L.A.N. A pplicant And: L.P.N. Respondent, 2019 NLSC 117

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : L.A.N. v. L.P.N. , 2019 NLSC 117 Date : June 6, 2019 Docket : 201502F0970 Between: L.A.N. A pplicant And: L.P.N. Respondent Before: Justice Jane M. Fitzpatrick Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: May 14, 15, 16 and 17, 2018 September 28, 2018 October 3 and 5, 2018 Written Submissions: November 26, 2018 Appearances: Nicholas J.G. Avis, Q.C. Appearing on behalf of the Applicant

Sandra M. Burke, Q.C. Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Gosse v. Sorensen-Gosse, 2011 NLCA 58; Pumphrey v. Pumphrey, 1999 CarswellNfld 145, [1999] N.J. No.166 (Nfld. S.C.T.D.); Wiscombe v. Wiscombe, 2018 NLCA 36; Watson v. Watson, 2015 ONSC 2091; Sarro v. Sarro, 2011 BCSC 1010;Chambers v. Chambers, 2011 SKQB 20; Clark v. Clark, 2012 ONSC 1026; Rayes v. Dominguez-Cortes, 2018 ONSC 6580; Davis v.Davis, 2018 ONCJ 53; Yeates v. Yeates, 2007 CarswellOnt 2107, 156 A.C.W.S. (3d) 877 (Sup. Ct. J.), affirmed, 2008 ONCA 519;Matthews v. Taylor, 2012 NLTD(G) 24; Bracklow v.

Bracklow, (SCC), [1999] 1 S.C.R. 420, 169 D.L.R. (4th) 577(SCC); Moge v. Moge, (SCC), [1992] 3 S.C.R. 813, 43 R.F.L. (3d) 345; Fisher v. Fisher, 2008 ONCA 11; Djekic v. Zai,2015 ONCA 25; Gagne v. Gagne, 2011 ONCA 188; Penney v. Pike, 2009 NLTD 84; Chutter v. Chutter, 2008 BCCA 507; Baldwin v.Baldwin, 2013 NLTD(G) 89; Griffiths v. Griffiths, 2011 ABCA 359; Yemehuk v. Yemehuk, 2005 BCCA 406; Shih v. Shih, 2015 BCSC2018 STATUTES CONSIDERED: Pension Benefits Act, 1997, S.N.L. 1996, c. P-4.01; Family Law Act, R.S.N.L. 1990, c. F-2; Rules of theSupreme Court, 1986, S.N.L.1986 c.42, Sch.

D; Federal Child Support Guidelines, S.O.R./97-175; Divorce Act, R.S.C. 1985, c. 3 (2ndSupp.) OTHER: Spousal Support Advisory Guidelines. REASONS FOR JUDGMENT Fitzpatrick, J.: INTRODUCTION [1] The parties were married on December 23, 1993 and separated on September 1, 2014. There are four children of the marriagenamely, SN, born in 1995, BN, born in 1998, KN, born in 2001, and HN, born in 2006. The two minor children, KN and HN, remain in aconsent shared week on/week off parenting arrangement. [2] L.A.N. is the mother. The mother is a physician, in particular a pediatrician. She was born in St. John’s in 1968.

At the timeof marriage, she was a pediatric resident trainee. The mother is currently a fee-for-service pediatrician at the Janeway Children’s Healthand Rehabilitation Centre. She is also an associate professor of pediatrics with Memorial University of Newfoundland and Labrador. Her particular expertise is breastfeeding and diabetes research. [3] L.P.N. is the father. The father was born in St. John’s in 1964. He obtained a Bachelor of Commerce in 1987 from MemorialUniversity and a chartered professional accountant or “CPA” designation in 1994.

In 2003, he started, but did not complete, a Master’sin Business Administration or “MBA” program through the University of Edinburgh. Since September 2018, he has been employed full-time with Scotiabank. [4] This matter was commenced by the mother by way of an Originating Application filed on November 20, 2015. The divorce onthis matter was completed during the first day of the trial.

There are currently interim orders in place regarding parenting, spousalsupport and child support. issues [5] The following is a broad list of issues to be decided in this case: • Division of remaining matrimonial assets and debts; • Some parenting issues; • Costs of interim application for the “It’s Okay” program; • Determination of income for both parties since the time of separation, including whether an income should be imputed tothe father;

• Determination of special and extraordinary expenses paid both retroactively and on a go-forward basis, as well as how to decide these matters in the future; • Appropriate range of child support, both retroactive and on a go-forward basis; • Entitlement to spousal support by the father. This includes an assessment of the appropriate quantum and duration of spousal support, if awarded, and retroactivity of spousal support; and • Costs. [ 6 ] Counsel for both parties acknowledge that special and extraordinary expenses have never been sought in pleadings.

They both agree that the Court shall deal with these issues retroactively to date of separation as well as on a go forward basis. [ 7 ] There are some matters which have either been settled, agreed to or nearly agreed to by the parties. background [ 8 ] The parties have agreed to a date of separation of September 1, 2014. From the date of separation until January 4, 2015, the parties were living separate and apart under the one roof. The father remained in the master bedroom while the mother moved to a bedroom in the basement. Financially, they continued to operate as one unit.

From the period of January 4, 2015 until May 15, 2016, the parties engaged in what is known as “nesting”. In other words, the parties alternated living in the matrimonial home with the children and a separate residence outside the matrimonial home on a weekly basis. This arrangement left the children uninterrupted in their childhood home. [ 9 ] The nesting arrangement ended by way of an interim order of LeBlanc, J. dated February 22, 2016, in which he ordered that the mother shall acquire the father’s interest in the matrimonial home and the father shall vacate the home by March 13, 2016.

The mother has paid the father his interest in the home and the matter of equity in the matrimonial home was settled prior to trial. [ 10 ] The arrangements the parties had while in the nesting phase was that they would each provide for the groceries and needs of the children during their week in the home. The mother claims that she bought significant groceries for the home, while the father left the cupboards relatively bare when he would leave after his week in the home. The father claims that they only had to buy their own groceries for their week.

Either way, he disputes her claim that he left the house bare of essentials at the end of his week. [ 11 ] When they initially separated in 2014, the oldest child was living in Ontario and the three youngest children were still living in the home. At that time, the oldest son, SN, was attending the University of Waterloo; the second oldest son, BN, was a high school student; the daughter, KN, was in junior high school; and the youngest son, HN, was in elementary school. [ 12 ] The oldest son, SN, completed his Biomedical Engineering degree in April 2019 at the University of Waterloo.

He has been living in Ontario since 2014. All of his semesters and work terms have been out of this province. He has been home for short visits one to two times per year since he moved to Ontario in 2014. [ 13 ] BN graduated from high school in 2016. In August 2017, he moved to live and work in Victoria, British Columbia to pursue a rugby career. He was in the matrimonial home and part of the “nesting” arrangement until May of 2016, when he choose to reside primarily with his mother when in Newfoundland. His plans for September 2019 are undecided and contingent on whether he makes the National Rugby team.

He has been living with the mother since September 2018. He is currently working part-time in retail and is a full-time student at MUN. [ 14 ] KN is in her last year of high school and is not currently registered in any extracurricular activities. With the consent of her parents, she is going on the trip to Italy with her school in the spring of 2019. She does plan on attending university in the fall of 2019. Since September 2018, she works part-time at a local restaurant. She lives week on/week off with each parent. [ 15 ] The youngest son, HN, also lives week on/week off with each parent.

He is currently 12 years of age and in junior high school. He is a very athletic child and a gifted hockey player. Like his siblings, he does well in school. After separation, he did have some struggles adjusting as compared to his older siblings. His emotional well-being and ability to cope with the high conflict divorce of his parents took a temporary toll on him.

He attended the “Its Ok” program at the Janeway, participated in additional extra-curricular activities and now appears to be doing quite well. [ 16 ] This is a high conflict situation and, therefore, the parties have used an app called “Talking Parents App”, which has significantly reduced conflict between them. The mother wishes to continue to pay for this app and for them to use it to communicate regarding issues about the children. The father does not seem opposed to this proposal.

