2023 MBKB 72, 2023 MBKB 72

Date: 20230421 Dockets: FD 18-03-01260 (Brandon Centre) Indexed as: R.M.S. v. B.D.W. Cited as: 2023 MBKB 72 COURT OF KING'S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: R.M.S. ) petitioner, ) Gary Stern ) for the petitioner - and - ) ) ) B.D.W. ) respondent. ) Daniel Marc Minuk ) for the respondent ) ) Judgment Delivered: ) April 21, 2023 LEVEN J. S UMMARY [ 1 ] This was a dispute under the Family Maintenance Act , C.C.S.M. c F20 (“ FMA ”) about care and control (parenting time), child support, and child support arrears.

The petitioner (the “Father”) now has parenting time every second weekend, but now wants parenting time during all weekdays. The Father had a high income and he signed a voluntary child support agreement. He fell into arrears. He injured his back in 2019, and he has been on social assistance ever since. He has never even investigated retraining. The respondent (the “Mother”) wants his income imputed at $54,000 per year, and wants him to pay all arrears. [ 2 ] For reasons explained below, in respect to parenting time, the status quo is in the best interests of the children.

The Father’s parenting time proposal is, to be generous, half-baked. Although the Father suffered a genuine back injury, refusing even to investigate retraining for over three years is very unreasonable. It would not serve the best interests of the children if I simply scolded the Father for being unreasonable, with no concrete repercussions. Therefore, effective May 1, 2023, I will impute income based on 35 hours per week and $15.30 per hour (which will very soon be Manitoba’s minimum wage). The Father will be liable for any arrears up to the date of his back injury.

F ACTS [ 3 ] This is not a comprehensive recitation of all the evidence and argument; it is a concise

summary of certain important matters. [ 4 ] The Petition was filed on April 7, 2020. The Answer was filed on or about July 24, 2020. The trial took place from January 16 to January 18, 2023, with written argument filed after the trial. [ 5 ] The parties lived “common law” in Portage la Prairie, Manitoba (“Portage”) for 11 years (starting in 2006), and had three children, born in 2007, 2010 and 2015. The Father was a heavy equipment operator, and earned annual employment income of about $113,000 in 2018.

The Father’s job took him away from home for weeks on end, so the Mother spent much more time with the children. There is no dispute that the Father loved (and loves) his children and has always showed them affection. [ 6 ] The parties separated in September 2017. They quickly signed a “Private Support Agreement”, agreeing that the Father would

pay the Mother $1,000 per month plus $200 per month towards daycare expenses for the youngest child. They felt these were fair amounts. He made some payments. By February 2018, the Father had fallen into arrears, so the Mother registered the agreement with the Maintenance Enforcement Program (“MEP”). There are still arrears today. [ 7 ] The Father had a major back injury on or about October 22, 2019, and was hospitalized. He had a CT scan; he met with a physiotherapist in the hospital, and he was given various pain medications. Unhappy with his hospital roommate, he discharged himself from the hospital.

Hospital records showed he discharged himself after two days. He testified that he discharged himself after six days. [ 8 ] He has experienced sporadic back pain ever since. He tried spinal injections. He said they provided short-term pain relief. He saw his family doctor from time to time. He never saw a physiotherapist again, but he testified that he does physiotherapy exercises daily. He did not list the exercises. [ 9 ] According to the Father, because of sporadic and unpredictable back pain, the Father has never worked since October 2019. He has collected social assistance.

His child support arrears have increased. He has never collected Canada Pension Plan disability benefits. The injury did not occur at work, so he is not eligible for Workers Compensation benefits. He has never taken retraining. T HE F AMILY D OCTOR [ 10 ] The Father’s family doctor (the “family doctor”) testified. He cared for the Father and for the three children even before 2019. He saw the Father in the hospital when the Father hurt his back in October 2019. He has since seen the Father a number of times for his back, and for depression. He did not list specific dates.

Several of his “to whom it may concern” letters were filed as exhibits. Although not completely sure, he thought the intended audience for the letters was social assistance. [ 11 ] While hospitalized in 2019, the Father had a CT scan which showed a herniated disk. He saw a physiotherapist in the hospital but the family doctor never talked to the physiotherapist. About a year later, the Father had an MRI scan, which was consistent with the CT scan.

In 2020, the Father was referred to a specialist in Winnipeg, Manitoba for spinal injections. [ 12 ] The family doctor sees the Father whenever the Father makes an appointment. They do not have a standing monthly or quarterly or annual appointment. The family doctor is not sure when the last time was that the Father took a range-of-motion test. Essentially, the Father tells the family doctor about his back pain, and the doctor accepts his account. At the trial, the family doctor testified that the pattern of back pain reported by the Father is not unusual.

