M.E. v. K.K., 2022 ONCJ 509

ONTARIO COURT OF JUSTICE CITATION: M.E. v. K.K., 2022 ONCJ 509 DATE: 2022/11/07 COURT FILE No.: Brampton 1225/19 BETWEEN: M. E. Applicant — AND — K. K. Respondent Before Justice A.W.J. Sullivan Heard on August 22 to August 26, 2022 Reasons for Judgment released on November 7, 2022 Ms. Fadwa Yehia........................................................ counsel for the applicant, Ms. M. E. Mr. K. K. ....................................................................................................... on his own behalf SULLIVAN, J.: [ 1 ] This is the decision from a trial between Ms. E. age 47 and Mr. K. age 50.

The parties have been separated since 2017 at which time they entered into a separation agreement to govern their parenting time and support issues child and spousal. [ 2 ] The pleadings commencing this matter were a motion to change filed by Ms. E. dated December 2019. Mr. K. filed a Response dated February 28, 2020. [ 3 ] The changes sought are to a Separation Agreement signed by the parties in December 2017. As such the case management Judge, Justice Cheung, deemed the litigation to proceed by way of Rule 8

(2.1) Application. [ 4 ] The Separation Agreement was filed with the Ontario Court of Justice by Ms. E. on December 13, 2019. This was done to enforce the provisions for both child and spousal support in the parties’ Separation Agreement. This issue forms part of this trial. [ 5 ] The parties apparently do not speak directly to each other, although they have two teenage children. The children are L.K., born […], 2008, and Z.K., born […], 2013. [ 6 ] Ms. E. seeks several changes to the Agreement, decision-making, parenting time schedule, travel permission, documents, child support base amount and

section 7, spousal support and retroactive adjustments. She asks the court to impute income to Mr. K. Positions of the Parties: [ 7 ] Ms. E. argues that the terms of the Separation Agreement as it pertains to decision-making and parenting time no longer address the children’s best interests.

[ 8 ] Mr. K. argued that the weekly parenting

schedule and the holiday

schedule should remain in place and other times for arranging international travel with his daughters. His main concern in the trial was the financial issues although he opposes most of the requested changes to the parenting time and decision-making for the children. [ 9 ] Mr. K. is seeking a whole sweeping change of the spousal support paid to Ms. E. back to the date of signing of the Separation Agreement. This he claims is based on two grounds. First, he argues that he was unemployed when he agreed to spousal support and signed the Separation Agreement and second, he claims he has subsequently learned that Ms.

E. has assets from which Mr. K. claims income should be imputed to her. Based on this he argues that Ms. E. is not in need of support and had he known of her assets he would not have agreed to pay spousal support. [ 10 ] Exhibits 16 and 30 place Ms. E.’s assets at about $1,430,000.00 to $919,730.00 mainly in equities between December 31, 2020 to August 19, 2022. [ 11 ] Mr. K.’s assets were filed in Exhibit 68 and he has them in three accounts, an investment account with $96,000.00, an RRSP account with $127,000.00 and a LIRA with $110,000.00. [ 12 ] They both own homes in Mississauga, Ontario that they live in.

Each has a mortgage on their respective property. [ 13 ] The parties both agreed that I should accept for the truth of the contents a Voice of the Child Report completed May 25, 2022. Tab 9 to the Trial Brief. [ 14 ] Each party argued that I should impute income to the other. [ 15 ] Ms. E. argues that Mr. K. supplements his T4 income with investment income, day trading and trading in Cryptocurrency. She also argues that he failed to disclose significant financial disclosure and argued that as such I have the discretion to attribute income to Mr.

K. beyond his T4 income of $89,000.00 with a financial firm. [ 16 ] Mr. K. argues that Ms. E. has the ability to generate income from her investments and that spousal support to her be retroactively adjusted to just days after signing their Separation Agreement. This he argues is based on two reasons. One, his unemployment at the time of signing the agreement and two, Ms. E.’s ability to earn income from her investments. [ 17 ] Each agree via their respective evidence that the bulk of investments came from the sale of their matrimonial home in 2018. It sold for 1.8 million. Mr. K. testified that Ms.

E. also received a small inheritance when her father died a few years after their separation. The main testimony I have considered in this matter : [ 18 ] Ms. E. is 47 years old and was born […], 1973. [ 19 ] She grew up in Lindsay, ON and is from an English/Arabic background. [ 20 ] She has a university degree in computer science and worked in developing banking programs in Canada and Bermuda where she and Mr. K. resided for a few years after their marriage. They were married on December 12, 1998, and separated in October 2016. [ 21 ] Ms.

E. describes her success in her field of computer programing IT consultant, assisting a banking institution in Bermuda develop an electronic banking system. She had no difficulties finding work back in Canada when they decided to return and at a point kept some work in Bermuda as she transitioned to full time work in Canada. She was successful and skilled at the time in her field. [ 22 ] She and Mr. K. were married for some 18 years. They have two daughters, L., born 2008, and Z., born 2013. [ 23 ] She described her idea of marriage as caring for the other and being supportive to each other as equals.

She stated that Mr. K. seemed to share this view at the start but then became more patriarchal in his view of their respective roles in their marriage with her doing household chores and his role as the income earner. [ 24 ] She testified that when she became pregnant with their first child, L., she worked up to her 8 month of pregnancy. [ 25 ] It was her plan to care for L. for one year then return to work. However, given L.’s anxiety and some post-partum depression that she experienced she did not return to work and has not worked since. [ 26 ] Mr.

K. at the time was laid off and assisted at first around childcare and the house until he found work and these tasks fell on her. Mr. K. is now and has been successful in work as an IT consultant mainly for financial institutions. [ 27 ] She recalled when they discussed her returning to work after the birth of L. that Mr. K. suggested it might not be the best idea as she was struggling with the care of their newborn and assisting with their home. [ 28 ] Mr. K. testified that he was supportive of Ms. E. working and assisted her to update her CV at the time. He stated that he always believed Ms.

E. would return to work as she enjoyed her career. This he claimed formed part of his thinking when he signed the Separation Agreement committing himself to spousal support and child support although he was unemployed. He was convinced that Ms. E. would find work shortly after signing the agreement. [ 29 ] In 2012 they moved to Mississauga and their roles settled into Mr. K. looking after their financial needs and all other home and childcare fell to her. [ 30 ] Ms. E. recalled that Mr. K. was laid off on three occasions during their marriage. They had a joint bank account and shared

expenses 50/50. [ 31 ] She recalled that Mr. K. was eventually working at HSBC Bank in 2016 and earning about $130,000.00 per year. He was laid off from HSBC in mid-December 2017. At the time they had purchased a house in Mississauga and were both on title. [ 32 ] They separated for the first time in 2011 as they could not agree on most things in their relationship. She moved to Toronto with their daughter L. at the time and Mr.

K. rented a place in Mississauga, ON. [ 33 ] After some counselling and some degree of family pressure to make the marriage work, they reconciled and purchased their home in 2012 and lived in it until its sale in 2018. [ 34 ] Their second child Z. was born to them on […], 2013. [ 35 ] I heard that they held unequal shares in their matrimonial home, 68% to Ms. E. and 32% to Mr. K. It was Mr. K.’s idea to have a marriage contract between them that reflected this split if they were to separate. This he pointed to in the trial as partial proof of his fairness in their relationship. [ 36 ] Ms.

E. testified that at the end of their relationship they were arguing over most decisions regarding their children whom she cared for mainly between them both. She recalls arranging on her own their doctor’s appointments, schooling and daily routines as well as taking them to and from school, appointments, and events. [ 37 ] Ms. E. recalled that on October 1, 2016, Mr. K. called her into the study of their home and told her he felt she was a neglectful wife to him, not obedient and that he did not care for her or love her anymore and that he was going to look for a new wife.

Evidence regarding the children: [ 38 ] After separation Ms. E. moved into her own place with her daughters. [ 39 ] She remembers that at the start, post separation communication and cooperation was civil between them. This changed about a year after separation. The arguments began over travel plans that she wanted to take with the children. [ 40 ] Ms. E. described her parenting style as a trusting parent, while she claims Mr. K. was authoritarian with the children, which he denied. [ 41 ] Ms.