This app has worked well for these parties. [ 17 ] Neither party has any other children nor have they re-partnered. matters in agreement [ 18 ] The equity in the matrimonial home, located in St. John’s, has been disposed of to the satisfaction of the parties. The only outstanding issue is the costs of operating the home from the date of separation until this transfer occurred in May 2016.

[ 19 ] The parties do not dispute that the father’s government pension is to be divided and that the mother is entitled to half the pension credits accumulated during the period of the marriage. Both parties agree that this division will take place pursuant to the Pension Benefits Act , 1997, S.N.L. 1996, c. P-4.01 . The mother has requested that she take this as a lump-sum pursuant to that legislation. She will likely have to complete documentation to effect this transfer. I endorse this position of the parties, and order that any documentation required to effect this transfer be agreed between them.

If there is a dispute or if an order is required, leave is granted to return to Court or to file a consent order. [ 20 ] The mother is in possession of a Jeep Wrangler. The parties have agreed that she owes the father the sum of $2,954.50 for his half share of the equity. This represents an agreement that, as of 2015, the equity was valued at $5,909.00. [ 21 ] The parties have agreed that a Newfoundland Power HST rebate received by the father for all three properties in 2017 shall be divided equally.

Therefore, the father owes the mother $704.59. [ 22 ] The parties have agreed that the father owes the mother half the Tangerine account proceeds at the date of separation. Therefore, he owes her $45.98, representing her half share of the account at the date of separation. [ 23 ] The parties have agreed that the Scotiabank Visa debt as of September 1, 2014 was $4,636.07. The parties agree that the mother paid this debt and the father owes her $2,318.03, which is half of this amount. [ 24 ] The parties agreed that there was a business bank account with an overdraft of $10,653.97 at the date of separation.

The parties agreed that the father owes the mother half of this amount or $5,326.98. [ 25 ] There is also a Scotiabank Line of Credit which, as of September 1, 2014, had a balance of $38,668.74. The father acknowledged that he owes the mother half of this amount. However, she also alleged that post-separation he withdrew another $9,098.25. She requested that he pay her this amount back with interest. Counsel for the father, on the record during trial, conceded that he withdrew around $9,000.00 post-separation.

I find that this additional $9,098.25 is therefore owed by him to the mother. [ 26 ] The parties own two summer properties, which I will refer to as “Deer Park” and “Norman’s Cove” throughout this decision. The parties have agreed that certain items sought by the father from Deer Park shall be turned over to him. I order that these items be turned over to him no later than 60 days following the date of this decision.

These items are listed as follows: • Fishing poles and related equipment; • Fishing kayak; • Lifejacket; • Paddles; • Chainsaw; • Adirondack chair; and • Personal clothing and items belonging to the father. [ 27 ] The parties have agreed that the mother has no interest in the father’s vehicle. division of disputed matrimonial property Deer Park [ 28 ] The Deer Park property was purchased in 2009 for $199,100.00 and the mortgage is held at Scotiabank. Both parties agree that this is matrimonial property and that the mother shall purchase this property by buying out the father.

There is great dispute over two issues: whether occupational rent is owed and, if so, the commencement date, and the total amount of applicable property expenses. Occupational rent [ 29 ] The parties dispute whether occupational rent is owed on this property to the father. Further, if the father is entitled to occupational rent, should the commencement date begin on September 1, 2014 or on January 1, 2015? He claimed that he is owed occupational rent commencing September 1, 2014.

She suggested that January 1, 2015 is the appropriate start date. [ 30 ] The parties agreed with the consent exhibits from an appraiser that occupational rent would be between $700.00 and $800.00 per month. The mother suggested that occupational rent be $750.00 per month commencing January 1, 2015, while the father suggested $700.00 per month commencing September 1, 2014.

In her final reply, the mother accepts the lower figure suggested by the father of $700.00 per month, but has not changed her position with respect to the commencement date of occupational rent, should it be awarded. [ 31 ] The legislation governing occupational rent is the Family Law Act , R.S.N.L. 1990, c. F-2, sections 8 , 15(1) (

b) and 26 . The issue of occupational rent was canvassed in the case of Gosse v. Sorensen-Gosse , 2011 NLCA 58 . I note in particular paragraphs 60 and 61 of that decision, wherein our Court of Appeal stated that unless there are exceptional circumstances that would justify declining an order of occupational rent, it should be awarded where the facts merit it’s award.

To be eligible for occupational rent, one spouse must have exclusive use or occupation of a matrimonial home. [ 32 ] The dispute about the dates for occupational rent arise from the fact that the mother claimed that she did not fully express her interest and really take control of Deer Park until January 2015. Therefore, she argued, January 2015 is the appropriate date from which to commence her occupational rent owed. The father argued that the mother’s testimony confirms that she had changed the locks to this

property in September 2014 and that he was excluded from it. He maintained that she was always taking control of this property from that date forward and that he had no access to it; therefore, she should pay him occupational rent from that date. It is undisputed that post-separation, she added a hot tub to this property. [ 33 ] I find that the evidence given at trial, in particular the evidence of the mother, does indicate that she took control of this property in September 2014. She paid for all the upkeep regarding the property, including the installation of a hot tub.

It is significant that the mother changed the locks to the property. She admitted to using the property one or two nights every three to four months, although she said it was primarily to check on the property. She said that, on the advice of a lawyer, she later changed the locks back. It is unclear exactly when this occurred. [ 34 ] The mother did not dispute that occupational rent for this property should be $700.00 per month (as given by the appraiser). I find that $700.00 per month for occupational rent, commencing September 2014, is appropriate.

I find that due to changing the locks, paying the bills, addition of a hot tub and her physical usage of the property, that the mother controlled this property since September 2014. Changing the locks back after consulting with a lawyer does not change my conclusion. She intended to exclusively use this property and exclude the father in September 2014. [ 35 ] The mother’s position is that, if the Court decides that she should pay the father occupational rent on Deer Park, he should pay her occupational rent on the Norman’s Cove property as a matter of fairness. I am dealing separately with these properties.

There are different facts surrounding each property. I will deal with this issue under the “Norman’s Cove” section. Expenses [ 36 ] The parties also dispute what expenses are applicable. The mother is not seeking reimbursement for one-half of the power bills associated with this property. She wants the father to pay one-half of the other expenses related to the ownership including the mortgage and mortgage insurance, house insurance, waste management fees, road repair and fire fees, and repairs (consisting largely of a new water pump). This was all paid by the mother. These fees are known and not disputed.

Fees include a mortgage payment of $930.68 per month and insurance payment of $321.80 per month. The road fees were $300.00 per year in 2015, but in 2016 and each year thereafter, they seemed to have increased to $345.00 per year. In addition, the waste management fee was $90.00 and in 2017 forward, it appears to be $180.00 per year. Repairs of $499.87 should be included. All of these fees, commencing September 1, 2014 and until the date the property is transferred to the mother, must be equally shared with an adjustment for the occupational rent of $700.00 per month.

Division [ 37 ] Evidence tendered at trial lists the mortgage owing as of September 28, 2018 as $144,630.19. An appraisal dated May 10, 2018 values this property at $225,000.00. This appraisal was a consent exhibit and the $225,000.00 value is agreed between the parties. Both parties agree that the father’s share is half the equity in the house less his share of expenses.

Therefore, using this figure as the property value at the date of transfer, the parties will use the amount of the mortgage at the date of transfer, adjusted for the amounts owed for occupational rent and up-to-date expenses, to calculate what is owed. Norman’s Cove [ 38 ] The Norman’s Cove property, historically, originated from the family of the father. This property was used by the parties and their children for approximately ten years. There is no dispute that it is matrimonial property nor that he will buy out the mother and retain this property.