Sometimes back pain persists even after scans appear to show “normal” results. Sometimes back pain is sporadic and unpredictable. [ 13 ] The family doctor was asked if the Father could do the tasks required for work as a cashier, waiter, phone center employee, and retail salesperson. He replied “possibly” to all these jobs. [ 14 ] The family doctor last saw the Father about three months before the trial. [ 15 ] He family doctor’s name appears on the October 2019 hospital discharge

summary (“the

Summary”). The

Summary was dictated by a hospital resident. It said that the Father was admitted to the hospital on October 23, 2019. It said he was discharged on October 25, 2019. It said that a CT scan showed a herniated disk. The Father was admitted and given various pain medications. He was given physiotherapy and he told the nurses that it helped somewhat. He discharged himself on the second night. He phoned the hospital from home to say that he was safe.

He left against medical advice. (As noted, the Father testified that he discharged himself after six days, rather than two days.) [ 16 ] Counsel filed a March 10, 2022 letter from the family doctor to the Father’s counsel. The letter said that the Father had an MRI scan that confirmed the herniated disk. The Father received an “epidural steroid injection” from a physical medicine rehab specialist. Since then, the Father has had some “persistent” symptoms, which showed “some improvement”. He has had “exacerbations of his back pain that can be disabling at four days at a time”.

The family doctor does not anticipate that he can be a heavy equipment operator again. He has also had some depression. The letter concludes: “I find him to be motivated for future employment, but it will be in a different field than heavy equipment or manual labour due to his present physical limitations.” O THER F ACTS [ 17 ] In June 2020, the Mother and the children moved to Notre Dame de Lourdes, Manitoba (“Notre Dame”). The Mother married, and she now works several jobs in order to support her children. One is a weekday job that ends at 2:30 p.m. on weekdays. Two are casual jobs in the evenings.

As they are casual jobs, the Mother can refuse specific evenings. On average, she works about two evenings a week. She also pays for all of the kids’ extracurricular expenses (e.g. hockey). By mutual agreement, Father has had parenting time with the children every second weekend, although he has missed a few weekends because he has lacked gas money and for other reasons. By agreement, they meet approximately halfway between Portage and Notre Dame for exchanges. [ 18 ] In simple terms, the Father now wants Monday to Friday parenting time, with Mother getting weekends.

The Father says that, between increased social assistance and the Child Tax Benefit, he will be able to provide for his children. He did not specify any specific dollar figures. He feels that he would be able to get a suitable Manitoba Housing unit in Portage. He has not contacted Manitoba Housing about precise details. He has not mentioned this concept to any of his children. The oldest is now 16. [ 19 ] The Mother argues that the children are happy, doing well in school, and thriving under the status quo, and there should be no radical changes to their lives.

She would be delighted to give the Father more parenting time during non-school days. She argues that, although he cannot do his old job because of back pain, the Father has made no efforts at all to even investigate retraining options, during the three years since his back injury. Therefore, the Mother argues that an income of $54,000 should be imputed to the Father. This would result in child support of $1,000 per month. He should also be liable for all arrears. [ 20 ] The Mother testified that the Father no longer has any contact with his own parents.

She testified that she has regular, positive contact with them and that she ensures that her three children have regular, positive contact with them. The Father did not mention this.

F ATHER’S R OLE B EFORE S EPARATION [ 21 ] No one disputed that the Father loved (and loves) his children and showed them his love openly. No one disputed that his job took him away from home for weeks on end. No one disputed that he helped with the kids during those weeks when he was home, and that he often talked to the children by phone when he was away. The Mother and the Father disagreed about some details of the tasks that the Father did while he was at home. C OCAINE [ 22 ] The Mother alleged that the Father consumed cocaine regularly, and that he admitted this to her.

She said she put up with it because she hoped he would change. When he operated an off-road vehicle with a child on his lap, while under the influence of cocaine, the Mother decided to leave him. The Father denied ever consuming cocaine. He said he was subject to frequent drug tests at work, and he would have been fired if he ever tested positive for cocaine. F ATHER’S C URRENT R ESIDENCE [ 23 ] The Father rents an apartment in Portage and calls it his home.