E. stated that she attempted to develop the children’s moral compass to give back to the community and set healthy boundaries for her children. She feels she is a parent that shows love and listens and attempts to validate their feelings as needed and assist them to solve problems. [ 42 ] This she contrasted to Mr. K. and testified that he expects certain behaviour from them and would often use punishment as a means of control. This in particular he did with L. who often acted out because of her personality. L. has a diagnosis of ODD and ADHD.

She is often jealous of her sister and has directed anger to her. [ 43 ] Mr. K., according to Ms. E., would tell L. to behave more like Z. and this exacerbated the tension between the sisters. L. in the past would verbally attack her sister causing Z. to have some social anxiety. [ 44 ] Mr. K. has at times returned L. home to Ms. E. during his parenting time with both children as she was, according to Mr. K., extremely rude to him. Z. remained with him when he returned L. Mr. K. testified that actually L. agreed to return to her mother’s home. [ 45 ] Mr. K. did not entirely oppose Ms.

E.’s characterization of his parenting style. He suggested that he felt the children need structure and at times can be entitled. This he noted around international travel taken a few years back such that they feel this should be part of what they do often. [ 46 ] Ms. E. stated that she is the parent that has arranged the children’s medical needs and communicates with their school. She could not recall when last Mr. K. brought them to the doctors or had meaningful communication with their school to address the children’s needs. [ 47 ] Ms.

E. described how in 2021 L.'s school contacted her about her grades, organization work and at times her behaviour at school. It was suggested that she required an assessment and therapy/counselling if she was to continue at her school, the O.G. It was noted that L. gets defeated, and her work is impacted by this.

A letter from the school regarding this was filed, Exhibit 11 to the trial. [ 48 ] I heard that the child Z. did online learning for the past few years and this September 2022 was hesitant to return in person asking to keep the same teacher that she had last semester. [ 49 ] The children attend a private school named O.G. I heard conflicting testimony as to how the school was chosen and the decision made for them to attend this particular institution and payment for this. Apparently after the assistance of a third-party friend, an agreement was reached that the children would attend this school and Mr.

K. would pay the costs. This was to be a 1-year trial and Ms. E. would not be required to deal with the school. Mr. K. had made the suggestion that this Islamic school would be helpful to the children while Ms. E. disliked how they approached Islamic teaching. [ 50 ] Mr. K. suggests that he has not been consulted about the children continuing in high school at O.G. and that he gave Ms. E. notice that he cannot afford this cost that is not spelled out in the Separation Agreement as a

section 7 cost.

[ 51 ] Ms. E. described her daughters as follows: L. is beautiful, fun loving, has friends and likes the outdoors. She has always been anxious as a young child and often had tantrums at home. [ 52 ] L. fears people who may be ill and hospitals and often suggests she is not loved enough as compared to her sister causing L. to be verbally abusive toward Z. in the past. [ 53 ] I heard from Mr. K. that this difference between the girls has somewhat dissipated recently. [ 54 ] According to Ms. E. her daughter L. does well with a set

schedule in place and a parenting style that is not confrontational. [ 55 ] Z. was described as a very kind and sensitive child who likes art and paints and has friends. However, because of how L. at times has targeted her, Z. has developed some social anxiety around her sister. This has lessened in recent years to the point that the girls can now be left together on their own for a few hours at a time given their ages. Mr. K. stated that the children are often on their own when he is picking them up. [ 56 ] Given her behaviour the child L. was assessed in grade 2 to assist with school. Dr. S.

John conducted a psychological assessment and diagnosed L. as having Separation Anxiety Disorder, ODD, specifically fear of being alone or without her mother. This assessment dated September 15, 2016 was entered as Exhibit A for identification purposes. [ 57 ] A second assessment of L. was recently completed by Dr. Ghemraoui. [ 58 ] Dr. Ghemraoui testified at the trial and was presented as a participant expert witness with expertise as a psychologist with a specialty in educational assessments and ADHD. I found him to be an expert in this limited capacity.

He conducted an assessment of L. and presented his report dated August 13, 2021, Exhibit 9 to the trial. [ 59 ] In conducting this assessment, L. was tested for her intellectual capacity and emotional strength and he gathered and considered information provided from L.’s teachers and Ms. E. Dr. Ghemraoui attempted to involve Mr. K. in this process but Mr. K. refused to participate. [ 60 ] In his testimony he emphasized that L. performs well academically, test results indicate that L.’s cognitive abilities are good and at the same level overall with her peers.

However, her insight into her emotional well-being is not strong and she denies she struggles emotionally. This he stated is of concern that will impact her true educational potential as she moves forward with her high school and beyond. L. commences secondary school in September 2022. [ 61 ] L. has had emotional outbursts at home and at school and exhibits anxiety and inattentive behaviours in her classroom.

Her inattentive behaviour was noted over the last years during remote learning due to Covid. [ 62 ] Separation fears: L. reported fear of being separated from her parents and occasionally reports bad dreams about being away from her family. She reports being angry and breaks and throws things when mad. Ms. E. reported that she has targeted her sister feeling that somehow Z. is treated differently. [ 63 ] Hyperactivity and impulsivity and anxiety are reported and seen in L. both at home and at school.

He concluded that L. meets the diagnosis for a provisional finding of Attention-Deficit/Hyperactivity Disorder (ADHD) predominantly hyperactive/impulsive presentation. [ 64 ] Mr. K. when he testified and was questioned stated that he has never opposed the children being assessed. He did agree that he refused to pay for such services and wanted the children to attend the ROCK (Reach Out Centre for Children) as it was a free service and if cost were incurred he suggested he would use his benefits to cover some of these costs. [ 65 ] Mr.

K. noted that he is not convinced of the ADHD diagnosis and believes L. does not exhibit the earlier behaviour that supported the ODD diagnosis made years earlier. [ 66 ] When questioned he did admit to pocketing the insurance claim of about $1,600.00 from Dr. Ghemraoui’s invoice that his insurance reimbursed to him. He justified doing this as he claims he used the money to pay down some of the arrears he owes to the children’s school in this ongoing dispute with Ms. E. Recent parenting time with the children : [ 67 ] Ms. E. testified that Mr. K. has never had the children for the holiday

schedule as set out in their Agreement. Her concern is his cancelling and changing the

schedule to meet his needs. [ 68 ] During the Christmas holidays in 2020 Ms. E. did insist that the children be with him. Emails between the parties were entered at trial which indicate a struggle over this issue with Mr. K. indicating he could not take the children. [ 69 ] Recently as Mr. K. was upset with L., he has not contacted the children for days and recently a 7-day stretch when Mr. K. stated L. was rude with him and his wife at a visit. During the 7-day stretch he did not return L.’s messages to him. [ 70 ] In Mr.

K.’s testimony he contests changes proposed to the parenting plan and wants to maintain the conditions in the Separation Agreement that his approval be needed for the children to travel. [ 71 ] On the financial issues he argues for a recession of spousal support from separation and an adjustment of child support based on his changing income levels. As for

section 7 expenses, he testified that the children need not attend their current private school.

[ 72 ] Ms. E. provided Exhibit 13 a list of

section 7 expenses that she is seeking payment from Mr. K. as per the Separation Agreement which states he is to pay

section 7 costs. The listed costs date back to 2017 to 2021. They include costs for the children’s private school year 21/22 $15,812.50, healthcare 2018 to present $5,078.51, programs and school supplies $10,813.47, summer camps 20/21 $1,705.34. All the invoices associated with these

section 7 costs were attached to Exhibit 13. [ 73 ] On a go forward basis, Ms. E. seeks that

section 7 costs be shared proportionate to their respective incomes. [ 74 ] Mr. K. does not accept most of the

section 7 costs presented as legitimate costs for the children. [ 75 ] Regarding his parenting time, Mr. K. testified that several issues over the past few years has been caused by Covid and his concern for Ms. E.’s socialization with the children when they should have limited their circle of contacts causing them to contract Covid. This he points to as justification for his refusing travel requests. [ 76 ] In addition, he felt that Ms. E. and the children had taken four extensive and what he considered lavish trips just after separation and before the Covid lockdown.