There is dispute over three issues: the property valuation and division, the property expenses and whether occupational rent is owed by the father to the mother. [ 39 ] The mother’s position is that if occupational rent is owed on Deer Park, as a matter of fairness, it should be owed on Norman’s Cove. I find that there is no legal basis to conclude that entitlement to occupational rent at one or the other property lessens or demands entitlement to occupational rent at the other one. In other words, I cannot find that entitlement to occupational rent is “linked” between properties under any legal principle.

Valuation and Division [ 40 ] There are two appraisals regarding the Norman’s Cove property. The first appraisal was done on February 6, 2015 stating a value of $30,000.00. The second appraisal was done on May 8, 2018 stating a value of $13,000.00. These values are accepted by the parties. There is no mortgage on this property. [ 41 ] The decrease in value is because the property has fallen into a state of disrepair and is now uninhabitable.

In particular, a wall in the home appears to be collapsing, landscaping is unkempt and damage exists to a porch ceiling. [ 42 ] The father’s position is that it is no one’s fault that the property is now in such a state of disrepair as it is very old. He argued that $13,000.00 is the appropriate value and he would therefore owe the mother $6,500.00 for her half share of this property. He stated that, as he had no exclusive control over this property, this situation is not his fault. [ 43 ] The mother disagreed.

Her position is that the poor condition, and consequent decrease in value, of this property is the fault of the father. She said that from the date of separation, he expressed his desire to retain this property as it was historically his family property. She argued that she should not be penalized because of the condition of the home and that it was the father’s responsibility to maintain it. She argued that she should get half the equity at the $30,000.00 appraisal value. [ 44 ] I find both parties equally responsible for the deterioration of this property.

The difference between the $30,000.00 original appraisal and the current $13,000.00 value is a decrease of $17,000.00. Apportioning this in half means each party is responsible for an $8,500.00 decrease in the value of the property. Therefore, I value the property as follows: $30,000.00 less $8,500.00 equals $21,200.00 divided in half equals $10,750.00. Therefore, $10,750.00 is the amount of money that the father shall pay the mother for the value of the Norman’s Cove property. This assigns half the blame for the decreased value to each party.

Expenses [ 45 ] It is undisputed that expenses associated with the Norman’s Cove property from the date of separation were entirely covered by the mother. The father agreed that he should contribute to expenses including insurance of $116.24, Newfoundland Power bill of $742.73 and taxes of $552.50. He said that he owes her half of the total of these expenses or he owes her $705.74, as well as her share of the equity. [ 46 ] The mother agreed that the father owes her half of the expenses on this property commencing September 2014.

She said expenses for Norman’s Cove actually total $1,571.23. [ 47 ] I find that the father owes her half of the expenses she has paid to date. I am using her figure of $1,571.23 because evidence indicates that this is the correct amount. Therefore, his half of expenses is $785.60. Occupational Rent [ 48 ] The mother is also claiming that she should receive her half of occupational rent from this property at $300.00 per month for 44 months or $6,600.00. Her counsel argued that $300.00 per month is a fair suggestion for occupational rent on the property.

She feels that she should not have to suffer the loss of occupational rent because he allowed the property to fall into such a state of disrepair as to render it uninhabitable. [ 49 ] The father disagrees. His position is that he does not owe occupational rent because he had no exclusive control over this property. Further, the appraiser could not give an occupational rent value as it is uninhabitable. [ 50 ] I decline to award occupational rent for this property. I say this for three reasons. [ 51 ] First, no evidence was called with respect to how to calculate an amount of occupational rent for this property.

The figure of $300.00 per month is a mere suggestion by counsel for the mother. The appraisal, dated May 8, 2018, declined to give an occupational rent amount citing the fact that it is uninhabitable. Without actual evidence regarding occupational rent, I do not find it is appropriate to simply suggest an amount. [ 52 ] Second, the mother knew that she was paying for all the expenses with respect to Norman’s Cove. The father never changed the locks to this property nor blocked her access to it. The father did not have exclusive access to it.

Given that she was paying all of the expenses for this property, it is reasonable that the mother could have repaired the property and kept it in a proper state of habitability. [ 53 ] Third, there is no evidence that the father had the responsibility to maintain this property, as alleged by the mother. I note that since the mother was paying the bills, she was aware of the extremely low rate of insurance on the property which had to signify something about value. I find it impossible to assign blame to either party for the deterioration of this property.

I am aware that the father wants this property and is now getting a property worth $13,000.00, which is essentially uninhabitable and requires considerable work to again become a residence. [ 54 ] Since the house has become uninhabitable due to inaction by both parties, the issue of occupational rent is moot. OMA Insurance [ 55 ] The mother acknowledged that the rebate from OMA Insurance of $1,885.96 was post-separation and was deposited into their joint account in December 2014. The father is requesting half this amount or $942.98.

The mother disputed his claim as she says that, at that time, they were both using this bank account. This was during the period when they were both still living together, but separate and apart under the one roof. Both parties were still using this bank account for household expenses and for the children in December 2014. [ 56 ] I find that since these funds were deposited in December 2014, when both parties were still using this account and financially operating as a family unit, no monies are now owed. RRSP [ 57 ] There are martial RRSP’s to be divided.

The mother raised an issue as to whether the father had withdrawn large sums of money from the RRSP post- separation. Counsel for the father suggested this may have resulted from amounts he contributed post- separation and that this can be settled between them. I order that the value of any RRSP’s, as of the date of rollover, shall be divided equally with an adjustment for any contributions or withdrawals made by either party since separation. Should this not resolve the issue, leave is granted to return to court. parenting [ 58 ] The parents agree to the following regarding the children, KN and HN: 1.

They shall have joint custody of KN and HN. 2. The children shall spend seven nights with the mother, returned the following Monday after school to the father for seven nights and then back to the mother - the same to continue on a go-forward basis establishing a week about parenting arrangement. The father shall be responsible for picking up the children at school at the commencement of his seven night parenting and the mother shall be responsible for picking up the children at school at the commencement of her seven night parenting.

If the children are not in school (i.e., P.D. day, long-weekend holiday (Labour Day, Victoria Day) or on summer vacation), the change-over will occur at 6:00 p.m. on Mondays. Transfer of the children’s sports equipment, school items or other possessions will be done on the transfer day. Both parents will respect the expected transfer times and be prompt as this provides predictability and stability for the children. The parents shall exchange the belongings in a manner that minimizes contact between the parents and avoids the children’s exposure to conflict.

3. It is each parent’s responsibility to

schedule their own travel/away time around the parenting arrangement. If one parent is unable to care for the children during their parenting time, they will forgo their parenting time so as to be minimally disruptive to the children’s

schedule with the option to reschedule so as to maintain days, if mutually agreed. 4. Should the custodial parent have to travel because of work (or travel for other reasons) and is requesting that the other parent care for the children in their absence, the parent requesting shall endeavor to give at least 30 days’ notice, except in cases of emergency. 5.

Should the custodial parent have any other engagement whereby they are not able to care for the children for two consecutive overnights and a babysitter or other caregiver is required overnight for the children, the non-custodial parent shall be given the first opportunity to care for the children. 6. During the periods of time that the children are physically present with the custodial parent, the non-custodial parent shall have: a. Unlimited telephone, FaceTime and texting access via parent’s phones or children’s iPads. b.

Should the children request access to either parent during the other parent’s normal week, access will be provided for a reasonable period of time on a mutually agreed day to accommodate the children’s request, as reasonably as possible. c. The non-custodial parent can access the children by taking them to lunch (on school days) or attending their activities. 7. With respect to sick days for the children, the parties agree that: a.

The non-custodial parent must be informed of the children’s illness (with symptoms) and or injury within short notice by email (or telephone), and the custodial parent will not deny reasonable access to the children if requested by the non-custodial parent of the children. b. If the custodial parent is not available to care for the children, the non-custodial parent shall be given the first opportunity to care for the children. c. If the children are sick or injured and need to be brought to a doctor or to the hospital, the other parent shall be notified by telephone immediately. 8.

