change in circumstances.

CARE AND CONTROL OF THE CHILDREN [9] When the parties met, father was working in the oil fields earning a substantial income. Mother was attending school with theultimate goal of obtaining her nursing degree. Shortly after beginning their cohabitation, mother became pregnant with their first child. Three more children would follow in the ensuing four years.

As a result, mother discontinued her education in order to stay at home tocare for the children. [10] In their separation agreement of September 19, 2018, the parties agreed that the custody of the children would be joint, but thatmother would be the primary care and control parent. Because father worked two weeks followed by a week off, he was granted careand control of the children from Thursday morning until Monday morning every third weekend. [11] In the final order of July 14, 2020, it was agreed that custody of the children would be joint with mother being the primary careand control parent.

Father’s periods of care and control were set out in great detail in the order. Generally speaking, father was grantedcare and control of the children every second weekend when he was not working. The order proved that father would have furtherperiods of care and control, as the parties could agree. [12] Father asks the court to vary the separation agreement and final order to give him equal time with the children.

Mother says sheshould remain the primary care and control parent and father should be limited to periods of care and control every second weekend. [13] The primary concern in determining care and control arrangements for children is ensuring the best interests of the children. However, as Karakatsanis J. said in Barendregt v. Grebliunas, 2022 SCC 22, (Barendregt) at para. 97: But, even with a wealth of jurisprudence as guidance, determining what is “best” for a child is never an easy task.

The inquiry is “highlycontextual” because of the “multitude of factors that may impinge on the child’s best interests”: Canadian Foundation for Children,Youth and the Law at para. 11; Gordon at para. 20. [14] In essence, father argues that the court should apply the “maximum contact principle” which emphasizes that children shouldhave as much contact with each parent as is consistent with their best interests. (Young v. Young, [SCC]). I agree, inprinciple, that in appropriate circumstances children should be able to spend as much time as possible with both parents.

However, thisprinciple may be disregarded in circumstances where the best interests of the children favours one parent over the other.

[ 15 ] As was noted by Hewins in his report, the parents’ relationship both before and after their separation is rife with conflict. Neither parent trusts the other to parent the children, nor are they able to communicate about the children in a meaningful way. [ 16 ] In her evidence, mother accuses father of being physically and sexually violent. Mother alleges father has physically assaulted her during the marriage, leaving marks on her body. Mother provided a picture of one such injury she says was inflicted by the father.

Mother further maintains father would force himself on her when she was not consenting to sexual activity. Mother’s evidence was that father would become angry and yell at her and the children in a very intimidating manner. Mother related an incident during which father was so angry he destroyed his own guitar by smashing if repeatedly on the ground outside of the house. Mother also claimed father broke and scattered glass in their home in a fit of anger. Mother further states that father once spanked the oldest child, A.G.H. so hard he left a mark on her skin.

Mother says father’s tirades often occurred in the presence of the children. Mother says the children are afraid of their father’s temper. [ 17 ] Father denies he was ever abusive to mother or the children. However, the transcript of his cross-examination casts doubts on his denials. Father admitted to spanking A.G.H. as alleged by the mother but explained his behaviour as discipline for the child. Father denies ever having yelled at his children but does not deny that he will speak to them in a loud voice. Father admits calling mother degrading names.

Father admits he has broken doors and glass in the home, as well as destroying his guitar as alleged. When asked about some of the specific allegations made by mother, father would not deny them. Rather, he simply said he could not recall. [ 18 ] Hewins noted that that while the children were seeing a counsellor in 2021, they expressed fear of their father’s behaviour and a reluctance to be in his care. [ 19 ] I have little hesitation in finding that mother’s allegations of abusive behaviour by the father are credible and reliable.

While I accept father’s statement that he is trying to change his behaviour to control his anger, he has not shown that he has taken concrete steps to do so. Hewins suggested that father take an anger management course through the John Howard Society. Father enrolled in the anger management course on one occasion but says he was unable to attend due to work commitments. As of the trial date, he has not enrolled in the course as recommended by Hewins.

Father does not seem to be understand the nature nor magnitude of the effect his anger has on his children. [ 20 ] The issue of domestic violence was addressed by Karakatsanis J. in Barendregt , supra: [143] The suggestion that domestic abuse of family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability in untenable.

Research indicated that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives: Department of Justice, Risk Factors for Children in Situations of Family Violence in the context of Separation and Divorce (February 2014), at p. 12. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it: S. Artz et al. “A comprehensive Review of the Literature on the Impact of Exposure to Intimate Partner Violence for Children and Youth” (2014), 5 I. J. C. Y. F.