This he objects to as he believes it gives his children the impression that they can ask for such trips and other expenses. He also feels that Ms. E. should be working instead of travelling. Since 2019 Mr. K. has declined to sign any travel authority for the children and as well a renewal for L.'s passport - emails were filed at trial regarding this issue. [ 77 ] When questioned Mr. K. did eventually admit that in 2019 he refused to sign a travel request as he wanted Ms. E. to sign documents for his Federal Tax Return having to do with the amount of spousal support he had paid her. Ms.

E. stated that she refused this as she disagreed with Mr. K.’s unilateral reduction of payments to her and did not want to leave any impression otherwise. Emails were filed Exhibit 46. [ 78 ] Regarding the midweek visits, he stated that Ms. E. knows full well that his work hours end at 5:30 p.m. and at times 6:00 p.m. making it difficult to pick up the children during the week at 5:30 p.m. [ 79 ] Mr. K. testified that recently when he picks them up, the children are on their own as Ms. E. is out. He has witnessed L. who is now 14 caring for her sister Z. more often.

He testified that although midweek visits are short they are important for his contact with the children during which time they interact with their step-siblings and stepmother and all eat a meal together. [ 80 ] He noted during these midweek visits there is little time to permit his daughter to complete any homework assignments. He also testified in relation to the children’s current school that the school has high standards, and the girls are given considerable homework assignments. He believes the school has not met the children’s needs culturally and academically.

His position is that they should change to the public school system as several of their peers have done according to his information. [ 81 ] In part he suggests their current school causes stress for his daughters and is one reason for his suggestion that they should attend public school. Other reasons is that they are not benefiting from what cultural and Muslim religious training the school suggested it offers, which was one of the reasons he initially wanted the children to go to this school. Mr. K.'s main reason, however, for changing the children’s school is financial.

He owes back fees and argues he cannot afford this cost any further given his responsibility for his new family that he must consider as well. [ 82 ] Mr. K. also testified that he had covered the cost of the children’s private schooling from August 2017 to January 2021 for what he claims was about $54,000.00. In June 2021 he sent a note to Ms. E. advising her that the children should be enrolled in public school for several reasons noted above. [ 83 ] Mr. K. also argued at trial that their Separation Agreement does not specifically state he was to cover the cost of private school and that

section 7 expenses were to be agreed to in advance per

section 5.8 and he claims he never agreed to private school for the children. He stated Ms. E. informs him in general regarding the children's needs in a form of FYI and not true consultation. [ 84 ] They both stated their communication directly does not exist and that it is mainly via email. [ 85 ] Mr. K. argued that Ms. E. has created issues for this litigation which she denied. I did receive evidence (emails) of the child L. being caught in the middle of this fractured communication on subjects regarding travel to the U.S. recently proposed, renewal of her passport and that Mr.

K. has involved both children about the costs of their schooling. [ 86 ] As for his not taking advantage of the holiday parenting

schedule as set out in the agreement or other times that Ms. E. has asked for his assistance in the care of the children, he testified that this was principally due to the known fear and anxiety of their daughter L. being separated from her mother. [ 87 ] Often when questioned about specific disputes regarding the care of the children and shown email exchanges between the parties, Mr. K. suggested that Ms. E. had created an issue and an email for court consumption. [ 88 ] I heard from both parents that their daughter L. has anxiety when away from her mother for extended periods of time.

This anxiousness was noted from a young age and is actually mentioned specifically in the parties’ Separation Agreement in relation to each party knowing this and such that they might have to adjust parenting time to account for this.

I heard that this manifests itself in L. phoning her mother often while away from her and L. not wanting to spend much more than 1 overnight away from her mother. [ 89 ] The Voice of the Child Report, dated May 25, 2022, Tab 9 of the Trial Record that each party asked me to accept for the truth of its contents notes the following regarding L.’s desire at this time regarding parenting time: • She reported that she enjoys going to her father’s home but would not want to increase her current time being Monday and Wednesday evenings and one overnight visit Saturday to Sunday every other weekend, she would like to have more control regarding

these visits and at times would like to stay with her mother as she sometimes does not like to be away from her mother and at times finds it hard to get assignments done when travelling to her Dad’s home. [ 90 ] The child Z. stated to the OCL that she was content with the present time with her father and would not like it increased, she is happy the way it is. [ 91 ] Both children reported no concerns living primarily with their mother. Support and income imputation: [ 92 ] Ms. E. argued at trial that she had never agreed to Mr.

K.’s suggestion of changing his spousal support obligations and level of child support. [ 93 ] Ms. E. entered as Exhibit 4 at trial a spreadsheet showing how Mr. K. began to make changes to his payments set out in the Separation Agreement from just after signing the Agreement. [ 94 ] In Exhibit 4 it records according to Ms. E. that Mr.

K. potentially owes $56,000.00 in spousal support up until December 1, 2020, and $42,450.00 in child support based on the Separation Agreement. [ 95 ] Exhibit 46 was filed which is a series of emails dated August 18, 19, 2019 between the parties on this issue. [ 96 ] December 2019 is when Ms. E. commenced this litigation and filed the Separation Agreement with FRO who began deducting from Mr.

K.’s employment the money owed after December 1, 2021. [ 97 ] I heard that FRO was garnishing the maximum permitted under the legislation and a FRO statement was entered as Exhibit 15. [ 98 ] I heard that at a motion brought by Mr. K. on June 11, 2021, that on consent the parties agreed, and Justice Cheung made an order to suspend Ms.

E.’s spousal support, and also suspended was payment regarding any arrears accrued to June 11, 2021 until a final order in this matter. [ 99 ] I also heard that apparently the parties agreed (although not in Justice Cheung’s endorsement) that if the above was agreed to each would pay half of the children’s school costs at O.G. and Mr. K. continue to pay child support. Also that Ms. E. would ask the school to put her name only in their records as the responsible parent to communicate with regarding school costs and invoices. [ 100 ] Ms. E. testified that Mr.

K. did follow this agreement until September 2021, then he reneged. She has since been paying for the children’s school costs. [ 101 ] She seeks compensation for this and that going forward

section 7 costs be shared proportionately. [ 102 ] The above amounts in Exhibit 4 are not contested. This issue for Mr. K. is that he argues the level of support arrears should be based on his lower income and importantly the Court should consider his 22 months of unemployment (during two periods of time) which existed when signing the agreement. He also argues that spousal support should be rescinded completely arguing that Ms. E. has income from her investments and that he always thought she would work after signing the agreement and the fact that she has not is a surprise to him. [ 103 ] Mr.

K. notes that he did make some catch up payments despite his income change as he was unemployed and then unilaterally adjusted support as per the Child Support Guidelines based on his income that had changed. These are accounted for in Exhibit 4. He raises this to show his attempts at living up to the Agreement when he could. [ 104 ] It is common ground at this trial that at the date of signing the Separation Agreement in which Mr. K. agreed to pay spousal support and child support he had just lost his job. Both parties had independent legal advice in preparing and executing the agreement. [ 105 ] Ms.

E. testified that from December 2019 she asked for financial disclosure from Mr. K., Exhibits 6 and 14 emails to this effect in order to assess his request and be fully informed. She argues today that she has not received completely all the needed disclosure and Mr. K. failed to be open and transparent regarding his financial situation in general. [ 106 ] Ms. E. testified that given her role in caring for the children with special needs, Mr.

K.’s non-cooperation in caring for them, his not assisting in expenses they require and her need to be retrained in order to find work are all factors that dictate that she is entitled to receive ongoing spousal support. Ms. E. claims compensatory support historically based on the length of their marriage, their caring roles for the children upon separation and that she was out of the job market for some 14 years. [ 107 ] She testified that she has drawn about $6,000.00 per month from her investment account Exhibit 16 to the trial from 2018 to 2022.

She has a mortgage on the townhouse that is in Mississauga, Ontario. Her 2021 Notice of Assessment places her line 150 income at $19,774.00. [ 108 ] Ms. E. testified to her efforts to retrain in order to locate employment. She has recently graduated from Sheridan College in the social work field concentrating on the resettlement of refugees in Canada. Her job search in this field has been challenging. She believes in part this may be because her overall education makes her more qualified than those currently employed as administrators in the agencies doing this work. [ 109 ] Ms. E. disagreed with Mr.