With respect to travel and vacations with the children, the parties agree that: a. It is not acceptable for the non-custodial parent to pre-arrange travel or vacations with the children prior to the custodial parent giving approval when it is occurring outside their respective parenting week, except for the two-week summer vacation period (see 4b). b.

During odd numbered years (starting 2019), the father will notify the mother by April 1 with the two weeks he chooses for summer vacation with the children (within the confines of the Monday to Monday transfer schedule) and the mother will notify the father of her two weeks by April 15. The alternate would happen in even numbered years. If the parent required to give notice fails to do so by April 1, that parent may select his/her vacation after the other parent selects his/her vacation and provide the other parent with two weeks’ notice of such vacation. c.

For travel outside of the province, the travelling parent shall provide the non-travelling parent with 30 days’ notice of his/her intended travel dates. Furthermore, the travelling parent shall provide the non-travelling parent with a full copy of the official travel itinerary along with contact information (address of hotel, telephone numbers, emergency contact numbers, et cetera) for the period the children are travelling with the travelling parent, at least 14 days prior to the date of departure. d.

Should either party be travelling outside of Canada, the other party shall, in a timely fashion, sign all necessary documentation (e.g. travel authorization) to facilitate travel outside of the country. 9. The parties agree that the regular custody

schedule be interrupted for Christmas as follows: a. During the odd numbered years: i. The father shall have the children from 5:00 p.m. on December 24 to 5:00 p.m. on December 25; ii. The mother shall have the children from 5:00 p.m. on December 25 to 5:00 p.m. on December 26; iii. The mother shall have the children from 5:00 p.m. on December 31 to 5:00 p.m. on January 1; iv. The father shall have the children from 5:00 p.m. on January 1 to 5:00 p.m. on January 2; and v. All other days shall follow the regular custody

schedule b. During even numbered years: i. The mother shall have the children from 5:00 p.m. on December 24 to 5:00 p.m. on December 25;

ii. The father shall have the children from 5:00 p.m. on December 25 to 5:00 p.m. on December 26; iii. The father shall have the children from 5:00 p.m. on December 31 to 5:00 p.m. on January 1; iv. The mother shall have the children from 5:00 p.m. January 1 to 5:00 p.m. on January 2; and v. All other days shall follow the regular custody schedule. 10. The parties agree that statutory holidays will be spent with custodial parent as per the regular

schedule including Easter season. 11. The parties agree that special occasions, including birthdays, Mother’s Day and Father’s Day, will allow access as follows if it occurs during the parent’s non-custodial week: a. The mother shall have access to the children on Mother’s Day from 8:00 p.m. the day before until 8:00 p.m. on the day. b. The father shall have access to the children on Father’s Day from 8:00 p.m. the day before until 8:00 p.m. on the day. c. The children will spend their birthday with the parent who has care of them that week.

The non-custodial parent can take the children out for lunch on the children’s birthday (12:00 p.m. to 2:00 p.m. if it occurs on the weekend). d. Both parents agree that they will plan their own respective children’s birthday celebrations at their own cost to occur during their own parenting time. 12. The parties agree to the following regarding communication and the children: a. Both parents will provide the other with their current email address and phone number where they can be reached at all times. Both parents will ensure that all phones are enabled to receive and record messages.

It is unacceptable to allow systems to remain unclear or not enabled to receive and record messages. b. The parents shall advise and consult with each other on all matters concerning and relating to the health, education and general welfare of the children. This includes related appointments and meeting details such as dates and times. If they fail to agree on major decisions regarding the children’s health, education and general welfare, they agree to attend a mediation service of their mutually agreed choice to resolve any dispute.

If mediation fails, either party may apply to the court for a determination of the issue. c. The parents will provide a once weekly correspondence via the parent communication (Talking Parents APP) to track scheduling, expenses, and to advise either parent of any issues related to school, activities and the children’s health, on transfer day, except in the cases of emergency where a telephone call is appropriate. The emails shall be brief, respectful and related solely to the children, with no reference to either of the parents.

Absent an emergency, the parents shall contain all information in a once weekly email (on transfer day) and only if needed during the weekdays for time-sensitive issues. d. In parenting the children, the parents shall always endeavor to act in the best interests of the children and shall promote and foster good interaction, confidence in and respect for the other parent. They shall not speak disparagingly or negatively about the other parent, or with any party, in the presence of the children. Disputed Parenting Issues [ 59 ] There are several disputed parenting issues.

The issues of major concern are: passports, medical and dental appointments, how to agree to future special expenses for the children and managing sports equipment. Passports [ 60 ] One issue is the control of passports for the children. The mother wishes to keep the passports and the father wishes for them to go back and forth between the parties. This is a highly contentious matter. I have decided, due to the high level of conflict, the passports shall be retained by the mother. Traditionally, the mother has been the person who organizes this type of item for the children.

It makes sense that she continue in this role. If the father requires the passports for travel with the children, he will request them from her at least fourteen days in advance of any travel. The mother will turn the passports over to him for travel with the children at least seven days in advance of the departure date. When the father returns from travel, he will return the passports to the mother for safekeeping within seven days of return. [ 61 ] The application and costs for renewal of passports shall be done by the mother and she shall submit all receipts to the father.

Upon receipt of proof of cost for passport renewal, the father shall proportionally share the costs and shall pay the mother within 30 days of receiving the receipts. Both parties are required to sign the passport application. Once a new passport is issued for a child, the father shall be given a photocopy of the actual passport within seven days of receipt of the passport. This ensures that he always has a copy of the children’s passports, and enables him with booking foreign travel.

Medical and Dental Appointments [ 62 ] The management of medical and dental appointments is also a contentious issue for the parties. The oldest daughter, KN, is 17 and this does raise some privacy concerns with respect to her medical information; however, their son HN is still a minor child. I order that the mother manage all medical and dental appointments for the children. She will then immediately advise the father of the times and locations of all medical, dental and related appointments in writing.

This includes similar appointments, if any exist, such as psychological or other types of professional appointments needed by the children. She is a physician who would better understand

medical issues and was traditionally doing this role. In the event of an emergency, either parent shall take the children to the doctor or hospital and immediately notify the other party. Both parties are fully allowed to attend all medical, dental or other similar appointments (e.g. physiotherapy) for the children. [ 63 ] There are issues regarding both the cost and management of sports equipment, in particular hockey equipment.

I will deal with these issues under special expenses. costs OF interim application for the “it’s okay” program [ 64 ] On September 6, 2016, I presided over an interim hearing where the mother applied for the child, HN, to attend this program at the Janeway.

The “It’s Okay” program is intended for children of separating parents who may be experiencing stress and other symptoms, and need support and guidance. [ 65 ] The mother provided a detailed affidavit of the symptoms HN was experiencing such as trouble sleeping, waking mid-night or early morning, crying for no known reason, unable to make simple decisions and often responding with “I don’t care”. His demeanor before separation was described as outgoing, confident and assertive. After the high conflict separation of his parents, HN was described as confused, insecure and uncertain.

The mother noted that she could not obtain the father’s consent to have HN attend the program, despite numerous attempts (email excerpts provided). Due to HN’s crisis, she felt she had no choice but to take the interim application regarding this issue. [ 66 ] On the interim hearing date, the father consented but he wanted to be the parent who went with HN (only one parent could attend). Earlier emails from him indicated a resistance to this program as he questioned if it was necessary. The mother was successful at the hearing and sought costs.

The issue of costs was set over until the final trial. [ 67 ] Rule F33.02 the Rules of the Supreme Court, 1986, S.N.L. 1986, c.42, Sch. D ., Family Law Rules : F33.02

(1) The judge has the right to decide whether a party must pay the costs of another party.

(2) There is a presumption that a successful party is entitled to the costs of a proceeding.

(3) Despite the presumption in subrule (2), in matters of parenting the judge has the discretion to reduce or decline an award of costs to a successful party if the judge determines that the positions of both parties throughout the proceeding were reasonable, held in good faith, and in the best interests of the child. [ 68 ] The father argued that forcing this matter to a hearing was acting in good faith and the child’s best interests.

