COURT FILE NO.: FC-11-580

DATE: 2012Jan05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

K.L.S.

Applicant

– and –

J.J.D.

Respondent

Michael H. Barnhart, for the Applicant

Jacob Tummon, for the Respondent

HEARD: December 6, 7, 8 and 9, 2011 at Ottawa

Tranmer, J.

REASONS FOR JUDGMENT

S.[1] and S.[2]

1This case concerns the best interests of two young girls and what would be best for them in the circumstances of their parent’s separation. The evidence adduced at trial satisfies me that without question, their mother has done a great job as a parent. These are their father's own words. Their father has the ability to be a great father, so long as he is not under the influence of alcohol or drugs, or stress in which situations he uses alcohol as a coping mechanism, to use his own words.

2S.[1] was born […], 2004. She is a smart child and was reading by the age of 2½ years. She has a mother instinct. Two of the witnesses described her as old and wise beyond her years in a good way. She is mature and very loving.

3S.[2] was born […], 2006. She too is very smart and very loving. She is described as full of life, exuberant, and full of energy.

4The evidence satisfies me that both girls are happy and thriving in their present situation, and healthy. It appears on the evidence that they have overcome the turmoil and upset that their parents put them through before separation.

5S.[1]'s grade 2 progress report indicates perfect attendance with no late arrivals to school. She is doing very well at school, completing most requirements of tasks, consistently producing satisfactory work and meeting the standards expected of her report indicates that she is an excellent student who is doing very well.

6S.[2]'s kindergarten portfolio indicates that she too is doing very well at school. Her attendance also has been perfect. She is described as an energetic and outgoing member of the class who enjoys opportunities to share her ideas and experiences with others. She demonstrates solid academic ability and completes activities quickly and correctly when she is focused. She exhibits good fine motor skills, creates neat artwork, writing and drawing. Her teacher reports that she is delighted to have S.[2] in her class and looks forward to seeing her smile each day.

7Exhibit 3 is a recording of a Skype visit S.[1] and S.[2] had with their father on Sunday, November 27, 2011. They both appeared to be happy children and pleased to have the opportunity to chat with their father. S.[1] proudly told her father about two books she had read. S.[2] was proud to tell her father that she could now do the splits. They were engaging in their talk with their father and he appeared to be happy and engaging with them.

BACKGROUND FACTS

8K.S. was born […], 1984. She described growing up in a family where her father was abusive to her, her mother and her sister. She testified that that was some 20 years ago. Her father has become a teddy bear with age, according to her testimony.

9J.D. was born […], 1981. He, too, grew up within an abusive family situation. At about age 14, he was found to be a child in need of protection and lived in group homes until age 18. He has a criminal record of three Theft Under charges, the last one occurring in 2002. At about age 15, he was diagnosed by a medical specialist as suffering from bipolar disease. He testified that his family doctor at the time disagreed with that diagnosis and Mr. D. has chosen to accept the opinion of the family doctor.

10The parties began to live together in about April of 2001, very shortly after they first met. She was 17 years of age and he was 19 years of age at the time. They did not commit to marry each other.

11They separated on or about January 6, 2011 as a result of an incident in their home which led to Mr. D. being arrested and charged with five offenses, three counts of assault, one of which alleges bodily harm, forcible confinement and theft. These charges go to trial on December 20, 2011. In April of 2011, he was charged with a breach of his bail conditions. That charge is to be tried in January of 2012. I have not been informed of the disposition of these charges.

12Mr. D. has not seen his children in person since his arrest. He has paid no money whatsoever for the financial support of his children since his arrest.

13As a result of the incident and pending release of Mr. D. on bail, Ms. S. and the two children were advised to leave the matrimonial home. They moved in to the home of a friend of Ms. S.’s in Winchester. She and her friend enrolled the children in a new school the very same day. After about a month and a half, Ms. S. found a new home for the three of them in Ottawa. These changes in residence were approved of by the CAS worker, Jan Armstrong.

14Despite this turmoil, Ms. S. successfully completed her legal office administration course on March 28, 2011. This was an online course in which she achieved 83% and graduated with honours.

15She facilitated access between Mr. D.'s mother and her children between April and July 2011. She was receiving welfare financial assistance, and attempted to find employment.