K.’s suggestion that she can again today find work with ease in the IT field. She stated her previous skills and knowledge base has been surpassed in today’s IT world with ever changing skill sets. She enrolled in an IT security program at Sheridan just as Covid took hold. It was a 4-year program and it went online as did her children’s schooling. Given her responsibility for

the children’s school and their care with little assistance from Mr. K. she could not continue in this program as it was too demanding. She noted that most IT jobs dealing with security systems demand being on call 24/7 and not something possible for her given her parenting responsibilities. [ 110 ] When questioned by Mr. K., Ms. E. went through Exhibits 19, 20 and 21 “a return ship program” that she attempted in order to reestablish herself in the IT job market. The demands she stated were too much given her care for the children. [ 111 ] Ms. E. stated that her marriage to Mr. K. has cost her emotionally.

She stated that Mr. K. involves the children in this litigation and has shown them court documents which have increased at times L.’s anxiety. L. is worried about money and their future and her daughter Z. often asks her if she is angry with her. [ 112 ] Mr. K. questioned Ms. E. about her investment statement stating that from 2018 to December 2021 she has withdrawn some $342,000.00 over this period of time. Ms. E. claimed she has not studied this investment closely and she knows she has withdrawn $6,000.00 per month to maintain her and the children’s needs as Mr.

K. has not lived up to his obligations as per the Separation Agreement. [ 113 ] Ms. E. testified that after the birth of L., Mr. K. did not ask her to stay home but that he did suggest that it might be too much for her to work given L.’s needs and Ms. E.’s postpartum. She agreed with Mr. K. that he did assist her to update her CV. [ 114 ] As for the division/split of their matrimonial home that was documented into their initial Separation Agreement with a 68% split to her and 32% to Mr. K., she agreed with him that this was his idea given each of their initial investment into the home. [ 115 ] Ms.

E. argued that since their separation and contrary to Mr. K.’s suggestion she has always attempted to seek his input into parenting decision for the children. She disagreed with Mr. K. that she just drops information on him more as an FYI rather than his input. She stated that he drags his feet when it comes to decisions such as the school stating that their daughter L. needed professional assistance or would face having to leave their program. [ 116 ] Ms. E. stated that Mr. K. agrees to

section 7 that she proposes but is not paying any of these. Mr. K. testified that there are several community-based programs that the children can be entered into that are not as expensive. He also feels that to some extent the children feel they can request expensive items as a right and should lower their expectations regarding lifestyle choices. [ 117 ] Ms. E. argued that Ms. K. refuses any program such as camps for the children or L.’s assessment if it costs money. He has never agreed to cover such costs always arguing that cheaper options are available.

A major example of this in this trial was the assessment by Dr. Ghemraoui of L. [ 118 ] I heard that Mr. K. suggested this be conducted by a community-based organization called the ROCK. [ 119 ] Ms. E. testified that the ROCK did not perform the assessment required by L. and that its waitlist defeated the urgent need to have L. assessed for her school. [ 120 ] Mainly via cross-examination of Mr. K., Ms. E. argued that contrary to Mr. K.’s suggestion, his income has always been more than he claims and that his spending/lifestyle has not declined. [ 121 ] In addition, Ms. E. argued that Mr.

K. has made income from day trading and did not disclose his cryptocurrency account and day trading. [ 122 ] Mr. K. at trial testified that his 22 months of unemployment in two blocks, between November 2017 to April 2018 and October 2018 to January 2020, should be a material change that the court should consider in changing support across the board. His position is that for a period of unemployment only child support should be payable and be based on minimum wage. Then adjusted from May 2018 to September 2018 when he earned $92,000.00.

Then again minimum wage from October 2018 to January 2020 as he was unemployed and then in January 2020 he found work with his current employer earning $85,000.00 to start and now he earns about $87,000.00 to $89,000.00 per year. His argues that spousal support to Ms. E. should have ended in January 2018. [ 123 ] He argued that his accounts produced show that he has had to make regular withdrawals from his savings and trading accounts to cover his child support, spousal support and school fees in addition to his own living costs and this was done during a period of 22 months of unemployment. [ 124 ] Mr.

K. was questioned about a few bank accounts that showed up on one of his financial statements then did not follow on the subsequent statement. He claimed this may be that the account had only pennies in it and he was not using it.

The money from the HSBC account that he was questioned on he explained it was moved to his current LIRA account reported on his financials. [ 125 ] As for his cryptocurrency, he argued this account has also ended...“has dried up and did not amount to much money.” [ 126 ] Regarding his spending pattern, as shown in his credit card account that he was questioned on and entered as an exhibit, he testified that his expenses were not extraordinary and that he also supplemented his income and covered his costs from his savings similar to how Ms.

E. argued that she has been required to withdraw $6,000.00 per month over the past to support herself and the children because Mr. K. was inconsistent in payment of his support obligations. [ 127 ] Mr. K. testified that he disclosed the dollar amount of his severance package before trial and paper documents with the same information a day into the trial at the court’s request. [ 128 ] When questioned regarding how he used funds from his investment account in which his share of the funds from the sale of the matrimonial home was deposited, he presented the details as set out in a document provided to Ms.

E. at the Trial Management Conference in March 2022 – entered into evidence as Exhibit 80 in this trial.

[ 129 ] This he argued shows that he has not been hiding his financial affairs and that the current lower balance is explained by his withdrawing funds to cover the down payment for the purchase of his current home in January 2022. [ 130 ] However, Mr. K. when cross-examined did admit that not all of his financial disclosure was complete, in particular: A.

He did admit when questioned on his personal bank account details (a deposit of $14,850 in 2021) from a Crypto trade and to not disclosing his cryptocurrancy trading account – (page 92 of Vol 3 Tab 4 of the Continuing Record ) of his current bank account shown to him. He argued that this account…“has dried up and did not amount to much money.” B.

He also did admit to not having an explanation for a $10,000.00 e-transfer into his personal bank account at page 101 although he felt this may have been funds received from his current wife to assist in the purchase of their current home as the deposit was around the time of this purchase December 30/31, 2021. C. Mr. K. did admit that he had operated a business in April to October 2018 named Compu Analytics. This he claimed is inactive today. This company was incorporated he explained as a requirement of his contract with RBC at the time and used for that purpose only. D.

In 2018 he earned through this company $35,627.00 from which he did deduct some expenses with the CRA and admitted that not all were actually incurred. (It was argued on Ms. E.’s behalf that this business income needed to be grossed up as is the common practice to level the tax implications for each party when one is self employed and the other’s income is not taxed). E.

He did admit to enrolling in day trading courses to improve his investment skills but despite making 3 to 4 thousand trades accounting for 6.38 million dollars in trades back and forth, that he was not successful in this process and that his balance in the investment account has not increased and that any activity regarding gains would have to be reported to the CRA independent of his control and would have appeared on tax documents disclosed. [ 131 ] Mr. K. disagreed with the suggestion that he provided inaccurate information about his investment account in his January 31, 2022 Financial Statement.

He pointed out that the change in the balance of this account was due to funds being withdrawn to cover the down payment of his current home in January 2022 and that details of this were provided to Ms. E.’s counsel as required and this was found in his Trial Management Brief dated March 5, 2022, entered as Exhibit 80 to this trial. [ 132 ] When Mr. K. was questioned that he was obliged to pay Ms. E. spousal support he stated that at the time that he agreed to do so he was not aware that Ms. E.’s assets would generate income of approximately $89,000.00 per year according to his estimates.

He pointed to Exhibit 22 which was a projection from Ms. E.’s financial adviser of annual income that might be generated from her financial portfolio. This he notes was from her own documents disclosed for this trial although not relied on by Ms. E. [ 133 ] He also argued that at the time of signing the Separation Agreement that part of his thinking was that Ms. E. would look for work as she had always wanted to work and that also she would have used her capital from the sale of their matrimonial home to purchase her current home and not mortgage that property as she has. [ 134 ] Mr.

K. also insisted through his testimony that he believed or was led to believe that if their income changed after signing the Separation Agreement that support payments would change. He pointed to an email from a lawyer at the time Exhibit 33 in support of this position and also stated that he interpreted

section 7 of their agreement to mean that spousal support would end after 36 months although Ms. E. might be unemployed. Note:

Section 7.1(

c) of the parties Seperation Agreement reads: K. and M. may, however, after a period of 36 months, require a review of the spousal support payments by way of mediation or arbitration in which event the other party shall promptly cooperate.