Presumably, he tells social assistance that it is his home. [ 24 ] The Father has a new girlfriend (“J”) who has a house in Oakville, Manitoba (“Oakville”) (not far from Portage). The Father admits that he visits J at her house. J works full-time. The Father and J have a young daughter (“M”), who will be two years old in July 2023. The Father testified that he looks after M every Monday to Friday from 8:00 a.m. to 4:00 p.m. [ 25 ] The Father and J signed a “Private Support/ Care Agreement” on April 1, 2022. This agreement said that the Father and J are the parents of M.

It said that child support is “not applicable”. It said that J has primary care and control and that M resides with J. The agreement said that the Father has care and control Monday to Friday from 8:00 a.m. to 4:00 p.m. [ 26 ] It said that the Father will have additional periods of care and control, as agreed upon by both parties. The Father was not questioned about, and did not volunteer, the reason that he and J signed this document. [ 27 ] The Father testified that, when he gets his kids every second weekend, they all sleep over at J’s house.

Actually, the oldest child (who is now 16) sleeps over at his best friend’s house, which is just a few doors away from J’s house. J has two kids from a previous relationship, and all the kids get along well together. There are many toys at J’s house.

The Father’s kids get along well with J. (The Mother knew J before the separation, and the Mother had only positive things to say about J). [ 28 ] There was some evidence that the Father’s children were bused (by school bus) to J’s house in Oakville, rather than to the Father’s apartment in Portage. [ 29 ] The Mother expressed her opinion that the Father actually lives with J in Oakville. M OTHER’S M OVE TO N OTRE D AME DE L OURDES [ 30 ] The Mother filed copies of text message between the parties. In 2020, she advised the Father that she and the kids planned to move to Notre Dame.

The Father replied with a thumbs-up emoji. No one filed any texts or emails in which the Father indicated any concerns at all about the move to Notre Dame. F ATHER’S A NGRY T EXTS [ 31 ] The Mother filed copies of an angry text message, dated June 13, 2020, from the Father to her: Tell ya what [Mother’s name], I will give you the chance to give me the kids 50/50 custody well do the 14/7 rotation I pay dally daycare bill and half of sports and I claim [youngest child] on income tax and you keep the child tax you get from government that covers any other expense dental etc for kids!

Or…I take a job with a farmer making maybe 18$ hr if I’m lucky and seasonal work and will draw e.i every winter! I get the child support payments recalculated according to my income which will drastically drop that payment, we go to court for 50/50 the judge will factor what I make a year verse what you make in a year and have to balance out both of our incomes to the same amount for the 50/50 custody therefore you will be paying me child support! And at the end of the day I will be no worse off that I am now.

This is my final offer and last time I’m even going to try to reason with you or work this out ourselves before court! [errors in original] [ 32 ] The Mother testified that, on one occasion, she observed the Father smoking in a vehicle with the kids present. Concerned about the kids’ health, the Mother texted the Father that he should not smoke in vehicles with the kids in them. The Father responded by calling the Mother a “whore”. T HE F ATHER H ELPED H IS U NCLE [ 33 ] The Mother had a suspicion that the Father was doing some sort of manual labor for cash under the table.

She could not afford to hire a private investigator to follow the Father around. [ 34 ] However, on March 28, 2022 (spring break), the Mother and her friend thought they would drive around and see if they could

spot the Father doing any sort of outdoor work visible from a public roadway. They saw him and his uncle (“the Uncle”) doing some work together. The Uncle was installing siding on a building. The Father was assisting in some ways. Among other things, he carried a ladder a short distance, carried some small tools, and drove a skid steer a short distance. The Mother and her friend watched from about 9:00 a.m. to about 1:00 p.m., and took some photos. T HE P HOTOS AND THE P RIVACY A CT [ 35 ] At the trial, counsel argued about the admissibility of the photos.

The Father’s lawyer relied on The Privacy Act , C.C.S.M. c. P125 . Violation of Privacy 2(1) A person who substantially, unreasonably, and without claim of right, violates the privacy of another person, commits a tort against that other person. Examples of violation of privacy 3 Without limiting the generality of

section 2, privacy of a person may be violated (

a) by surveillance , auditory or visual, whether or not accomplished by trespass, of that person…by any means including…watching, spying, besetting or following…” [underlining added] [ 36 ]

Section 5 sets out defences to the tort: 5 In an action for violation of privacy of a person, it is a defence for the defendant to show … (

c) that the act…was reasonable, necessary for, and incidental to, the exercise or protection of a lawful right of defence of… property or other interest of the defendant or any other person…for whose benefit the defendant committed the act… [underlining added] [ 37 ] Finally,

section 7 explains: “ No evidence obtained by virtue or in consequence of a violation of privacy in respect of which an action may be brought under this Act is admissible in any civil proceedings.” [underlining added] [ 38 ] Father’s counsel argued that the photos taken of the Father without his knowledge or consent were inadmissible by virtue of

section 7 of the Privacy Act. [ 39 ] Mother’s counsel noted that he had not been given notice that an argument under the Privacy Act would be made. In any event, he argued that his client had a valid defence under

section 5 of the Privacy Act , and the photos should be admissible. [ 40 ] I ruled that the photos were admissible. The litigation was partly about child support and child support arrears. Money is a form of “property”. In taking the photos, the Mother was gathering evidence to support her legal arguments about child support and arrears. She was acting in reasonable defence of her property “or other interest”.