S. 493, at p. 497. [146] The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration on the best interests analysis: s. 16 (3) (

j) and (4) . The Divorce Act broadly defines family violence in s. 2(1) to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child. [ 21 ] The parties have agreed in their separation agreement and the final order of the court that custody of the children should be joint between mother and father.

I believe that it is in the best interests of these children that custody of the children remain joint. [ 22 ] On the evidence before the court, it is evident that mother has been the primary caregiver to these children throughout their lifetime. She has proven herself capable of providing a safe nurturing home for all the children even in the face of the domestic violence she has been subjected to. Primary care and control of the children should remain with mother. [ 23 ] The issue before the court is the appropriate care and control provisions for father.

The evidence is not such that all contact between father and the children should be terminated. Father has much to offer these children if he can come to grips with his anger. [ 24 ] Hewins has recommended that father should exercise care and control of the children every second weekend from Friday after school to Monday morning returning them to school.

If father is working out of town for extended periods, then his weekend care and control may have to be on consecutive weekends. [ 25 ] Hewins recommended that these periods of care and control could be extended to allow father to maintain care and control until Tuesday mornings once he has completed a recognized anger management course. This proposal has merit. I would adopt the suggestion of Hewins as the

schedule for father’s care and control of the children. [ 26 ] Hewins also suggested that if the exchange of the children occurred on a day during which the children did not have school, the exchanges should be undertaken by third parties in a public place. It is unfortunate that this type of measure is necessary, but the parent’s relationship is such that I would adopt this recommendation until the parties can demonstrate an ability to communicate in an appropriate fashion. DECISION MAKING AUTHORITY [ 27 ] Mother has requested the court grant her final decision-making authority.

The evidence of the conflict between these parties is such that mother is unable to obtain father’s agreement to not only extracurricular activities but also medical and dental decisions. I do not like to grant orders that give one parent the ultimate control, as I find it is often abused by the parent who obtains the upper hand. However, the evidence in this case convinces me that father uses the decision-making process to exercise his control over the wife. This is an appropriate case for granting the mother ultimate decision-making authority and I would make such an order. However, it is only

appropriate that mother notify the father of any decisions that need to be made and seek out his input prior to coming to any conclusion. FATHER’S INCOME [28] Since his teenage years father has been employed in the oil production field. Although father takes the position that his skills andexperience are average, he has been able to generate substantial income and rise to the position of supervisor. In 2018, father’s incomewas $154,819.00. In 2019, father’s income was $135,914.00. In 2020, father’s employment income was reduced due to the effects ofCOVID-19 in the workplace, but he still managed to earn $80,000.

This figure was incorporated into the consent final order of July 14,2020 for the purposes of determining his support obligations for the children and to his spouse. The wife still accepts this figure as a fairstatement of his earnings for that year. [29] In the consent final order, father and mother agreed that father’s income would be set at $100,000.00 for 2021. Father argues hisincome is actually $42,920.00 as evidenced in his 2021 tax return. Father maintains this is the appropriate figure to be used indetermining his ongoing obligation for child and spousal support.

Mother disagrees and asks that income be imputed to the father. [30] The authority and procedure for imputing income was outlined by Abel J. in the decision of Ducharme v. Ducharme, 2019MBQB 72: [17] Section 19(1) of the Federal |Child Support Guidelines provides that the court may impute such amount of income to a spouse “asit considers appropriate in the circumstances,” which circumstances include nine defined situations. The defined situations are not anexhaustive list and the

section gives the court a significant amount of discretion in imputing income. [18] One of the defined situations includes intentional lunder-emplyment. Section 19(1)(

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

a) The spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe needs of the child of the marriage or any child under the age of majority or by the reasonable educational or health needs of thespouse;:… [19] A specific intent to evade child support obligations is not required nor is a finding of bad faith. The word “intentional” is used todifferentiate s. 19(1)(

a) from factors beyond the control of the parent, such as being laid off, and implies a deliberate course of conducton the part of the parent. The parent required to ay is intentionally under-employed if that parent chooses to earn less than he or she iscapable of earning (see Donovan v. Donovan, 2000 MBCA 80 , at para. 16). [20] Payor spouses are still entitled to make decisions in relation to their career path so long as those decisions are reasonable at the timethey are taken considering all the circumstances. The question is what is reasonable in the circumstances (see Donovan v.