Section 7.1(

d) listed 4 conditions that if existed prior to the 36 months expiring spousal support could be amended or terminated. None of the conditions have occurred to date. Discussion and Decision

Children's Best Interests: [135] Ms. E. seeks several changes to the parenting plan as set out in the parties’ Separation Agreement. The major one is a change tothe joint decision-making and parenting time. [136] When asked to change parenting time, based on the parties’ agreement, I have to consider the below jurisprudence in this regardwhen I am asked to assess children’s best interests. Courts are not bound by parenting terms in domestic contracts although they may give an indication about parental intentions at the timethey were entered into. See: C. (M.A.) v. K.(M.), 2009 ONCJ 18; Libbus v. Libbus, (ONSC).

They can also bereflective of the status quo – an important best interests consideration. See: B.C.J.B. v. E.-R.R.R., 2020 ONCJ 438. The court has no jurisdiction to vary a separation agreement about custody. However, under

section 56 of the Family Law Act, it candisregard any provision in the agreement and make an order, if it is in the child’s best interests. Paulo v. Yousif 2011 ONCJ 841. From: P.D. v. M.C., 2020 ONCJ 323: 14 A separation agreement does not have the effect of an order and no material change is required.

The court has no authority to varya separation agreement about custody but can under the Family Law Act disregard any provision in an agreement and make an order if itis in the best interests of the children. 15 The court must consider first and foremost the best interests of children, while being mindful of the importance of parents'autonomy in making their own arrangements to resolve their parenting issues. Blois v. Gleason, (ON S.C.).

Section 56 of the Family Law Act will not apply unless the agreement qualifies as a domestic contract. See: B.C.J.B. v. E.-R.R.R., 2020ONCJ 438. In M.S. v. D.F.M.A., 2020 ONCJ 497, the mother resiled from temporary minutes of settlement that would have started overnight visits.In lieu of an enforcement motion the parties agreed to proceed with a final motion to change and allow the father to submit the minutesas evidence. The court found, while not binding, it was an implicit admission of a material change in circumstances and reflective ofparental intentions at that time regarding the child’s best interests. The court found:

a) While the court is not bound by the agreement, it should respect the agreement unless the agreement is not in the child’s bestinterests.

b) The agreement reflects the parties’ intentions about parenting at the time the agreement was made.

c) It is sound public policy that parenting agreements be encouraged. If the contents were simply ignored, it would eliminate anyincentive to negotiate them. From: Schmidt v. Amy, 2021 ONCJ 523: [46] Courts are not bound by parenting terms in domestic contracts although they may give an indication about parental intentions atthe time they were entered into. C. (M.A.) v. K.(M.), 2009 ONCJ 18; Libbus v. Libbus, (ONSC). They can also bereflective of the status quo – an important best interests consideration. B.C.J.B. v.

E.-R.R.R., 2020 ONCJ 438. [47] Further, while there is no presumption in favour of decision-making to either parent in any initial application followingseparation, the status quo – and avoiding the reckless creation of a new status quo- are important considerations at the interim custodystage. Cosentino v.

Cosentino, 2016 ONSC 5621 at paras 16 and 17. [137] From the above I can change the provision in a Separation Agreement if I find the evidence support setting aside provisions thatno longer address the children’s best interest. [138] I have also considered the following as regards to these parents’ current joint parenting decision-making agreement as set out intheir Separation Agreement: Best Interests – Useful questions to ask – C. (J.R.) v. C. (S.J.), 2010 CarswellNS 126 (N.S.

S.C.): • What does the parent know about child development and is there evidence indicating what is suggested to be known has been or will beput into practice? • Is there a good temperamental match between the child and the parent? • Can the parent set boundaries for the child and does the child accept those restrictions without the need for the parent to resort to harshdiscipline? • Does the child respond to the parent's attempt to comfort or guide the child when the child is unhappy, hurt, lonely, anxious, or afraid?

• Is the parent empathetic toward the child? Does the parent enjoy and understand the child as an individual or is the parent primarilyseeking gratification for his or her own personal needs? • Can the parent examine the proposed parenting plan through the child's eyes and reflect what aspects of that plan may cause problemsfor, or be resisted by, the child? • Has the parent made changes in his or her life or behaviour to meet the child's needs, or is he or she prepared to do so for the welfare ofthe child? I. Joint Decision-Making It should only be considered where both parents have a strong claim for custody.

Only then, should the court look at communication andcooperation. If one person’s behaviour is problematic, it shouldn’t be ordered. The Ontario Court of Appeal in Kaplanis v. Kaplanis, (ON CA), [2005] O.J. No. 275, sets out the following principlesin determining whether a joint custody order is appropriate: 1. There must be evidence of historical communication between the parents and appropriate communication between them. 2. It can’t be ordered in the hope that it will improve their communication. 3. Just because both parents are fit does not mean that joint custody should be ordered. 4.

The fact that one parent professes an inability to communicate does not preclude an order for joint custody. 5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must beable to be addressed on an ongoing basis. 6. The younger the child, the more important communication is. In Giri v.

Wentges, 2009 ONCA 606 which says: [10] Second, as this court has repeatedly held, joint custody requires a mutual commitment between parents to cooperate on matterspertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child. The OntarioCourt of Appeal in Kaplanis v. Kaplanis (ON CA), [2005] O.J. No. 275 has made it clear that an interim custodyorder and how it has worked is a relevant consideration for the trial judge. Ladesic-Hartmann v. Hartmann, (ONS.C.) Graham v.

Bruto, 2008 ONCA 260, the court of appeal stated clearly that the joint custody and parallel parenting option was not in thebest interests of the child of that family because the parents disagreed on too many important issues that affected the child’s bestinterests. Also in Roy v. Roy, (ON CA), [2006] O.J. No. 1872 The Court of Appeal has upheld joint custody or parallel parenting in the absence of reasonably effective communication between theparents only where it has been necessary to sustain a child’s contact with a parent who has been subjected to a campaign of alienation.

So, for example, such an order was upheld where a mother had laid down a pattern of resisting the father’s access and was found by thetrial court to be unable to appreciate the importance of the relationship with their children. See Andrade v. Kennelly, 2007 ONCA 898. Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one, that parent should not beable to use the conflict as justification to oppose a joint — or shared — parenting order. To do so allows an obdurate parent to engineer aresult in his or her favour.

However, where, as here, the conflict is extreme and there is substantial blame to be levelled against bothparents, a joint — or shared — custody approach is not appropriate. Geremia v. Harb (ON SC), 2008Canlii19764(Ont. SC). Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issuesaffecting the child’s best interests. See: Graham v. Butto, 2008 ONCA 260 ; Roy v. Roy, (ON CA), , [2006] O.J. No. 1872 (Ont. C.A.). In Ciutcu v.

Dragan, 2014 ONCJ 602 : Justice Sherr at paragraph 33 wrote the following about joint custody orders and specialneeds children:

In Kaplanis, the court emphasizes that it is particularly essential for parents to have good communication when a child is young. Thesame reasoning applies, if not even more, to special needs children. Their needs are complex and it is essential to their well-being thatthere should be an effective decision-making process in place for them. For these children, important decisions frequently need to bemade about medical treatment, supportive services, education and activities. They need stability and consistency in decision-making andconflict can be particularly harmful for them. See: Kenney v. Kenney, [2007] O.J.

No. 2564 (SCJ - Family Court). In Smith v. Robinson, [2007] O.J. No. 458 (SCJ), the court refused a request for joint custody for a child with selective mutism, findingthat there was not the necessary level of cooperation between the parties. The court found that the child required decisive, informed andconsistent parenting. Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection isnot required, and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235 , 2005 CarswellOnt 3209 (OCJ).