In the alternative, under the principle that child support payments advance the interests of the relevant children, the Mother was acting for the benefit of the children, in taking the photos. [ 41 ] Furthermore, it is not even clear that the photos, in context, meet the requirements of sections 2(1) and

Section 3 does not say that all surveillance without consent automatically constitutes a tort. Rather, it “may” constitute a tort. Under section 2(1), a person who “substantially, unreasonably, and without claim of right” violates privacy, commits a tort. In other words, if the violation is not substantial (e.g. it is of a trivial nature), there is no tort. If the violation is not unreasonable, there is no tort. If the violation is with claim of right, there is no tort. [ 42 ] I would focus on reasonability. Under the circumstances, the Mother’s violation of the Father’s privacy was reasonable.

It occurred on one day only and it revealed evidence that might arguably support the Mother’s child support arguments. Therefore, there was no tort to begin with. [ 43 ] I hastened to add that counsel were free (and encouraged) to make arguments about what weight to assign the photos, in their closing arguments. [ 44 ] The Father testified that he never works for cash under the table, either for his uncle or for anyone else. He never does physical tasks beyond his current abilities, or when his back is flaring up.

On the day that the photos were taken, he was voluntarily helping his uncle by doing light tasks that did not aggravate his back. F INANCIAL P ROBLEMS [ 45 ] I mentioned above that the Father has been on social assistance since his back injury. He testified that social assistance overpaid

him at one time (social assistance paid him as if he had shared custody of his three children). When social assistance discovered the error, it required the Father to pay back a significant sum. At the trial, the Father did not accept any personal responsibility for the error. The Father testified that he now owes social assistance about $17,000. [ 46 ] As noted above, the Father has child support arrears. The MEP has acted on those arrears from time to time by suspending the Father’s driving licence.

There was no evidence about the precise timing and duration of these suspensions. [ 47 ] The Father testified that he declared bankruptcy (apparently without the benefit of legal counsel). He said that it turned out to be a waste of time because it did not discharge his debts to MEP and to social assistance. [ 48 ] He also blamed his poor financial situation for his inability to access certain health care options. For example, he testified that he would be willing to try a chiropractor, but social assistance does not pay for this sort of treatment.

He also said that Manitoba Health paid for him to see a physiotherapist while he was in the hospital in 2019, but he would have to pay cash to see a physiotherapist outside of hospital. T HE FMA [ 49 ] Relevant FMA sections include: Best interests test applies 2(1) In all proceedings under this Act the best interests of the child shall be the paramount consideration of the court. Best interests of child 39(2.1) In determining a child's best interests in an application under subsection (2) or

section 46, the court shall consider all matters relevant to the best interests of the child including, but not limited to, the following: (

a) the nature, quality and stability of the relationship between (

i) the child and each parent seeking custody or access, and (ii) the child and other significant individuals in the child's life; (

b) the child's physical, psychological, educational, social, moral and emotional needs, including the need for stability , taking into consideration the child's age and stage of development; (

c) the impact on the child of any domestic violence, including consideration of (

i) the safety of the child and other family and household members who care for the child, (ii) the child's general well-being, (iii) whether the parent who perpetrated the domestic violence is able to care for and meet the needs of the child, and (iv) the appropriateness of making an order that would require the parents to co-operate on issues affecting the child; (

d) the ability and willingness of each parent to communicate and co-operate on issues affecting the child; (

e) the willingness of each parent seeking custody to facilitate the relationship between the child and the other parent;