16She felt unsafe living in Ottawa because the police would telephone her regularly advising that they could not determine the whereabouts of Mr. D.. Ms. Armstrong testified that although Mr. D. was subject to bail conditions, there were valid concerns for the safety of Ms. S..

17Ms. S. decided that it would be best and safest for her and her children to move to Lumsden, Saskatchewan, where her parents and extended family are located. Since mid July 2011, she and the girls have lived in a private apartment which is attached to her parents’ home. The photographic evidence adduced at trial shows that this home is clean, full of light, nicely furnished and suitable for these children. Ms. S. and the children have decorated the home to make it their home. The girls share a bedroom and will soon be getting bunk beds, about which they are very excited. The residence offers a lot of outdoor space for the girls, as it sits on 1 acre lot. They enjoy leaving feed out for the deer who visit regularly. The photos show a very pleasant and comfortable home environment. Ms. S. walks the children to school every day, which is a 10 minute walk from their home. If she is working, her mother, who is retired, walks the children to school. When it is too cold to walk, she and her mother drive the children to school. Her mother watches the children after school and on the every second Saturday when Ms. S. is at work. Ms. S. is presently employed as a grocery store clerk to earn money to support her family. She is working on earning her driver’s license, which she hopes to accomplish by June of 2012. Her goal, then, is to obtain employment in Regina, a 30 minute drive away, in the legal office administration field of work.

18Since his arrest and release on bail on January 11, 2011, Mr. D. has lived firstly with his mother, then with his friend Jesse, then in a student sublet for four months, at the YMCA for various times, and now back with his friend Jesse and his wife in a two-bedroom apartment. It is unclear where he resided between September and mid-October 2011. This evidence gives credence to Ms. S.’s testimony that the police were telling her that they were unable to keep track of his whereabouts. In April 2011, he was charged with a breach of his recognizance alleging a breach of the condition that prohibited him from consuming alcohol. In April of 2011, he lost the highest paying job that he had had, a job that paid him $38,545 income in the year 2010. His evidence is unclear as to whether he was terminated from the job or he quit. It is clear that he lost that job because his income was so high that it disqualified him from legal aid. Since the loss of this job, he has been receiving employment insurance income and he has not sought out any other employment. The evidence is to the effect that he is readily employable, should he decide to actively seek a job. He testified that he intends to seek work once his criminal trials are completed.

19On August 8, 2011, this court ordered that the OCL be appointed to investigate the situation of the children and report to the court. Mr. D. did not complete the intake forms which he knew were required. Therefore, this court at trial did not have the benefit of such a report.

20Both parties asked that this court proceed with the trial despite the absence of the report by the OCL and without the benefit of knowing the outcome of the trials concerning Mr. D.'s criminal charges.

THE ISSUES

21The issues in this case are:

a. Custody;

b. Mobility;

c. Access;

d. Child-support;

e. Spousal support; and

f. Restraining Order;

CUSTODY

22The parties agree that I should decide the issue of custody first. Mr. D. agrees that the primary residence of S.[1] and S.[2] should be with their mother.

23I am satisfied on the evidence adduced at this trial that, without question, the best interests of these two children are best served by an Order granting sole custody to their mother, K.S..

24The evidence of the CAS child protection worker, Jan Armstrong, is that she approved of all of the decisions made by Ms. S. for her children following the disruption of their lives in January of 2011. She saw no reason whatsoever to be concerned about Ms. S.'s care for her children. Of particular note is the fact that Ms. S. contacted the CAS from Saskatchewan to ask whether it would be appropriate for her to register the children in school. She did not take such a step unilaterally but rather, as a responsible parent, sought the advice of the CAS. The CAS note of this telephone conversation confirms that the CAS knew Ms. S. was residing in Saskatchewan at the time.

25The evidence of Mr. D.'s mother, R.T., also confirms that the best interests of these children are being served by Ms. S.. As much as she wishes the children were closer to her, Ms. T. was of the view that it is best for the children to continue to live in Lumsden. She is satisfied from her contact with the children, which appears to be regular, that they are happy, settled, doing well in school and have a support network that could not be provided for them if they were in Ottawa. She noted that K. has a job and that it is important for the children to see that their mother has become independent, is surviving, and is providing for them. She testified that it would not be good for the children to be uprooted again. She testified that her son, their father, has personal issues that he must deal with. She has not spoken to or seen him since March of 2011. She testified that he is an alcoholic, as was his father and his father's mother. He was predisposed to an addictive personality. She testified that she would not supervise an access visit by him with the children in her home.