He argued that he felt he was the best parent to take HN to “It’s Okay”. [ 69 ] It was obvious at the hearing that the father’s consent to allow HN to attend this program, a well-established and beneficial program, had been sought for some time. Evidence indicated that the father was reluctant to recognize how significant HN’s emotional needs were. I do not agree that this hearing was necessary or that the father forcing the issue to a hearing, on the basis that he now be the one to take HN to the program, was either child-focused or acting in the child’s best interests.

For this reason, costs are awarded for this interim application to the mother. This is in accordance with Rule 55 of the Rules of the Supreme Court, 1986 , Scale of Costs, Column III. Retroactive Calculation of The mother’s Income and $30,000 given to SN for university [ 70 ] Summarized below are the three interim orders dealing with child and spousal support. All basic child support and spousal support amounts were paid by the mother to the father.

Interim Order History Date Consent or Post-Hearing Details on Spousal Support Details on Child Support February 22, 2016 Post Hearing $3,500/month Starts March 1, 2016 No salaries listed $3,700/month for 3 children (BN, KN, HN) Starts March 1, 2016 No salaries listed April 12, 2017 Consent Order $4,100/month Starts May 1, 2017 No salaries listed $2,810/month for 2 children (KN and HN) Starts May 1, 2017 No salaries listed

October 5, 2018 Consent Order $3,539/month Starts September 1/2018 They agree outstanding spousal support owed fixed at $8,050 as of October 4, 2018 Shall be paid off in lump sum as of November 4, 2018 $2,230/month for 3 children (KN, HN and BN) Starts September 1, 2018 Her salary: $283,505 His salary: $75,000 But they agree this is a non-Guideline amount and he pays her $400/month toward special and extraordinary expenses [ 71 ] Affidavit evidence regarding income was tendered by the parties to enable LeBlanc, J. to decide child and spousal support in his interim order of February 22, 2016.

The amount of income attributed to the mother to calculate the interim support reduced her income by $30,000.00 as this money was given to the son, SN, for his university expenses. SN was studying at the University of Waterloo. The father, in his affidavit sworn on December 9, 2015, agreed that her income shall be reduced by $30,000.00 for spousal and child support calculations. [ 72 ] The $30,000.00 was removed from the mother’s personal medical corporation (“ PMC”), sent to the Family Trust and then given directly to SN each year to fund university expenses at Waterloo.

He is expected to graduate in the spring of 2019. The fact that this money was given to SN for this purpose is not disputed between the parties. There is no allegation that the money was returned to the mother or otherwise spent. Also, there is no interim order explicitly dealing with $30,000.00 being removed from the mother’s income for this purpose. [ 73 ] The father argued that this was purely an interim arrangement. For the purposes of retroactive calculations, he wants the $30,000.00 added back to the mother’s income.

The father agreed that he would have to share post-secondary expenses for SN for the past four years at Waterloo. SN did his first year of university at MUN. His counsel argued that this support order is an interim order and, by its very nature, can be changed at trial. Counsel for the father further argued that he cannot be held to statements made in an affidavit prepared for an interim hearing. His counsel described his statements in this Affidavit as a “concession” only in an effort to come up with an interim arrangement.

He mentioned the tax benefit to the mother. [ 74 ] The mother argued that the support order may be interim, but the agreement to reduce her income by $30,000.00 to fund SN’s education was not. She said that this was their agreement and it was meant to be a final agreement. She said this agreement was made around the time SN decided to go to the University of Waterloo; it was never reduced to writing, except for the content of the affidavit mentioned here, because it was not necessary to do so.

She said from the time SN was set to go to the University of Waterloo, they agreed to remove $30,000.00 from her income each year to cover SN’s expenses and reduce her income for related calculations. In particular, she pointed to the affidavit filed by the father and sworn on December 9, 2015. She argued that, in the affidavit, he clearly agreed to reduce her income for this purpose and acknowledged their agreement. The mother’s argument is that the father is now trying to gain economic advantage and has reneged on their agreement.

Her position is that the father has figured out that, if $30,000.00 is added back into her income, he will likely get more money, even if he has to share SN’s university expenses. She described him as reneging on their agreement for his own financial gain, and she characterized his testimony as deceitful and self-serving. [ 75 ] Counsel for the father argued that, pursuant to Pumphrey v. Pumphrey , 1999 CarswellNfld 145 , [1999] N.J. No. 166 (Nfld. S.C.T.D.) , orders made at an interim hearing are without prejudice to a full and fair assessment of issues at trial.

On this basis, an interim order is able to be completely revisited and replaced. [ 76 ] I agree that an interim order can be replaced. This is not what is in dispute. The issue before me is whether there was an agreement between the parties that $30,000.00 would be deducted from the mother’s income for the purpose of calculations, while the money went to their son for university. Not all agreements are in writing. This issue itself is not contained in any interim orders nor written agreement. This issue requires an analysis of credibility of testimony given at trial.

The mother said they had a final agreement, while the father said this agreement was merely interim. [ 77 ] I have closely examined the affidavit of the father. This affidavit, sworn December 9, 2015, states at paragraphs 18 and 25 as follows: 18 That the Applicant and I agreed that a gross sum of $30,000.00 would be deposited to the family trusts for the purposes of supporting … [SN] while he was away at school. She has indicated as such in her financial statement. The Applicant’s income for the purposes of support would therefore be $330,435.00. 25 …(

a) As… [SN] has been taken care of in the deposit of funds to the Family Trust… [ 78 ] Having reviewed his affidavit, nowhere in it does the father refer to this as a without prejudice statement or as something that he was simply proposing on a temporary basis. It appears to be a statement of fact. I disagree with counsel for the father that his statement, in this affidavit, is merely a “concession” for the purposes of trying to achieve an interim result. It did not result in an order on the issue because no order was necessary.

The order which resulted was on the related support issues. [ 79 ] The father and mother gave testimony about this issue at trial. During cross-examination the father claimed that there was little communication between he and the mother. He said, therefore, there could be no agreement on this point. He claimed that this decision was made without any discussion. When asked directly about his words in his sworn December 2015 affidavit, his explanation was that this was only “meant” to be an interim basis.

He further said that he found “comfort” in the language of the interim order of LeBlanc, J., which says this order was without prejudice. [ 80 ] This explanation by the father is not believable. The without prejudice interim order of LeBlanc, J. dealt with interim support amounts and not the issue of $30,000.00 removed from the mother’s income. The father gave no rational explanation for what is clearly

stated at paragraphs 18 and 25 of his affidavit, which is, that this is an agreement and what the purpose of the $30,000.00 deduction was. [ 81 ] I am aware that testimony given at trial is what I must consider; however, I must assess all testimony for credibility. Again, the issue before me is whether there was an agreement between the parties. In particular, did the parties agree that the $30,000.00, given to SN, would be deducted from the mother’s income for calculation purposes for the years SN receives it for university.

Not all agreements, especially between parents, are reduced to writing. [ 82 ] I found the mother’s testimony to be entirely credible on this point. The unbelievable testimony of the father, that this statement in his affidavit should be seen as a “concession”, does not make sense. He could not adequately explain why he was now saying they never had a deal on this point. The interim matter went to a hearing and he conceded nothing.

Clearly, his motive is that he believes he can gain economic advantage by now denying this arrangement and telling the Court that they never had such an agreement. [ 83 ] Also, there was no evidence given by the adult child, SN. I would assume that if the parties intended that this arrangement might not be final, their son SN would have been advised as he would possibly have to keep every receipt for these years for accounting purposes. No such evidence was presented.

Unless SN was aware that this was a temporary arrangement, it is unlikely that he has kept every receipt necessary to do a final calculation now, should this arrangement be overturned. This exercise would likely require more receipts than just those needed for his income tax return. [ 84 ] Therefore, I decline to revisit this issue and find the parties did have an agreement. SN was expected to graduate in April 2019. The mother’s income should be reduced by $30,000.00 for each year money was given to SN for his education. I understand this to be a period of four years.