(

f) any special needs of the child, including special needs for care, treatment or education; (

g) the proposed plan of care for the child, including the capacity of the parent seeking custody or access to provide a safe home, adequate food, clothing and medical care for the child; (

h) the history of the care arrangements for the child; (

i) the effect on the child of any disruption of the child's sense of continuity ; (

j) the views and preferences of the child, where the court considers it appropriate to ascertain them; (

k) the child's cultural, linguistic, religious and spiritual upbringing and heritage. [underlining added] T HE G UIDELINES [ 50 ] Relevant sections of the Child Support Guidelines Regulation , Man. Reg. 58/98 (the “ Guidelines ”), include: Objectives 1 The objectives of these guidelines are (

a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both parents ; (

b) to reduce conflict and tension between parents by making the calculation of child support orders more objective; (

c) to improve the efficiency of the legal process by giving courts and parents guidance in setting the levels of child support orders and encouraging settlement; and (

d) to ensure consistent treatment of parents and children who are in similar circumstances. Imputing Income 18(1) The court may impute such amount of income to a parent as it considers appropriate in the circumstances , which circumstances include the following: (

a) the parent is intentionally under-employed or unemployed , other than where the under-employment or unemployment is required by the needs of a child or by the reasonable educational or health needs of the parent; [underlining added] T HE K ING’S B ENCH R ULES

[51] Relevant sections of the Court of King’s Bench Rules, Man. Reg. 553/88 (the “Rules”) include: 57.01(1) In exercising its discretion under

section 96 of The Court of King's Bench Act, to award costs, the court may consider, inaddition to the result in the proceeding and any offer to settle made in writing, (

a) the amount claimed and the amount recovered in the proceeding; (

b) the complexity of the proceeding; (

c) the importance of the issues; (

d) the conduct of any party which tended to shorten or lengthen unnecessarily the duration of the proceeding; (d.1) the conduct of any party which unnecessarily complicated the proceeding; (d.2) the failure of a party to meet a filing deadline; (

e) whether any step in the proceeding was improper, vexatious or unnecessary; (

f) a party's denial or refusal to admit anything which should have been admitted; (f.1) the relative success of a party on one or more issues in a proceeding in relation to all matters put in issue by that party; (

g) whether it is appropriate to award any costs or more than one set of costs where there are several parties with identical interests whoare unnecessarily represented by more than one counsel; and (

h) any other matter relevant to the question of costs. CASE LAW [52] In Donovan v Donovan, 2000 MBCA 80 (“Donovan”), the court dealt with the issue of intentional underemployment orunemployment. At paragraph 21(6), the court pointed out that, “… as a general rule, a parent cannot avoid child support obligations by aself-induced reduction of income”. [53] In Donovan, at paragraph 18, the court observed: A decision as to whether a person is capable of earning more income than they are presently earning depends on the context.

Fundamentally, the court will impute income in the same fashion that it did before the introduction of the Federal Child SupportGuidelines. Payor spouses are still entitled to make decisions in relation to their career path so long as those decisions are reasonable atthe time they are taken considering all the circumstances. [54] In Donovan, at paragraph 21, the court sets out various guidelines for imputing income.

One guideline is: A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, oremployment in which the necessary skills can be learned on the job.

While this may mean that job availability will be at the lower end ofthe wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply becausethe parent cannot obtain interesting or highly paid employment. [55] In Donovan, at paragraph 25, the court added: As indicated earlier, the law does not require a finding of bad faith or a finding that there was an intention to evade one’s child supportresponsibilities.

Rather, the inquiry is focused on the issue of reasonableness. [56] In Donovan, at paragraph 34, the court concluded: Courts have considered a variety of factors in an attempt to determine an individual’s capacity to earn. They have considered factorssuch as job history, age, education, skills, health, standard of living when the parties were married and available job opportunities. … [57] In Donovan, after separation, one spouse unilaterally decided to pursue a new career as a screenwriter.

At the time of the trial,he had not yet earned a penny from the new career and had no concrete prospects for ever earning any money from the new career. Notsurprisingly, the court concluded that the new career was unreasonable. The court imputed an income to the screenwriter based on hisprevious experience and credentials. [58] Peters v. Atchooay, 2002 ABCA 347 was also about imputing income. At paragraph 81, the court observed that, “… itis generally assumed that a child will benefit from more income and not less.” [59] In Horbas v.

Horbas, 2020 MBCA 34 , at paragraph 24, the court referred to Donovan as the leading Manitoba case onimputing income. At paragraph 32, the court pointed out: “Of course, a parent’s desire to spend more time with his or her children issomething to be encouraged and valued, but that has to be balanced against the parent’s obligation to provide financial support.” At

paragraph 34, the court observed that, “once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case for imputation of income (established here by the sheer drop in income), the onus shifts to the individual seeking to defend the income position he or she is taking…” [ 60 ] The parties cited other cases, and I have carefully considered all of them. F INDINGS [ 61 ] It is not necessary for me to determine whether the Father discharged himself from hospital against medical advice after two days or after six days.