26Suzanne Gregoire and Amanda Lennox testified. They knew Mr. D. before they met Ms. S.. They are very supportive of Ms. S. and the children, and reported no criticism whatsoever of the care that Ms. S. was providing to these children, in the very difficult circumstances preceding and following the January 11 incident. They both confirmed that Mr. D. has difficulties with alcohol that impairs his ability to be a good father. They both confirmed that he has it in him to be a good father when he is not abusing alcohol.

27Mr. D. testified in regard to Ms. S.’s care for the children that “overall, I think she did a good job... A great job”. He made no complaint or criticism about their present home. He has been there. He made no objection about the care his children received during their yearly, extended, visits to Lumsden from 2007 to present. The visits were from one to two months in duration at the same residence, in the same apartment unit, and with her parents.

28Mr. D. is unable to offer any stable home situation for the children in Ottawa. He did not provide any detailed plan for access in Ottawa, either supervised or unsupervised. Mr. D. agreed that it is in the best interests of the children that their primary residence should be with Ms. S.. Although he sought to have them return to live in Ottawa, he provided no details of what residence they would have in Ottawa. On this point, his position is that Ms. S. has demonstrated in the past that she can find good accommodation for her children.

29Ms. S.’s goals, having completed her upgrading of her education successfully, to secure her driver’s licence and then find employment in nearby Regina, while presently maintaining an interim job, are laudable. She has a lot on her plate, as she did throughout the spring of 2011, and she has demonstrated that she is able to succeed and at the same time provide the best possible care for her children. Mr. D. praised the care she provided to the children while the two of them live together in Ottawa. He described a structured program that she provided for the children during the day which included art, phonics and playtime. He described her care as better than any daycare that they could have provided for their girls.

30Unfortunately, the actions of Mr. D. did not demonstrate a commitment to the best interests of his children. He has made selfish and irresponsible choices. Examples of such conduct include the following.

31He quit or was fired from his job in order to qualify for legal aid. This job had been his highest source of income, $38,545 for 2010.

32He did not comply with the order of this court made August 8, 2011. He did not complete the intake papers for the OCL. He said that after his needs were addressed by the order of the court with respect to the CAS records and access, he saw no reason for the OCL to be involved.

33He did not obtain the medical report from his family doctor as ordered by the court.

34He did not pay the child support ordered by the court. He has not saved or set aside any money in that regard. He blames the office of FRO for this. He has not given to Ms. S. any money whatsoever for the support of his daughters since their separation on January 6, 2011.

35He testified that he persisted in seeking access by telephoning the CAS worker, Jan Armstrong, weekly through the spring of 2011. Her testimony, supported by her notes, shows him to be untruthful in this regard. He did not persistently make efforts to achieve access with his daughters at any time since the separation on the evidence before me.

36He testified that he was told by Jan Armstrong that it was K. who was denying access to him. Ms. Armstrong testified that that was her decision and she told him so.

37Despite an agreement with the CAS and K. that he would attend AA, domestic violence and anger management programs, and despite facing criminal charges and family law proceedings since January of 2011, he has not done so. It must be obvious that such action by him would have been, not only in his own best interests, but in the best interests of his children. The evidence of his mother, Ms. Gregoire and Ms. Lennox confirm, beyond doubt, that these are issues that he must address in order to be a good father to his children.

38He has not used the last 10 months constructively to establish a safe, stable home for his children, or to establish any stability in his own day-to-day life. He is uncertain as to when he will secure a new job, what rate of pay he might achieve or indeed what hours he will be required to work. One result of this is that it is impossible for the court to fix specific hours in a week during which he will be available to Skype or telephone visit with his children.

39He testified before this court that he did not understand why the mother of his children should be informed, for access purposes, of the identity of any person she might be living with, although when he was questioned on the same point, he indicated that that is information he would want to know about her, in the best interests of the children.

40His testimony offered no reason as to why his children would benefit from access with him other than his desire to have time with them in person, that they are happy when talking with him by Skype or on the telephone, and that there are museums in Ottawa to go to. This is the basis on which he contested custody and the residence of the children in Lumsden. It is a poor basis.