Donovan atparas 18 and 19). [21] In determining whether to impute income on the basis of intentional under-employment or unemployment, the court ought to haveregard to what is reasonable under the circumstances. The age, education, experience, skills and health of the payor are factors to beconsidered, in addition to such matters as the availability of work, the freedom to relocate and other obligations (see Donovan v.Donovan at para. 19). [22] The following guidelines may be considered when determining whether to impute income: 1.

There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is“no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earnincome is irrelevant factor”. 2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable in thecircumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters asavailability of work, freedom to relocate and other obligations.

3. A Parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significantskills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at thelower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her childrensimply because the parent cannot obtain interesting of highly paid employment. 4. Persistence in unremunerative employment may entitle the court to impute income. 5.

A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive careeraspirations. 6. As a general rule, a parent cannot avoid child support obligations by a self-induced reductio of income. (see Donovan v. Donovan at para. 21) [23] As noted by Menzies J. at paragraph 25 of Haskey v. Haskey, 2015 MBQB 129, in determining whether income should be imputedto a parent, certain useful principles were outlined by Drs. Julien and Marilyn Payne (Child Support Guidelines in Canada, 2012 Edition,(Toronto, Irwin Law Inc., 2012)

Chapter 4: Determination of income; disclosure of income, p. 179): In Pretty v. Pretty, Forgeron J., of the Nova Scotia Supreme Court, distilled the following principles from the case law: (

a) The discretionary authority found in

section 19 must be exercised judicially, and in accordance with rules of reason and justice – notarbitrarily. A rational and solid evidentiary foundation, grounded in fairness and reasonableness, must be shown before a court canimpute income: Coadic v. Coadic, 2005 NSSC 291. (

b) The goal of imputation is to arrive at a fair estimate of income, not to arbitrarily punish the payor: Staples v. Callender, 2010 NSCA49. (

c) The burden of establishing that income should be imputed rests upon the party making the claim, however, the evidentiary burdenshifts if the payor asserts his/her income is less than in prior years, or if ill health, or the needs of a child are advanced to justify theunemployment or under-employment: MacDonald v. MacDonald, 2010 NSCA 34; MacGillivary v. Ross, 2008 NSSC 339. (

d) The court is not restricted to actual income earned, but rather, may look to income earning capacity, having regard to subjectivefactors such as the payor’s age, health, education, skills, employment history, and other relevant factors. The court should look to whatis reasonable and fair in the circumstances: Van Gool v. Van Gool, (BC CA), [1998] 113 B. C. A. C. 200; Hanson v.Hanson, (BC SC), [1999] B. C. J. No. 2532 (S. C.); Saunders-Roberts v. Roberts, 2002 NWTSC 11; Duffy v. Duffy,2009 NLCA 48. (

e) A party’s decision to remain in an unremunerative employment situation, may entitle a court to impute income where the party has agreater income earning capacity. A party cannot avoid support obligations by a self-induced reduction in income. A party cannot berelieved of support obligations to further an unrealistic or unproductive career: Marshall v. Marshall, 2008 NSSC 11; and Duffy v.

Duffy,supra. [24] The determination as to whether a court should impute income is a three-step process (see ., 2004 SKQB 280, at para 13): Firstly, the court must determine whether the parent is intentionally under-employed or unemployed. Secondly, if the parent isintentionally under-employed, the court must determine whether any of the exceptions set out in S. 19(1)(

a) apply. Those exceptionscover situations where the under-employment or unemployment is required by reason of (1) the needs of a child of the marriage; (2) theneeds of any child under the age of majority; (3) the reasonable educational needs of the payor; or (4) the reasonable health needs of thepayor. Finally, if a court determines a parent is intentionally under-employed or unemployed and that none of the exceptions set out in s.19(1)(

a) apply, then the court must decide whether to exercise its discretion and impute income.

[ 31 ] On the facts of these circumstances, the onus to show that income should not be imputed lies with the father. During the marriage, the husband earned substantial income working on the oil fields while the mother stayed at home to care for the children. This state of affairs continued even after the parties separated in 2018. Father’s income in 2018 was $154,819.00. His income in 2019 was $135,914.00. The consent final order of this court set father’s income for 2020 at $80,000.00 in recognition of the effect the COVID-19 pandemic would have on his earning capacity.