Although this is a minor point, even if six days had gone by, a reasonable person would have spoken to a hospital doctor or nurse before discharging himself. [ 62 ] It is not necessary for me to decide whether or not the Father consumed cocaine. Even if I give the Father the benefit of the doubt and accept his word that he never used cocaine, I reject his parenting plan for reasons described below. [ 63 ] It is not necessary for me to determine whether the Father is actually living with J.

The social assistance authorities will certainly be interested in this matter but, even if I take Father at his word and conclude that he simply visits J frequently, I can reach the conclusions described below. Care and Control (Parenting Time) [ 64 ] There is no dispute that the children are happy, healthy and well-adjusted today. There was no evidence that their current schools are lacking in any way, and no evidence that they are unable to access any specific extracurricular activities because they live in Notre Dame as opposed to Portage.

There is no evidence of any specific problems in their lives today. [ 65 ] Although this is a minor point, the only evidence about their current relationship with the Father’s parents is that it is a positive relationship, encouraged by the Mother. The only evidence is that the Father does not currently have contact with his parents. Therefore, the status quo is more likely to nourish the children’s good relationship with their grandparents, than the Father’s parenting plan. [ 66 ] The Father’s parenting plan could generously be called half-baked. Firstly, he knows very little about the children’s lives today.

Both parents were asked about the children’s friends, teachers and daily lives. The Mother knew virtually every detail. For some reason, the Father knew very little. [ 67 ] The Father’s parenting plan would represent a large change to the children’s lives. It is true that they lived in Portage until 2020. However, they moved to Notre Dame about three years ago. The youngest child is only eight. At first blush, a move from Notre Dame to Portage (with a change of school) would be a particularly radical change for her.

Yet the Father admitted that he has never even discussed the possibility of a move with any of the children. [ 68 ] The oldest is 16. He is certainly mature enough to have an intelligent discussion about how he might feel about moving to Portage and changing schools. It would be utterly unfair and unreasonable to impose any such change upon him without at least asking his opinion. [ 69 ] The Father said he would find Manitoba Housing or rental housing in Portage. Yet he filed no documents to support this notion. Does Manitoba Housing have any vacant four-bedroom units in Portage?

If it has a waiting list, how long is that list? We do not know. The Father filed no documents and called no witnesses. [ 70 ] The Father said he would get larger social assistance benefits and the Child Tax Credits. I can take judicial notice of the fact that social assistance does take into account the number of children in the household. If the Father had filed (or even verbally explained) a draft budget for his proposal, I would have taken it seriously.

However, all that the Father was able to offer was, to be blunt, some wishful thinking. [ 71 ] I note that the Father’s signed financial statement is attached to his Petition (as it should be). It was signed February 4, 2020. I note that

Part 2 (Monthly Expenses) lists no rent (or any housing expenses) at all. I do not know if this was raised at triage, but it is certainly mysterious. If the Father was living with J rent-free, that might explain it. If that was the case, and the Father was collecting social assistance, the social assistance authorities would certainly be interested. I cannot say. There was no evidence at trial. [ 72 ] In any event, neither party disputed that the Mother is very flexible about parenting time. She is willing to give the Father more parenting time than he now has on non-school days.

He will have to find a way to deal with his gas-money problems, but that is not the Mother’s responsibility. [ 73 ] The Father’s parenting plan is not even close to being reasonable. The appropriate parenting time arrangement is the status quo, with generous parenting time for the Father on Christmas, spring and summer breaks.

Given Mother’s demonstrated flexibility, I would specify that the Father will have every second weekend (and holiday Fridays and Mondays adjacent to his weekends), and half of the days on Christmas, spring and summer breaks, with timing as may be agreed upon by the parties, and with any other days and adjustments as may be agreed upon by the parties.

If the parties are unable to agree upon timing, they will use a method of random chance (e.g. a coin toss) to determine who gets the first half of a break and who gets the second half of a break. [ 74 ] The Father may speak to the children by phone or video-link, at mutually convenient times. As a practical reality, I note that 16- year-old boys often prefer to spend more of their free time speaking to their friends than to their parents. The Mother will not impede him from talking with the Father, but she will not be to blame if he chooses to speak to the Father less than he did when he was younger.