Theissue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the bestinterests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop, (ON SC), (ONS.C.). In S. (S.) v. K. (S.) 2013 ONCJ 432 Justice Sherr wrote that courts should assess the dynamics of a family when determining ifa joint custody order is appropriate. Particularly, the court should examine if the granting of such an order is:

a) more or less likely to de-escalate or inflame the parents' conflict;

b) more or less likely to expose the child to parental conflict; and,

c) Whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders forthe purpose of asserting control over their former spouse and children tend to be rights-based, overly litigious, unbending and the bestinterests of their children can be secondary considerations. For such parents, a joint custody order can be a recipe for disaster. It canbecome a springboard for that parent to assert control and make the lives of their former partner and children much more difficult. In paragraph 504 of Izyuk v.

Bilousov, 2011 ONSC 6451 , 2011 CarswellOnt 12097 (SCJ), the court writes: In the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children -particularly children already exposed to the upset of family breakdown - look to their parents for love, guidance, stability, protection, andconsistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.

In making any parenting decision, the court must consider the child’s best interests and the relevant best interest factors set outin subsection 24 (2) of the Children’s Law Reform Act. The court has taken these factors into consideration. [139] Through evaluation of the evidence I heard at trial and the above law I have come to the conclusion that some of the provisions inMs. E. and Mr. K.’s Separation Agreement as it address the children’s needs should be set aside as I set out below. [140] My reasoning for this is found in my findings based on the evidence heard.

Specifically, the following which meet the criteria asindicated in

section 24 of the Children’s Law Reform Act (CLRA). [141] Since separation in 2017 the children have predominately lived with their mother and their changing needs are being addressedby Ms. E. as she has done since separation. CLRA section 24(3) (a), (b), (d). [142] The parties effectively don’t speak directly with each other regarding the children’s needs. This is done principally throughemails, many of which were filed into evidence in this trial. They seem to be working in silos when it comes to the children. [143] Mr. K. did not endorse the statement when questioned about whether Ms.

E. was properly caring for the children and a goodmother, but the evidence shows that she has and is doing so. Mr. K. did not complain to any official in this regard nor did he seek tochange the children’s living arrangements; CLRA 24 (

h) and (i). [144] I find Ms. E. to be in tune with the children’s physical and emotional needs and has taken steps to address these when needed withtheir schooling and in the community. CLRA section 24(3) (h). This she has done at her own expense both in time and money. She paidfor the children’s school this year in order that this remain consistent for them. I find that Mr. K. approaches the needs of the childrenthrough a costs lens. This leads to debates with Ms.

E. and the children become secondary to the struggle between the parties over costsand their needs are lost in endless debates. [145] The children spend Tuesday and Thursday evenings 5:30 p.m. to 7:00 p.m. and every other weekend Saturday to Sunday oneovernight with Mr. K. The children are content with this as set out in the OCL VOC report. CLRA section 24 (3) e. This connection andtime with their father is important to them now and in the future. It supports their identity and cultural background. Mr. K. has much tooffer them in terms of his hard work ethic, knowledge and education.

The children have a good and supportive relationship with Mr. K.’snew wife and step-children. This is very positive. [146] I find that they have not spent much other free time with their father although the separation agreement has other holiday times tobe spent with him. I find that the evidence points to Ms. E. asking Mr. K. to have the children repeatedly over the years and he has notdone so. I find Mr. K. has not taken advantage of this and stated at trial that he actually had not focused on or studied this part of theSeparation Agreement. [147] I find that by Mr.

K. routinely not sharing the holiday time and having the children with him more than one night is a form ofcontrol by Mr. K. over Ms. E. Such holiday sharing would permit her some space to do things for herself. I find that Mr. K. relying onhis daughter L.’s anxiety about being away from her mother for any length of time as a convenient excuse. Yes, this poses difficultiesand challenges in caring for both children for more than an overnight, however, this is the heavy lifting required in parenting these

children with their unique needs. I did not hear from Mr. K. of any creative attempts he has tried over the years to work with this situation. I heard of difference in registering and paying for some basic summer camps and programs for the children with Mr. K. often not prepared to contribute to these items. I heard that he does not oppose the children attending but won’t contribute. CLRA 24(4)b. [ 148 ] Mr. K. has recently denied the children to travel to the United States and involved his older daughter in the issues of renewing her passport.

I point out here that I am not certain why the passport became an issue between the parties as paragraph 3.7 of their Separation Agreement gave Ms. E. permission to… “Obtain documents” for the children and provides Mr. K.’s consent in that clause. Granted the wording is not as clear as it might be regarding dispensing with Mr. K.’s consent. This is the second time in this trial that the parties at times are not fully aware of the content of their agreement. [ 149 ] Mr. K. was clear that he felt Ms.

E. and the children took several exotic trips just after their separation which gave the children the wrong impression that they were entitled to these events and costs in their lives. I did hear that recently he had concerns regarding travel in the context of the Covid pandemic, which was reasonable, however, when asked to sign for a passport renewal email exchanges filed at trial clearly established that he would not unless Ms. E. signed a CRA form pertaining to spousal support paid to her which is in issue in this trial. This unfortunately spilled over and involved their daughter L. in this dispute.

This might seem to be a minor issue, however, I also heard evidence that I accept, that Mr. K. also involved the children in his dispute with Ms. E. about paying for their private school. This I heard caused the children undue stress just when L. was to start her high school program and both were to return to in class learning after being online for the past 2 years. I also heard that Z. their youngest daughter was insisting on having her last year teacher again this year if she had to return in person.

The children’s school experience should not have the added stress as to where they might be going and whether the parents can afford to pay for their programs. This was selfish on Mr. K.’s part to have done this. I recognize the importance of this issue in managing his finances. However, the children should be shielded from this for the time being, such discussions can be saved for a few years down the road as they approach university. CLRA 24 (3) h. [ 150 ] In the end Ms.

E. has paid for the children’s schooling despite what I heard was an agreement that this was to be shared when the parties agreed to suspend FRO’s garnishment of Mr. K.’s spousal support payments to Ms. E. CLRA 24(3) i. [ 151 ] For years now all the major decisions have been made by Ms. E. and most day-to-day decisions. 24(3) (b), (h) [ 152 ] I find in assessing the evidence and issues and the parties’ credibility that Ms. E. has informed Mr. K. of issues involving the children, regarding their emotional needs, school concerns, assessments, travel requests, and document renewal. I do not accept Mr.

K.’s statement that the email exchanges and issues were a production for the court’s consumption. The exchanges as entered via emails are not all recent and are on a variety of issues. CLRA Section 24(3) (

c) and (h) [ 153 ] Mr. K. has not spoken to his children’s teachers recently or in the recent past about their performance and behaviour. [ 154 ] Mr. K. is unaware of who the children’s doctor is. [ 155 ] He questions his daughter L.’s ODD diagnosis but has not shown interest to have her reassessed. When contacted by Dr. Ghemraoui Mr. K. refused to participate in the assessment. [ 156 ] He showed little interest when L.'s school wrote indicating she was struggling and needed an assessment. He argued that any assessment should be via ROCK that had a waitlist and does not do psycho-educational assessments.

He then pocketed the reimbursement of funds he received from his work benefits for a portion of Dr. Ghemraoui’s invoice and has refused to pay any portion of the children’s school for 2020/2021. [ 157 ] From the above I find that the following order is in the children’s best interest. I recognize that the order I am making will not address the poor communication between the parents. However, it will streamline decisions that will be needed to be made for the children over the next 4 to 5 years or so as they approach their late teens.

Order Final – Decision making and Parenting time: [ 158 ] The Separation Agreement dated December 20, 2017 is changed in part as follows: • Parenting – (note not all sections in clause 3 have been changed 3.4, 3.13, 3.14, 3.16, 3.17 have not changed) •

Section 3.1, 3.2, 3.3, 3.5, 3.6, 3.7, 3.8 except Father’s Day and Eid, 3.9, 3.10 3.11, 3.12, 3.15 are set aside and replaced with: A. Ms. E. shall have the sole decision-making authority for the children’s L.K., born […], 2008 and Z.K., born […], 2013 welfare, which includes decisions about the children’s: - Education - Health/medical needs - Activities - International travel - Religious upbringing.

B. The children’s primary residence will be with Ms. E. in Peel, Ontario. C. Regarding any issue of mobility/relocation each parent must provide the other with notice as set out in

section 39 of the Children’sLaw Reform Act. D. Both parties shall have the same right to communicate directly with any service providers who provide service to the child (i.e.doctors). The consent of the other parent for such communication or for the service provider to release information, documentation orrecords to the other parent, shall not be required. This order shall be sufficient authorization for said release. E. Ms. E. has the authority to arrange international travel for the children L.