Her reduced salary would then be used for the purposes of any retroactive calculations. [ 85 ] In future, no such expense exists and therefore $30,000.00 would not be deducted from her income for support purposes starting in 2019. The parties have agreed that, starting in 2019, the mother’s income is $325,000.00. They have also agreed to $75,000.00 as the current salary for the father. They request recalculation to start in 2020. retroactive calculation of the mother’s income [ 86 ] The issue of the mother’s income, from 2014 to 2018, is contested.

The mother’s income needs to be divided into two distinct time periods. Her income has a similar basis for 2014 to 2017. I will deal with the 2018 income separately. The parties agree that statements made about the mother’s gross income, as outlined in paragraphs 21 and 22 of the father’s trial brief, are correct. I reproduce those paragraphs as follows: 21 …[L.A.N.’s] gross income is comprised of the following: (

a) Income from MUN for teaching This income is T4d to …[L.A.N.] each year and comprises part of her Employment Income (Line 101) of her personal income tax return). (

b) Business Income from Clinic work This is relevant for …[L.A.N.’s] 2014 income from January to August 2014 only as she incorporated her PMC in August 2014. Thus, from January 2014 to July 2014, …[L.A.N.] had Business Income. This can be found at Lines 162 (gross) and 135 (net) of …[L.A.N.’s] 2014 personal income tax return. (

c) Income from her Professional Medical Corporation (PMC) …[L.A.N.] incorporated her PMC in August 2014. Since that time she has taken an income from the PMC which is deemed as Employment Income to her and is included at Line 101 of her personal income tax return in each year from 2014 to date. (

d) Disability Income – 2016 only …[L.A.N.] was in receipt of disability income in the amount of $9,538.65. This income was not taxable income for …[L.A.N.] and thus this amount must be grossed up for income tax purposes. It is submitted that the grossed up amount if $19,001 calculated as follows: SSAG $278,682 Less Employment Income $259,680.00 [1] $ 19,001 Reference: Exhibit LAN #37, pages 116 to 120

SSAG Calculation, Tab 2 – Calculation of Disability Income 22 For purposes of her sabbatical year only (September 2017 to September 6, 2018), …[L.A.N’s] income is calculated as follows: (

a) Income from MUN – 90% of her salary …[L.A.N.’s] evidence in that regard was that her gross income from MUN during her sabbatical was 90% of $129,759 = $116,783. This equates to $9,731.92 per month. (

b) Income from Clinic …[L.A.N.’s] evidence was that her gross income from her Clinic work during her sabbatical was $191,924.18 – or $7,361.48 a month. Reference: Exhibit LAN #42 (

c) Other Income – Locum …[L.A.N.] also gave evidence that she took a Locum position in 2018 in which she earned gross income of $9,436 deposited to the PMC. Reference: Exhibit LAN #11 (PMC Income Statement – Revenue) [ 87 ] The mother formed a Professional Medical Corporation (hereinafter “PMC”) on August 13, 2014. The father is seeking to have items, expensed through her PMC, added back and included as part of her income. He relies on the comments of Mr.

Justice Wells at paragraph 98 of Gosse as follows: 98 Clearly, what guidelines 15 to 20 are intended to achieve, is recognition, as income available for child support, of all income over which the spouse has discretionary control, which would exclude amounts necessary to meet legitimate calls substantiated by the evidence, whether that income is recorded as being received personally or by a corporation.

Where that corporation is wholly owned by the spouse that can only mean 100% of the pre-tax income that is not subject to a retention requirement to meet an existing legitimate obligations of the corporation. [ 88 ] I believe this is an appropriate case for the mother, as well as the father, to revisit their pre-tax income and deductions. Both were self-employed for the relevant periods and they were writing off expenses for themselves as sole “employees”.

Revisiting pre-tax incomes and deductions is applicable to both of them. [ 89 ] The father agreed that certain basic expenses being written off by the mother are essential to her practice and he agreed to their deduction from her income. These expenses include items such as her required memberships, insurances, licenses and cell phone. [ 90 ] The father seeks to have other items she deducts as expenses added back to her income. These are as follows: advertising in 2014, OMA Insurance, Capital Cost Allowance (CCA) in 2014, “interest” in 2014, meals, staff gift cards, home/office expenses and donations.

The home office expense is only for the years 2015, 2016, 2017 and 2018. The father argued that these expenses are not necessary for her medical practice or career. He argued that that the mother has an office at the Janeway; therefore, she does not necessarily need a home office. He stated that entertainment or meals and staff gift cards are optional.

He further stressed that the OMA Insurance expense is not one that she is required to have and, while she chooses to have this, it should not be deducted from her income. [ 91 ] I agree that all of the contested expenses, with the exception of a home office, should be added back to the mother’s income. I will allow the home office expenses because she is a mother to four children, two of whom are still dependent and at home. She works long hours, does research, has to travel and work nights.

In order to maintain her career, she cannot possibly always be at the Janeway to do her work as well as enhance the lives of the children. She is currently a single parent. For example, one of her office expenses was a laptop which she said is used 80 percent for work and 20 percent otherwise. All of these items, in a modern world, are needed to be able to function as a highly stressed professional, such as a doctor, who is researching, writing and teaching at MUN, running a full time practice and keeping her children’s lives together.

It is not sensible to conclude that she can always go to her office to do work, which is often done late at night. This is not to say that a home office should be an appropriate expense in every case. [ 92 ] She had home office expenses for the 2015, 2016 and 2017 tax years. In 2015, the amount was $3,649.00, in 2016 the amount was $1,869.00 and in 2017 the amount was $2,177.00. I do not agree that these amounts should be added back onto her income for the reasons stated.

Since we do not know what her 2018 office expenses would be, for the purposes of our calculations, I will assume that office expense in 2018 would be similar to 2017 and therefore use the same amount as 2017. [ 93 ] To calculate the mother’s 2018 income, she received the following: 1. Sabbatical gross income (to end of September 2018) $213,982.20

2. Full MUN Income (October – December 2018 approximate) $ 33,899.00 3. Locum during sabbatical (early 2018 – received in her PMC) $ 9,463.00 4. Clinic revenue $ 94,042.00 (estimate on 2015 numbers less 9% ($ 8,464.00) reduction to NLMA 0065 expected) $ 85,578.00 TOTAL: $342,922.00 [ 94 ] This $342,922.00 does not include required practice deductions that the father accepts as the mother’s legitimate expenses.

For 2018, he estimates her required memberships/insurance at $14,174.00 (similar to 2015), telephone at $1,342.00 (similar to 2017), travel at $3,400.00 (similar to 2016), MUN Administration fee at $13,713 (similar to 2015 and includes: $940 for her sabbatical period and $11,833 for her fees). These numbers were based on numerous exhibits presented at trial and are estimated. This trial concluded prior to the end of the 2018 year, so this is the best information available for this purpose. Therefore, the father agreed that the mother’s estimated acceptable 2018 expenses total $35,929.00.

For her 2018 income, he proposed: $342,922.00 - $35,929.00 = $306,933.00. I also agree that these deductions are essential and her income should be reduced by this amount. [ 95 ] Again, I estimate her office expenses to be about the same as 2017 or $2,177.00. Deducting this amount from her income $306,933.00 - $2,177.00 = $304,816.00.

Therefore, I find her total allowable expenses are $35,929.00 plus $2,177.00 totaling $38,106.00 for 2018. [ 96 ] The following is a table outlining what I consider to be her appropriate income for each year indicated: Year Total Income Before Deductions Additional Expenses/ Deductions Adjusting Income Total Total Less $30,000 to SN 2014 $360,306 $10,511 $370,811 $340,817 2015 $332,456 $ 9,447 $341,903 $309,743 2016 $266,535 $ 8,377 $274,912 $243,831 2017 $328,582 $ 9,124 $337,706 $307,706 2018 $342,922 ($38,106.00) $304,816 N/A [ 97 ] With respect to the above table, please note that the mother’s required practice deductions, which have been agreed to, and which I endorse, have already been removed from her total income prior to the 2014 to 2017 calculation.

