ONTARIO COURT OF JUSTICE

CITATION: Scheurmann v. Grolway, 2021 ONCJ 503
DATE: 2021 09 23

COURT FILE No.: Kenora FO-16-35-02

BETWEEN:

Jasmine Scheurmann
Applicant
Respondent to Motion to Change

— AND —

Nicholas Grolway
Respondent
Applicant to Motion to Change

Before Justice E.J. Baxter

Heard on July 16 and August 26, 2021

Reasons for Judgment released on September 23, 2021

Kirsi Ralko.................................................................................. counsel for the applicant(s)
Beth White.............................................................................. counsel for the respondent(s)

Reasons for Judgment

Baxter J.:

[1] This is a Motion to Change, pursuant to rule 15 of the Family Law Rules the final order of Justice David Gibson dated December 13, 2017 (the final order) wherein he granted joint custody to the parties of their son, Grayson Robert Grant Grolway, born, […], 2016.

[2] Mr. Grolway commenced this Motion to Change on April 24, 2019. He is seeking to change the final order to permit him a two week on/off parenting time schedule in keeping with his new work schedule and his parenting time with his younger son, Kayden. He seeks other changes to the final order, and they will be addressed further below.

[3] Mr. Grolway asserted in his Change Information Form that a material change in circumstances affecting Grayson has occurred, namely, that Mr. Grolway has changed his employment, has moved back to Kenora, has a new child from another relationship, and the inability for the parties to get along and follow the final order.

[4] The trial in this case was rescheduled a few times in part due to a scheduling error and then because of COVID-19. Attempts to settle the matter failed, and the two day “in person” trial of this case commenced on July 16, 2021 and concluded on August 26, 2021 in Kenora.

[5] Primary care and control of Grayson was granted to the Respondent mother, Ms. Scheurmann, and final decisions regarding Grayson’s health, education etc. would be made by Ms. Scheurmann after [my emphasis] consulting with the Applicant father, Mr. Grolway.

[6] A detailed access schedule was also set out in the final order, including provisions restricting who may pick up and drop off Grayson and who may or may not be around Grayson, directed mainly at Mr. Grolway given he had a girl friend who Ms. Scheurmann did not want around Grayson.

[7] The access schedule set out was for Mr. Grolway to have Grayson overnights on Tuesdays and every second weekend, Fridays to Sundays, with extensions to Mondays if a Monday is a holiday from school. There was also provision for 2 non-consecutive weeks every summer, and all other times as agreed by the parties (paragraph 3(e)).

[8] A detailed holiday schedule was also in the final order that addressed all the major Canadian holidays and the parenting time assigned for each.

[9] Among other clauses, Mr. Grolway was to pay child support for Grayson in the amount of $685.87 per month starting December 1, 2017. The issue of extraordinary expenses, child support and arrears were not in contention in this case. Both parties agree there will need to be adjustments to the payments going forward given the income changes each party has had.

[10] At the time of the trial in this matter, Mr. Grolway was in arrears for child support, but he agreed to bring his account up to date with the Family Responsibility Office. This will be addressed in more detail below.

[11] It is worth commenting that effective March 1, 2021 the language in the Children’s Law Reform Act was changed such that the terms “custody” and “access” are no longer used. Instead such terms as “parenting time”, “primary decision-making responsibility” are used in the new version of the legislation.

Agreed Facts/Background

[12] The parties were never married. They were in a relationship that resulted in the birth of Grayson on March 30, 2016. Grayson has no special medical needs.

[13] The parties separated on April 23, 2017. The parties do not agree about the dates or whether they ever cohabited. It is clear they were at least on and off for a period of time after Grayson was born and did not cohabit prior to Grayson’s birth.

[14] The final order of December 13, 2017 was made on consent after Minutes of Settlement were agreed. Both parties were represented by counsel.

[15] Mr. Grolway, age 29, works as a crane operator. Prior to working at the New Gold Mine, Mr. Grolway was employed in Kenora at Jarnel Contracting as a crane operator. His salary as set out in his Financial Statement of July 15, 2021 is $79,040.04 per year. He was employed with Jarnel at the time the final order was made. During his time at the mine, Mr. Grolway earned $70,110.28 in 2018 and $94,300.08 per year in 2019.

[16] Mr. Grolway left Jarnel to take a higher paying job at the New Gold Mine in Rainy River. He commenced work at the mine in October, 2018. He was working a consistent two week on/off schedule. Mr. Grolway stayed in Kenora during his two weeks off.

[17] Between November 2018 and December 2020, Mr. Grolway asserts Ms. Scheurmann restricted his parenting time to sporadic weekends and a few days during the month, which was less than the final order stipulated.

[18] Once Mr. Grolway was working at the mine, the parties could not agree on a parenting schedule that accommodated Mr. Grolway’s two week on/off work schedule at the New Gold Mine in Rainy River.

[19] In addition to the final order, the parties, on consent, and with legal representation, agreed to the temporary order (‘temporary order”) on December 15, 2020 of Justice Pieter Joubert that varied the final order and adjusted the parenting time for Mr. Grolway. The parenting time is less than what the final order gave, but more than the parenting time Mr. Grolway had since the parties’ inability to cooperate and follow the final order.

[20] The temporary order gave Mr. Grolway parenting time with Grayson for 2 consecutive weekends out of every four week period.

[21] Mr. Grolway has a second child from another relationship. The child, Kayden Marcel Nicholas Grolway, was born on June 21, 2019. He has parenting time with Kayden on a two week on/off schedule that matched his work schedule at the time.

[22] In the spring of 2021, Mr. Grolway returned to his former job at Jarnel in Kenora and has a reduced salary as noted above.

[23] Ms. Scheurmann, age 28, is employed at the Nee-Chee Friendship Centre in Kenora, and her salary, according to her 2020 T4 slip, is $58,131.08 per year.

[24] Grayson will be in kindergarten in the fall of 2021, as he is now 5 years of age.

(continues verbatim exactly as in the source decision through paragraph [115], preserving all wording and structure)

Released: September 23, 2021
Signed: Justice E.J. Baxter