The order recognized father’s income earning capacity would increase in 2021 setting his income at $100,000.00. In contrast, father’s 2021 tax return shows he earned $42,920.00. [ 32 ] In considering the exceptions set out in section 19(1) (

a) of the Child Support Guidelines , O Reg 391/97 ( Guidelines ), there was no evidence presented which would justify a reduction of father’s income on the basis of his further education or future health. As for the needs of the children of the marriage, father argues it was necessary for him to leave the oil fields in order to be available to assume a 50/50 care and control regime with the mother.

I am sympathetic to any parent who wishes to exercise an expanded role in the lives of their children but the question that must be answered is whether or not this decision was reasonable in the circumstances. [ 33 ] Father is a healthy young man who has worked the majority of his life in the oil fields. As a result, he has acquired the skills which enable him to earn a substantial income.

Maintaining his job in the oil filed would not take him away from his children any more than it did during the marriage. [ 34 ] It is also noteworthy that in the consent final order presented to the court, the following provision was included: [Father] shall make every effort to find and maintain employment at the highest rate of pay possible, commensurate with his parenting responsibilities which may expand in the future, [father]’s skills and experience. [ 35 ] As for his desire to share care and control of the children on an equal basis with the mother, the evidence shows that this is an unrealistic expectation at this time.

Before that can happen, father needs to work on his anger issues and rebuild the trust of not only the mother but the children of the marriage. This will take not only time but a concerted effort on the part of the father. [ 36 ] As a result, I have little hesitation in concluding that father is intentionally under-employed and his income should be imputed. [ 37 ] As for the year 2021, the parties agreed that his income should be set at $100,00.00 in the consent final order. A court should not lightly disrupt an agreement of the parties, which was reasonably entered into with the advice of counsel.

Therefore, father’s income will be set at $100,000.00 for the year 2021. [ 38 ] Mother asks that father’s income be set at $120,000.00 for 2022 and ongoing. There is ample evidence to establish father is capable of earning this level of income, if not higher. I would accede to mother’s request. Father’s income for 2022 and for the foreseeable future will be set at $120.000.00. MOTHER’S INCOME [ 39 ] Mother’s income for 2018 was $3,574.00. In 2019, mother’s income was $10,009.00. In 2020, mother received CERB payments which increased her income to $20,316.00.

When mother met father, she was studying to become a nurse. When the children were born in quick succession, she put aside her aspirations to become a nurse to care for the children. Now that the children are older, the mother has decided to return to school to become a nurse. I find this to be a reasonable course of conduct. Mother clearly needs to establish herself in a career to end her financial dependence on father. Nursing is a good choice. While it may take her some time to achieve her goal, it is a realistic endeavour consistent with her plans when the parties’ relationship began.

Recognizing that CERB payments are no longer part of mother’s income, I would set her income at $10,000.00. CHILD SUPPORT [ 40 ] Having imputed father’s income to be $120,000.00, his monthly child support obligation for four children is $2,534.00. This amount became payable as of January 1, 2022. [ 41 ] As for

section 7 expenses, mother requests those expenses be shared on a basis of 30% payable by mother and 70% payable by father. Mother presents a number of expenses to which father has not contributed. The expenses include $654.81 for optometry; $1,200.00 for speech therapy for one of the children; $1,034.33 for the children’s regular dental visits; and $2,608.20 for specific dental surgery for one of the children. It was also agreed by the parents that one of the children would attend pre-school which came at a cost of $717.60. These expenses total $4,569.60. Father’s share of those expenses equals $4,354.32.

Father is hereby ordered to reimburse mother in that amount. [ 42 ] Father will have an ongoing obligation to reimburse mother for all

section 7 expenses at the rate of 70%. SPOUSAL SUPPORT [ 43 ] In the consent final order, father agreed to pay mother monthly spousal support in the amount of $778.00. At the time he agreed to this amount, his expectation of his income was less than the $120,000.00 income this court has imputed to him. Mother only wishes for this amount to be reaffirmed at this time. Father’s application to vary the spousal support payable to mother is therefore dismissed.

ARREARS [ 44 ] Having now determined father’s income, child support and spousal support obligations, I would ask that counsel for mother prepare a statement of arrears to date, so that the arrears may be incorporated into the order. Those figures should be sent to father for his review. If an amount cannot be agreed, a further hearing may be set down. I will expect counsel to provide me with their calculations prior to the hearing. COSTS

[ 45 ] Mother has been largely successful with regard to the issues before the court. Costs should follow success. I am concerned that the amount of the arrears and the ongoing obligation for child and spousal support may make any final order against the husband punitive and unrealistic. In any event, if costs remain an issue, I would be prepared to hear presentations on that issue. _________________________ J.