K., born […], 2008 and Z.K., born […], 2013, and as wellrenew or apply for government documents for the children, including their Canadian Passport without the consent of their father Mr. K. F. Mr. K.’s parenting time with the children shall be: • Alternating weekends Saturday from 5:30 p.m. to Sunday at 6:00 p.m. • Mid-week visits each Monday and Wednesday from 5:30 p.m. to 8:00 p.m. • Eid – holiday on the even numbered years from 8:00 a.m. to 8:00 p.m. • Father’s Day- If the children are not otherwise with their father they will be with Mr. K.

Father’s Day weekend from Saturday at7:00 p.m. to Sunday at 8:00 p.m. • Mr. K. shall provide to Ms. E. reasonable notice if he wishes the children spend additional time with him and both parents willconsider the children’s views when arranging this. Spousal Support Eligibility: [159] Mr. K. argued that his obligation towards Ms. E. as set out in

section 7 of their Agreement should not only terminate buteffectively be rescinded from shortly after signing the contract in December 2017. [160]

Section 7 of the Agreement indicates that Mr. K. will pay to Ms. E. $1,750.00 per month commencing August 28, 2017. [161] The agreement goes on to state that after a 36-month period of time has elapsed either may request a review of these payments.Section 7 (

d) states 4 conditions that could see spousal support being amended or terminated and that all agree have not happened. [162] As I noted above Mr. K. argued in support of this that: 1. He was unemployed at the time of signing the agreement. 2. He was not aware that Ms. K.’s assets would appreciate. 3. He was convinced when signing the agreement that Ms. E. would find employment as she enjoyed working. [163] I find that Mr. K. has not met the legal burden in his evidence that would support his request for retroactive termination, which ishis burden to prove. Subsection 37 (2) of the FLA sets out that an order for the support of a spouse or parent can be changed if:

a) there has been a material change in the dependant’s or the respondent’s circumstances; or

b) evidence not available on the previous hearing has become available. [164] The court has the power to discharge, vary or suspend a term of the order, prospectively or retroactively, relieve the payor from allor part of the arrears owing under prior orders and make any order under

section 34 of the FLA that it deems appropriate. [165] The person seeking a change in support must first establish the material change in circumstances before the inquiry proceedsfurther. A material change is a change such that, if known at the time, would have resulted in a different order. The sufficiency of thechange must be defined in regard to the overall financial situation of the parties. The fact that a change was objectively foreseeable doesnot necessarily mean that it was contemplated at the time of the original order: L.G. v. G.B., (SCC), [1995] 3 S.C.R.370.

The material change in circumstances must have occurred since the last court order. [166] Considering the above in relation to Mr. K.’s claim he was fully aware that he was unemployed when he signed the agreementwith independent legal counsel advising him. This is not an unforeseen event. [167] Regarding Mr. K.’s second argument, this also does not meet the legal burden of material change. Each received assets from thesale of the matrimonial home. This was known to all at the time. Whether Ms.

E. invested the same rather than purchase a home with thismoney was her option and as such was always open to her to do so. Mr. K. at trial expressed surprise that she mortgage her current homeand invested the money which appreciated. Both worked in the banking sector and are sophisticated and educated. This was an optionthat was foreseeable. [168] In addition, the fact that a party’s capital assets accrued in value goes to the determining income for spousal support purposes, noteligibility; see Leskum v. Leskum 2006 SCC 25, 1 S.C.R. 920 at para. 29.

[169] The fact that he was convinced Ms. E. would find work is also a situation along the same lines as above. It was known to him thatthis might not happen. In addition, in

section 7 of their Agreement dealing with spousal support there is no mention of any annual jobsearch disclosure linked to a review of spousal support. [170] In addition, I find relevant as part of this contract between the parties that their agreement in this

section makes no mention ofeither’s income. This is found in the child support

section 5.3 that states Mr. K.’s income at $134,761.00 and Ms. E.’s at 0. [171] I should note that in the spousal support

section a specific 36 months of support is set after which the wording is a review, nottermination. [172] This wording I find significant in this contract such that it is arguable that this insulates or removes the ability to review Ms. E.’seligibility for spousal support before 36 months even if there existed a material change, which I find there is none. [173] 36 months would bring the potential review date to August 2020 as August 28, 2017 is when the payments commenced althoughthe agreement was signed in December 2017. [174] At this point I need to answer:

a) Is Ms. E. eligible for spousal support from 2018 and today?

b) Does her ability to generate income from assets impact eligibility.

c) If she is still eligible, should I set the level of support if the parties’ income has changed since signing the Separation Agreement.

d) What are the parties’ respective incomes – imputing income. The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that before applying the Spousal Support Advisory Guidelines (SSAG),entitlement to support must first be established. In Beneteau v. Young, (ONSC), the court described three categories of compensatory support as follows: i. non-specific compensatory support (where a spouse’s ability to achieve self-sufficiency was comprised by career/job dislocation forthe family); Walsh v.

Walsh, 2006 CarswellNB 582 (Q.B.); ii. specific calculable disadvantage (where a spouse can point to a specific calculable overriding loss resulting from the marriage or theroles adopted in marriage) Spurgeon v. Spurgeon (2001), (ON SCDC), 15 R.F.L. (5th) 440 (Ont. Div. Ct.); iii. specific calculable and advantage conferred (where a spouse conferred a substantial career enhancement opportunity on the otherspouse): Caratun v. Caratun (1992), (ON CA), 42 R.F.L. (3d) 113 (Ont. C.A.). [175] Compensatory support – ongoing. I find from the evidence that Ms.

E. is eligible for ongoing spousal support based oncompensatory grounds given the role that each parent played in the family and the advantages and disadvantages conferred by these -See Bracklow, . [176] Justice McLachlin in Bracklow states: An entitlement to compensatory support may be established where a Spouse’s ability to achieve self-sufficiency has been compromisedby family commitments or where one spouse conferred substantial career advantage to the other. [177] I find that the evidence demonstrates that Ms.

E. suffered economic hardship and still does today as the primary caregiver to thechildren during the marriage and after the separation through to today. This claim is not exhausted at this time. [178] Ms. E. after giving birth to the children stayed home caring for them with little assistance from Mr. K. since separation in 2017. [179] Ms. E. gave up her career in the IT sector, an ever-changing field. She has not worked for some 14 years and is that much olderattempting to return to the workforce. [180] The child L. presented parenting challenges given her level of anxiety.

L. today still presents signs of ADHD although maturingand changing, in particular in her relationship with her sister. Z. was impacted by L.’s targeting of her which caused this child to haveemotional issues as well. [181] The children have just come off two years of online learning and are back in class which itself is a new challenge. The childrenstill need parental supervision as young teens. [182] Despite the time sharing set out in the parties’ Separation Agreement, Ms.

E. has been responsible for the care of the children overthe majority of all holidays and summertime since 2017, the year the parties separated. [183] She has been the parent to look after their daily needs, doctor appointments, school development and community activities. [184] Ms. E. has taken steps to retrain and has not yet firmly been able to re-establish herself in the job market.

[185] In Burns v. Burns 2022 NSSC 162 Justice S. Moreau noted from the BC Court of Appeal the following succinct review of theleading authority to understand compensatory support and the grounds for such: [50] Compensatory support is intended to provide redress to the recipient spouse for economic disadvantage arising from themarriage or the conferral of an economic advantage upon the other spouse.

The compensatory support principles are rooted in the“independent” model of marriage, in which each spouse is seen to retain economic autonomy in the union and is entitled to receivecompensation for losses caused by the marriage or breakup of the marriage which would not have been suffered otherwise (Bracklow, atparas. 24, 41). The compensatory basis for relief recognizes that sacrifices made by a recipient spouse in assuming primary childcare andhousehold responsibilities often result in a lower earning potential and fewer future prospects of financial success (Moge, at 861-863; Bracklow, at para. 39).