The same principle will apply to the other children as they become older. [ 75 ] The issue of travel came up in passing. In his closing argument, the Mother’s counsel requested that a final order include clauses

that the Mother would have the right to travel with the children without the Father’s written consent, and that the Mother could procure government identification without the Father’s consent or signature. There was no evidence that the Mother planned to move with the children from Notre Dame even in the medium-term future. The oldest child will be 18 in two years. The youngest child will be 18 in 10 years. [ 76 ] There was no evidence that Mother has ever suggested any inappropriate travel with the children.

Therefore, as she will have majority parenting time, and as the Father has demonstrated occasional irrational and childish behaviour, I am prepared to grant the Mother sole decision-making in respect of the children’s travel. She will be expected to advise the Father about travel outside of Manitoba at the earliest possible opportunity.

For example, if a child is scheduled to attend a sports tournament in Saskatchewan, the Mother must advise the Father by email or text (or other written medium) of the dates and location of the tournament as soon as possible after she obtains them. [ 77 ] There was no specific evidence about any of the children needing any government documents. I do not know if any or all of the children have passports. However, it is conceivable that one or more child might need a passport in order to participate in a tournament in North Dakota, or some similar commendable activity.

Again, the Father has been irrational and childish in the past. There is no evidence that the Mother has ever attempted to obtain any government documents for any improper purpose. Therefore, the order shall include a clause dispensing with the need for the Father’s signature on applications for government documents for the children. [ 78 ] There was no discussion about the right to obtain information about medical, educational and similar matters. In principle, both parents should be able to contact the children’s schools and health-care providers to request information.

Neither parent shall impede this sort of contact. [ 79 ] These orders often include clauses that parties exchange annual income tax returns without undue delay. There was some incomplete evidence that the Father did not file such a return in one or more years.

Out of an abundance of caution, I will order that the parties must exchange honest annual income tax returns by June 1 of every year, whether they choose to file them with the Canada Revenue Agency or not. [ 80 ] Also, if the Father obtains a job, or if the Mother obtains a new job, they will be expected to provide each other with honest documentation about the job and its salary, without undue delay. Copies of pay stubs would be sufficient. If there is a written contract, a copy of the contract would also be appropriate. Child Support [ 81 ] Child support hinges on what income, if any, to impute to the Father.

No one disputes that his primary legal income since his back injury has been social assistance. [ 82 ] The Mother suspects that the Father has been working for cash under the table. Her only concrete evidence is what she saw on the day she took the photos (the day the Father helped his uncle). The Mother argued that she only watched the Father for one day and she saw him working on that day. The inference must be that he works on all, or most days.

Although there is no evidence that the Uncle paid him any amount of cash, the Mother argues that, either the Uncle pays him cash, or he is healthy enough to work for payment, doing light duties. [ 83 ] When I ruled that the photos were admissible, I urged counsel to make arguments about their weight. I find that they have very little weight. Firstly, they merely illustrate the things that the Mother testified about credibly. I would have believed her factual evidence even if there had been no photos.

Secondly, the photos do not show the Father doing any heavy lifting or any strenuous tasks that would be inconsistent with his own evidence about his sporadic back pain. [ 84 ] As for Mother’s theory that he must have done work for his uncle on other days, I agree that the situations looks “fishy”. On the other hand, some nephews do help their uncles for free on rare occasions, and it is possible that it was just a coincidence that the Mother happened to see him one day.

In short, I am not prepared to impute income to the Father on the basis of one fishy-looking event. [ 85 ] No one argued that the Father can go back to his old job as a heavy equipment operator. The medical evidence made this crystal clear. [ 86 ] The Mother argued that I should impute income of $54,000 per year to the Father. This arbitrary number was chosen because it would apparently yield child support payments of $1,000 per month, which was the somewhat arbitrary figure agreed upon by the parties when they signed their voluntary agreement (without the benefit of counsel) in 2017.

In short, there is no magic in $54,000. [ 87 ] However, there are part-time jobs with flexible hours that do not require difficult physical activity. For example, some telemarketers now work from home on a commission basis. I have no idea if this sort of job opportunity might be available to the Father in Portage today. However, the crucial point is that, over three years after his back injury, the Father has not even investigated his retraining options. Perhaps he could be an at-home telemarketer. Perhaps not.

He has not bothered to look into it. [ 88 ] As Donovan and other cases on imputing income for underemployment point out, the key is reasonableness. To be blunt, the Father has not been reasonable. A reasonable person might have been content to wait and see how his back progressed, while collecting social assistance, at least for awhile.

However, after some reasonable period of time, when it became clear that his back was not going to return to normal, a reasonable person would have begun investigating retraining options. [ 89 ] There is no evidence that the Father was ever offered a specific job that would have been within his physical limitations, and that he refused it. If there had been such evidence, I might have considered imputing the annual salary for that specific job. [ 90 ] My task is more complex. Having concluded that the Father’s behavior was (and is) unreasonable, what sort of income can be reasonably imputed to him?