The 2014 to 2017 numbers above reflect the addition of expenses which should be added back to her income as not required for her practice. The last column denotes the removal of $30,000.00 per year as agreed between the parties for SN’s education expenses. I believe these numbers also include the Universal Child Care Benefit (“UCCB”) the mother received in 2015 and 2016. In 2015 it was $2,160.00 and in 2016 it was $1,081.00. Pursuant to a section 7(4) of the Federal Child Support Guidelines , S.O.R./97-175 (the “ Guidelines ”), the UCCB shall not be taken into account in determining the amount of a

section 7 or special and extraordinary expenses calculations. The father’s income [ 98 ] I have reviewed the father’s income at his various employers during the period of the marriage. From the date of separation in 2014 until September 2018, the father’s sole employer was the Investors Group. During this period, the father had two roles at the Investors Group. This was always a commission-based income. The father initially had a role as a financial advisor, but in June 2016 he took a job within the company as a divisional director. In both instances, he was a life insurance representative.

He told me that he moved into the director’s position because he was struggling as a financial advisor and a life insurance representative, and thought there would be more money and a more stable income as a director. [ 99 ] The father gave evidence as to what his income was, as well as mandatory expenses required by Investors Group that needed to be deducted from his income. In particular, he told me that there are certain expenses required, such as CPA fees and his license, that need to be deducted from his gross commission income. The father summarized his income, less expenses he says should be deducted.

The amounts listed below represent what the father says should be his income for the years listed: • 2014 - $65,055.00 • 2015 - $56,495.00 • 2016 - $62,798.00 • 2017 - $24,243.00

[ 100 ] By September 2018, he took a full time job at Scotiabank. This is a set salary of $75,000.00 per year plus a $5,000.00 bonus signing fee. Therefore, he proposed his income for 2018 as: $39,715.00 ($13,115.00 - Investors Group only to September 2018, plus income from Scotiabank September to December 2018).

The father stated that his expected 2018 income is a total of the Investors Group and Scotiabank including their $5000.00 signing fee, which in total equals $39,715.00. [ 101 ] In written submissions, counsel for the mother mentioned that the father did not have most receipts to prove the deductions he claims. They argued that, for this reason alone, especially since he is a professional accountant, none of these deductions should be allowed.

They also described his deductions as “excessive” and “enormous”. [ 102 ] Counsel for the mother focused their argument on seeking a deemed income of $100,000.00 to the father. They argue he earned $100,000.00 in 2011 and $117,013 in 2012, and was hoping to earn at least $150,000.00 at Investor’s Group within a year of working there.

Their conclusion is that he can be deemed to earn $100,000.00 per year on this basis and want $100,000.00 to be his new deemed income. [ 103 ] The only other evidence presented at trial related to “deeming” an income to the father was a two page exhibit presented by the mother from a website called “glass door”. Page one is entitled “Chief Operating Officer Salaries in Canada” and states that the average base pay for this role is $228,000.00 per year. The jobs used to create this amount appear to be in Ontario.

The second page is entitled “Comptroller Salaries in Canada” and states that the average base pay for this job is $125,000.00 per year. It mentions a company called “Hydro One” where the salary is $144,988.00 and “Work Safe B.C.” where salaries are about $254,000.00 - $279,000.00. Counsel for the mother stated, on the record during trial, that he is aware this printout is “of limited value”. Counsel for the father said this document described jobs on the mainland and challenged its validity in general.

Upon cross-examination, the mother said salaries in this website are “self-reported” and conceded that none of these jobs were in Newfoundland. I am uncertain of its authors, research base or origin. [ 104 ] I decline to deem an income to the father. First, there must be credible evidence presented upon which to base imputation of salary. I do not have such evidence in this case. Pursuant to the case of Wiscombe v.

Wiscombe , 2018 NLCA 36 , our Court of Appeal, at paragraph 68, states as follows: 68 …We emphasize that the amount of income imputed should be connected to the basis for spousal support insofar as the evidence permits; absent a connection, the amount imputed could be viewed as having been arbitrarily selected. In this regard, we refer to Drygala at paragraph 44: 44

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence. [ 105 ] Second, I find that the father made career changes during the marriage with the full knowledge and consent of the mother. He left TC Media because her career and her overtime hours had to come first.

While I believe he may have stayed at the Investor’s Group longer than he should have, he is now in a $75,000.00 a year job with a $5,000.00 signing bonus since September 2018. I cannot find that he is deliberately underemployed. This is an inappropriate case to deem an income to the father. [ 106 ] With respect to the father’s income, I do find this an appropriate case to disallow many of his claimed expenses and add them back into his income. Like the mother, he too was self-employed and wrote off many expenses for income tax purposes. He is a professional accountant.

He did not provide most receipts to support his deductions, except a Scotiabank card statement. Without being provided with the appropriate documentation, which he is well aware is required, I cannot properly assess the deductions he claims. [ 107 ] Therefore, I am disallowing most of these deductions for the years 2014 to 2017, inclusive, except for his CPA fees and Newfoundland and Labrador licence, which he told me were required for him. His Newfoundland and Labrador licence is $135.00 per year.

His CPA fees are $1,169.55 for 2014-2015 and $1,190.25 for 2017. [ 108 ] In Court Exhibit LPN#8, he lists 35 different types of deductions. Some of these include: bond premium, miscellaneous deductions, Board of Trade luncheon, E & O, long distance, photocopies. One of his deductions is for “vehicle expenses”. For 2014, his vehicle expenses were $7,362.00, in 2016 it was $3,943.00 and in 2017 it was $10,149.00. He told me that he tracks mileage, but CRA does not require an actual log of every trip.

He could not recall what percentage of vehicle expenses he was writing off, but did state that CRA does not allow him to write off 100% of vehicle usage, only the business portion. [ 109 ] I therefore calculate the father’s income from 2014 to 2017 as follows: Year Salary After Deductions Deductions Added Back to Income Total Income 2014 $64,055.00 $10,045.99 $74,100.99 2015 $56,495.00 $17,594.15 $74,089.15 2016 $62,798.00 $16,778.88 $79,576.88 2017 $24,243.00 $27,110.95 $51,353.95 [ 110 ] In 2018, the father only worked at Investor’s Group for part of the year.

In September 2018, he commenced work at Scotiabank for a set salary. He claims his Investors Group income for 2018 is $13,115.00. Again, the same types of deductions and issues I have with 2014 to 2017 also apply here. I would therefore add back most of his expenses, except his CPA fees of $1,190.00 and Newfoundland and Labrador license of $125.00. Therefore, I calculate his 2018 Investors Group income as follows: • $13,114.79 + $8,436.37 = $21,551.16 • Adding $21,551.16 to his predicted Scotiabank income for 2018 of $39,715.00, his total income for 2018 is $61,266.16

Year Salary after Adjustments 2014 $74,100.99 2015 $74,089.15 2016 $79,576.88 2017 $51,353.95 2018 $61,266.16 2019 $75,000.00 [ 111 ] To summarize, these are the incomes that I calculate for the father (these figures do not include child support or spousal support received): retroactive special expenses [ 112 ] Both parties seek proportionate sharing of retroactive special expenses since the date of separation. They have agreed to share some items. [ 113 ] Amounts claimed by the mother are quite high. In final written submissions, counsel for the mother have abandoned her 2014 claim for “special expenses”.

She initially proposed proportionately sharing the following amounts for outstanding special expenses.

In final written submissions, counsel for the mother abandoned her 2014 claim for special expenses. 2014 $15,076.40 2015 $32,183.72 2016 $23,216.25 2016 $10,891.13 2017 $15,791.00 [ 114 ] In addition to extra-curricular activities or advanced placement (AP) courses in high school, the mother claimed items such as back to school supplies, Halloween, shoes, clothes, hockey equipment and swim or sports gear, skates and childcare, to name a few of many, many items. [ 115 ] The father also claimed that he is owed money for extra-curricular expenses since the date of separation.