In Moge, the Supreme Court of Canada observed, at 867-868: - From Chutter v. Chutter 2008 BCCA 507Justice Rowles. [186] At this stage of the analysis, I need to address the argument raised by Mr. K. which is that Ms. E. should be able to supportherself from the assets received at the point of separation. This he argues would provide her with a standard of living needed to supportherself today. [187] Mr. K. points to the fact that Ms. E. has been able to do this without affecting the overall balance or value of her investmentsalthough she has been withdrawing $6,000.00 per month for some 4 to 5 years.

This he argues has met her needs. [188] The above I find ignores the obvious that Ms. E. was required to withdraw those funds as Mr. K. stopped living up to his supportcommitment and paid when he wanted at levels he suggested were correct with no or late disclosure of his overall assets. The fact thatMs.

E.’s investments have done well over the past several years is fortunate. [189] However, such an approach also ignores the principles of compensatory support as pointed out by Justice Rowles in Chutter v.Chutter supra - and that although one has high asset this does not preclude entitlement: In my view, the trial judge’s emphasis on his finding that the assets the appellant received in the division of property can provide herwith a standard of living comparable to that which she enjoyed during the marriage overlooks the principles underlying compensatorysupport where one spouse has been disadvantaged by the marriage or its breakdown relative to the other spouse.

As this Court heldin Tedham, at para. 60, a spousal support award based on compensatory principles should continue until compensation is achieved, evenif the recipient spouse has achieved a degree of self-sufficiency. In arriving at that conclusion, this Court cited Allaire, in which theOntario Court of Appeal rejected the husband’s argument that any disadvantages flowing from the marriage must defer to the fact thatthe wife, at the time of trial, was nevertheless able to earn a reasonable income (para. 21). That opinion was echoed by this Courtin Beese v. Beese, 2008 BCCA 396.

In Beese, the wife was awarded compensatory spousal support for the economic disadvantage shehad suffered as a result of the marriage, notwithstanding the fact that following the separation she had been living with, and supportedby, another partner and that, as of the date of trial, she was fully employed and earning an income not substantially less than that of thehusband. [80] Generally, the case authorities support the view that even in the context of high asset cases such as this one, entitlement tospousal support is not precluded: Metzner v.

Metzner (1997), (BC CA), 28 R.F.L. (4th) 166, 34 B.C.L.R. (3d) 314(C.A.); Francis v. Baker; R. v. R. (2002), (ON CA), 58 O.R. (3d) 656, 24 R.F.L. (5th) 96 (C.A.); Brown v.Rae, 2001 ABQB 809, 24 R.F.L. (5th) 293; Tauber v. Tauber (2001), (ON SC), 203 D.L.R. (4th) 168, 18 R.F.L. (5th)384 (Ont. Sup. Ct.), aff’d (2003), (ON CA), 64 O.R. (3d) 229, 34 R.F.L. (5th) 450 (C.A.); Macdonald v.Macdonald, 2005 BCCA 23, 10 R.F.L. (6th) 423; Spiers v. Spiers, 2003 ABQB 830, 48 R.F.L. (5th) 198; Martin v. Martin (2004), (ON SC), 12 R.F.L. (6th) 415, [2004] O.T.C. 1139 (Sup.

Ct.), aff’d (2006), (ON CA), 81 O.R. (3d)503, 40 R.F.L. (6th) 32 (C.A.); Greither v. Greither, 2004 BCSC 1183, 10 R.F.L. (6th) 338, aff’d 2005 BCCA 550, 22 R.F.L. (6th)10; Modry v. Modry, 2005 ABQB 262, 375 A.R. 198; and Hodgkinson v. Hodgkinson. For a

summary of these cases, as well as anumber of high asset cases in which the court has not awarded spousal support, see Lawrence A. Kahn and Sarah R. Picciotto, “AreThere Cracks in the Glass Ceiling?: A Survey of Spousal Support Awards in High-asset Cases since Moge” Continuing Legal EducationSociety of B.C. (Sept. 2006). [81] In Macdonald, the wife’s compensatory spousal support claim was not barred by the fact that she had received a large assetaward upon equal division of family property. Each party received approximately $4,000,000 at trial.

The wife was the primarycaregiver for the parties’ three children throughout their 11-year marriage and the husband earned approximately $2,500,000 per year atthe time of the trial. The trial judge awarded the wife lump sum spousal support in the amount of $750,000. On appeal, this Courtdismissed the husband’s appeal of the spousal support award… [190] Although Mr. K. has not made out a material change as noted above to support a rescission in spousal support from 2018 or thatMs.

E. is not now eligible for support, there is the need at this point to consider both parties’ claims that there is a material change inincome for Mr. K. and Ms. E. that would affect support levels both for child and spousal support. [191] Here the onus is on Ms. E. who is requesting an imputation of income to establish an evidentiary basis for such a finding: seeHomsi v. Zaya 2009 ONCA 322, 248 O.A.C. 168, at para. 28. [192] The test for imputing income for child support purposes applies equally for spousal support purposes. See: Rilli v. Rilli, (ON SC), [2006] O.J. No. 4142, (Ont. Fam. Ct.); Perino v.

Perino, O.J. No. 4298 (Ont. S.C.). The court looks at theamount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson, (ONCA). [193] Ms. E.’s Motion to Change has opened the door for a review of income across the board for both parents' regarding spousalsupport,

section 7 costs and with some caution monthly child support with notice and adequate disclosure. [194] Mr. K. argues that his income fluctuated since 2017 between periods of unemployment, partial employment and recently steadyT4 employment. He sets his income the year in question as follows:

2018 - $72,878.00 2019 - $10,799.00 2020 - $83,121.00 2021 - $88,506.00 2022 - $89,517.00 from Exhibit 67 Financial Statement of Mr. K. [195] Ms. E. did provide the necessary evidence to justify imputing some additional income to Mr.

K. at higher levels than he suggestedat trial but different than what was stated in the Separation Agreement for the 36 months as noted above. [196] The evidence that I accept is a combination of declared personal income from his tax returns, income from Compu Analytics, acorporation he operated for a contact with RBC that must be grossed up for taxes, his investment trading in cryptocurrency at least in2019 and finally an amount of appreciation on the yearly balance of his investment portfolio at 2% to be grossed up.

See grossing up: Where additional income is imputed to a parent who engages in cash, the undeclared income is “grossed up” to take account of its tax-free nature, notwithstanding the payor’s liability to be reassessed by CRA. See: Ali v. Williams-Cespedes, 2015 ONSC 3560. [197] I accept that Mr. K. was late in providing disclosure (complete details until trial of his 2019 severance package) and that he failedto disclose at all, in certain instances, such as his crypto trading. This permits the court to draw a negative inference and provides thecourt with a degree of latitude when imputing income – see Levin v.

Levin 2020 ONCA 604. [198] I did not accept deductions that Mr. K. claimed from his modest $35,000.00 corporate income in 2018 – see Haras v. Camp, 2018ONSC 3456 [199] This I have balanced with the need to not generalize across the board that Mr. K. was out to hide income intentionally. I agree thatoverall Mr. K. was slow in providing financial disclosure to Ms. E. before and during this litigation. This I find will go to costs inlitigation. [200] I agree he did not disclose his crypto account trading for 2019 and I will assume he continues this for 2020 at lower levels ofreturn.

This is highly speculative trading, and my review of the evidence does not show clear signs of these return in 2020 to the presentas that noted when Mr. K. was cross-examined about this account and returns for the year 2019. It can be classified as a form ofnonrecurring income; see Ewing v. Ewing 2009 ABCA 227 , [2009] A.J. No. 712 (Alberta C.A.). Also, I find the caution thatthis type of income cannot be a reliable source of evidence for the court to evaluate a payor’s capacity to earn. See - Future income not imputed to day trader as this is a risky venture and the payor shouldn’t be compelled to do it.

Past income earnedwas included in retroactive support analysis after deducting losses, carrying costs and interest on monies borrowed to fund this: L.B. v.P.E., 2021 ONCJ 114. The court should look at whether the investment was made in good faith in anticipation of profit and whether there was a reasonablelikelihood of profit. Kohlman v. Bergeron, 2015 CarswellAlta 2352 (CA). [201] In addition, for 2019, I accept that he should be imputed minimum wage of $30,000.00 but not on top of his declared $11,000.00which is too low given his ability to earn. I did hear that from time-to-time Mr.

K. was laid off in the industry in which he

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