If I imputed no income at all, and simply scolded him for being unreasonable, that would not be doing justice to the best interests of the children, which are always paramount. On the other hand, given his physical limitations, it would be

unfair to impute an overly large income to him. [ 91 ] A fair balance between these considerations would be to impute to the Father the wages that he would earn doing a minimum- wage job for 35 hours per week. Minimum wage in Manitoba will soon be $15.30 per hour, so that would be a fair number to use. Multiplying $15.30 by 35 by 52 would yield an annual income of $27,846 per year. I impute that income to the Father and, effective June 1, 2023, order him to pay table child support accordingly. [ 92 ] As for

section 7 expenses, the Mother has been bearing this burden alone. There was no evidence before me about the Mother’s income, although there was some information in triage briefs about her income in previous years. Effective June 1, 2023, the parties shall pay

section 7 expenses in proportion to their incomes (actual income for the Mother, and imputed income for the Father). [ 93 ] Of course, the final order should include a standard MEP clause. [ 94 ] The above conclusions are consistent with the principles articulated in Donovan and the other case law cited. Arrears [ 95 ] Child support arrears also raise a complex issue. The arrears are pursuant to the voluntary child support agreement, which required the Father to pay $1,000 per month plus $200 per month towards childcare for the youngest child. This voluntary agreement has never been amended.

The evidence tendered left some questions unanswered. [ 96 ] In principle, the Father should be liable for 100% of all child support and childcare arrears accumulated before his back injury. There is simply no valid excuse for those arrears. The parties filed a document from MEP showing a grand total of child support and

section 7 arrears (including fees and charges) of over $52,000, as of January 16, 2023. The document does not show a pre-injury and post-injury breakdown. As noted above, the Petition was filed on April 7, 2020. [ 97 ] Finally, there is the practical reality that one cannot obtain blood from a stone. Even if the Father actually began a minimum- wage job tomorrow, it is just not realistic to anticipate that he will find an extra $52,000 in the next year or so. [ 98 ] Again, a balancing of interests would be the fairest solution.

The Father shall be liable to pay all child support (and childcare) arrears accumulated before his back injury. He shall have 24 months to pay. The parties might voluntarily agree upon a payment schedule, and I urge them to consider this option. All other arrears shall be remitted (cancelled). [ 99 ] If the parties cannot agree upon the appropriate mathematics, I remain seized for the limited purpose of finalizing the precise numbers. C OSTS [ 100 ] The Mother was more successful than the Father. She was 100% successful on the issue of parenting time.

She was successful on the principle of imputing income to the Father and requiring the Father to pay some arrears. I chose more modest numbers than the Mother had requested, but she was successful in respect of the underlying principles. [ 101 ] There was one quirk that is relevant to the issue of costs. The parties finished their evidence but had no time for final argument in the days allotted for the trial. Therefore, counsel agreed to submit closing argument in writing. The Father’s counsel was to file his argument by February 8, 2023, and the Mother’s counsel was to file by February 15, 2023.

By agreement, there was to be no reply by the Father’s counsel. [ 102 ] The Father’s counsel did not file before February 15, so the Mother’s counsel met his own deadline and filed his argument on time (on February 15). Finally, on March 15, 2023, the Father’s counsel filed his argument. At a March 17 teleconference, he apologized. By consent, Mother’s counsel filed a very short reply argument by March 24. [ 103 ] Rule 57.01(1)(d.2) allows the court to consider missed filing deadlines in awarding costs. Missed deadlines are a serious matter. If all parties missed all deadlines, there would be literal chaos.

Sometimes an adjournment is a good remedy for a missed deadline, but sometimes an adjournment would prejudice the innocent party as much as the guilty one. In such cases, costs are the main arrow in the court’s quiver. [ 104 ] Therefore, because of the missed deadline, it would be reasonable to add $250 to the costs payable by the Father to the Mother. [ 105 ] Apparently, there has been a formal settlement offer pursuant to the Rules (see Rules 49.02 to 49.10). Of course, I do not know what that offer was. Had there been no settlement offer, I would have awarded regular (tariff) costs plus $250 to the Mother.

However, the Rules regarding offers might affect that (see Rule 49.10 ). If counsel are not able to agree upon precise costs, I remain seized for that limited purpose. [ 106 ] I thank counsel for filing an Agreed Statement of Facts and for cooperating during the trial. __________________________J.