Amounts claimed by the father are much smaller and may be summarized as follows: Paid by the Father with Request for Contribution from the Mother (derived from LPN#7, LPN#9 and LPN#10) 2015 BN Rugby $233.18 BN/SN Phone $3,736.63 KN Camp $150.00 Phone $1,075.42 HN Hockey $580.00 2016 BN/SN Phone $3,882.57 KN Phone $466.27 Dance $397.26 2017 BN/SN Phone $3,381.58 KN Dance $1,332.56 2018 KN Dance $202.02 [ 116 ] The mother agreed to proportionately share all expenses claimed by the father in the previous paragraph, except the cell phone amounts.

She argued that cell phone expenses do not qualify as special and extraordinary expenses. She also pays child support to the father. I agree that cell phone expenses do not qualify as special and extraordinary expenses and decline to include them as a shared cost. Gray, J. in Watson v. Watson , 2015 ONSC 2091 , did not allow cell phones as an extraordinary expense contemplated by s. 7 of the Guidelines .

As cell phones are currently a regular part of everyday life, it is appropriate that they are treated like shoes or clothing and paid from the basic monthly child support. [ 117 ] I endorse the consent of the parties to proportionately share all other items listed above from 2015 to 2018 by the father. Therefore, the amounts allowed are: • 2015 - $ 963.18 • 2016 - $ 397.26 • 2017 - $1,332.56 • 2018 - $ 202.02 [ 118 ] The more contentious issue is which items qualify as special and extraordinary expenses as claimed by the mother. The father agrees to proportionately share certain items listed by her.

Here is a list of items the father agrees to proportionately share: Paid by the Mother which the Father Agrees to Proportionately Share 2014 N/A N/A N/A 2015 BN Rugby $6,254.08 Driving $1,580.00 Tutor $380.00

KN Dance $1,255.60 Music $910.00 Swim $11,391.80 HN Soccer $795.00 Music $300.00 TOTAL $22,866.48 2016 BN Hockey 400.00 Rugby $4,376.91 Driving $60.00 Tutor $290.00 KN Dance $1,123.00 Swim $2,259.87 Trips $803.27 HN Hockey $1,529.74 Swim $743.00 Baseball $400.00 TOTAL $11,985.79 2017 BN Rugby $668.52 KN Swim $3,745.00 Trips $1,132.80 Tutor $100.00 HN Soccer $615.00 Hockey $575.00 Baseball ($175.00) refund TOTAL $6,661.32 2018 BN Tuition $1,305.03 KN Swim $80.00 Trips $250.00 Tutor $270.00 Exam Fees $390.00 Driving $411.60 HN Soccer $495.00 Hockey $600.99 Travel $1,050.00 TOTAL $4,852.62 [ 119 ] The following table shows total amounts claimed by the mother for special expenses, less special expense amounts the father agrees to proportionately share.

For each year, the deficit is shown at the end. I will have to review items that comprise the deficit and decide whether they are allowable special expenses Special Expenses Retroactive Adjustment Year Amounts Claimed by the Mother Amounts the Father agrees to Share Special Expense Deficit Claimed by Mother 2014 N/A N/A N/A 2015 $24,216.25 $11,985.79 $12,230.45 2016 $24,216.25 $11,985.79 $12,230.45 2017 $10,891.13 $6,661.32 $4,229.81 2018 $15,791.00 $4,852.62 $10,938.38 [ 120 ] There is a lengthy list of items in each year which make up the “deficit” claimed by the mother as special expenses.

As is often the case in any couple with children, one person is often the main “buyer” for the children’s needs such as clothes, shoes, back to school supplies and most sports equipment. In this case, it is evident from testimony at trial, that the mother is that person. She is usually the person who sends the small amounts of money needed to school for activities or buys most clothing. As the mother is the higher income earner, and there is shared parenting, she pays him child support. [ 121 ] Her issue is that she still ends up doing the vast majority of spending to support the daily needs of the children.

The father does also buy some items and provides for the children. The point is that she appears to purchase the majority of items, pays for most school fees and back to school supplies and most clothes, shoes and sports equipment. She wants these costs retroactively shared as extraordinary expenses. There are many types of items she seeks to now retroactively proportionately share.

The question is whether they qualify under the Guidelines as special and extraordinary expenses. [ 122 ] Traditionally most men are the higher earners and women are receiving child support for the care of children upon marital breakdown. Often, as in this case, the women do most purchasing or buying for the children. Items which become “questionable” or “borderline” as to whether they are special expenses are often declined and the person receiving child support (often the mother) is directed to use basic child support for this purpose (see: Sarro v. Sarro , 2011 BCSC 1010 , Chambers v.

Chambers , 2011 SKQB 20 and Clark v. Clark , 2012 ONSC 1026 ). Here the mother is paying considerable child support and is also the main purchaser for the children. This is the reality of this couple. Their roles, in the future, will likely remain the same.

[ 123 ] Two particular items that could be special and extraordinary expenses, namely Feildian soccer and Xtreme hockey for HN, are contested. The father said that he was not consulted and, in any event, these are too expensive so he refuses to proportionally share them. The mother seeks to have them shared as HN struggled with their separation to the point of needing counselling. He is an excellent athlete and a star hockey player. He loves these events and they have boosted his emotional well-being and his confidence at a difficult time. The mother believes he would be devastated to be removed from them and that the parties can afford them. [ 124 ] The Guidelines at

section 7 define special and extraordinary expenses as: Special or extraordinary expenses 7(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. Definition of “extraordinary expenses”.

(1.1) For the purposes of paragraphs (1)(

d) and (f), the term extraordinary expenses means (

a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (

b) where paragraph (

a) is not applicable, expenses that the court considers are extraordinary taking into account (

i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (

v) any other similar factor that the court considers relevant.

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit . [ 125 ] In general, special expenses must be necessary because they are in the child’s best interests, and, reasonable given the means of the parents and the child, and considering the family’s spending patterns before the separation. The application of

section 7 of the Guidelines is discretionary. In particular, section 7(2), which deals with proportionate sharing of expenses, provides guidance but is not an absolute rule (see Rayes v. Dominguez-Cortes , 2018 ONSC 6580 and Davis v. Davis , 2018 ONCJ 53 ). [ 126 ] In Yeates v. Yeates , 2007 CarswellOnt 2107, 156 A.C.W.S. (3d) 877 (Sup. Ct. J.) , affirmed, 2008 ONCA 519 , the court fixed the father’s proportionate share of expenses, leaving it to the mother to apply funds as she deemed appropriate. This was a case where the mother’s desired

section 7 expenses were seen as unattainable. [ 127 ] What is a “reasonable” expense for children primarily results from a determination of lifestyle and the means of the parents. In this case, both parents are good income earners. There are four children ranging from university to elementary school and all of their costs must be considered. [ 128 ] With respect to Xtreme hockey and Feildian soccer for HN, I must consider the fact that, historically, HN played soccer and hockey, and excelled at these sports. HN went through a difficult time following the marriage breakdown.

Due to symptoms of emotional distress he had to attend the “It’s Okay” program. The mother enrolled him in additional soccer and hockey, and he thrived. The father had some difficulty recognizing the emotional trouble the youngest child was having with their breakup. His main contention about sharing these expenses is that he was not consulted about HN’s participation in these activities. [ 129 ] I find that Xtreme hockey and Feildians soccer are appropriate expenses to proportionately share. This is a very high conflict divorce which obviously greatly impacted HN’s well-being.

These activities assisted in his recovery and were financially within the reach of these two parties. HN continues to thrive in these activities. Below is a table summarizing the total cost: Year Activity Cost 2015 Feildians Soccer $325.00 Xtreme Hockey $627.00 2015 TOTAL $952.00 2016 Feildians Soccer $0.00 Xtreme Hockey $345.00 2016 TOTAL $345.00 2017 Feildians Soccer $615.00 Xtreme Hockey $1,760.00 2017 TOTAL $2,375.0

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