41Although both he and K. speak highly of his mother and her love and ability to assist in the care of their daughters, he has not spoken to her since March and he has not attempted to reconcile with her by satisfying her that he is overcome his drinking problem.

42In April of 2011, Mr. D. was charged with a breach of the bail condition that he not consume alcohol. This is a fourth example of his choice to not abide by court orders. I cannot be satisfied that, despite his testimony, he would take any treatment or programs to address his challenges even if ordered by the court. His testimony was that he would do so if he had to in order to have access to his children. This testimony demonstrates a lack of understanding as to why such treatment would be beneficial to him and to his children, and a complete lack of commitment to fulfilling any such Order.

43There is no substantial evidence before me that Ms. S.’s mother is unable to provide proper and safe care for her grandchildren when Ms. S. is working. The evidence concerning Ms. S.’s father is that he was abusive, but that was 20 years ago and he has mended his ways. Mr. D. says that he saw bruises on her arms 10 years ago when they first met. He says that she told him that they were caused by her father. He says also that she told him that her father chased her with a knife outside when he was naked. She denies both of these allegations or that she said this to Mr. D.. He also testified about an incident where, after heavy drinking, Ms. S.'s father became aggressive.

44Such allegations, if true, are of concern with regard to the children's present residence situation, but I find that Mr. D.’s credibility and the reliability of his testimony cannot be completely accepted by the court. As I have noted, his testimony about regularly pursuing access during the spring of 2011 is persuasively contradicted by the testimony of Ms. Armstrong, which I accept completely. He testified that today he believes that he and Ms. S. can cooperatively make decisions together in the best interests of their children. Yet they are at trial over fundamental issues concerning the children. As I have stated, I do not accept his testimony that he would attend court ordered treatment programs in view of his decisions to ignore court orders in the past. His testimony that he would accept and attend such court ordered programs is qualified by his words “if that were necessary for access”. That is not a ringing commitment. His testimony and cross-examination as to why he did not fill out the intake forms for the court ordered appointment of the OCL demonstrates that he acts in his own interests and that he is prepared to adjust his testimony to put him in the best light possible. He testified that he understood that the OCL provided an independent voice for the children, but that he had what he wanted, that is, an order for the CAS records and access, so he felt the OCL was unnecessary. When it was pointed out to him that in fact he did not have access pursuant to the August 8, 2011 order, his response was that the judge had stated that it was best for the children to have interaction with their father. Furthermore, his testimony as to his reason for failing to obtain the doctor’s note ordered by the court was quite unsatisfactory, as was his excuse for failing to pay the court ordered child support. His attitude towards addressing the personal issues that he suffered and that were clearly identified in the evidence at trial is reflected in his response to the effect that if the court ordered him to go to “bungee school” in order for him to get access, he would do it. His testimony was evasive and defensive in regard to whether or not he believes that he has a drinking problem. The trial evidence is conclusive that he does suffer from one and that it would be best for him and his children if he took steps to constructively address it.

45When it comes to his children's best interests, it appears that his judgment is flawed. He quit the highest paying job he ever had and has not paid one dollar for child support in order that he could qualify for legal aid. Yet this is a man who says he is readily qualified for a good, steady well-paying job.

46The evidence does not satisfy me that there is any risk posed to the children living so closely to their grandparents and being in Ms. S.’s mother’s care when necessary because Ms. S. is pursuing constructive steps to improve the lives of her children. I note that, with respect to Mr. D.'s testimony about an incident concerning Ms. S.’s father, he confirmed that it was her mother that effectively diffused the situation.

PHYSICAL and EMOTIONAL ABUSE

47Ms. S. testified that Mr. D. would punch and kick and hit her and that this escalated sharing their relationship. She did not belabour or embellish these incidents nor did she complain of injuries or pain. She testified in matter of fact manner that two occasions lead to stitches. Mr. D. gave a general denial of any such conduct. Mr. D. did admit that there were occasions when he punched the door or walls. Ms. S. also testified that on two occasions, Mr. D. belittled her, calling her names such as useless, unable to get along without him, whore and bitch. I do not rely on these allegations in reaching my decision because they are nonspecific as to detail and not proven on a balance of probabilities.

48However, I do rely upon Ms. S.'s testimony concerning the incident surrounding January 6, 2011. Mr. D. gave no testimony concerning these incidents. Ms. Gregoire and Ms. Lennox described marks on Ms. S.’s neck that are consistent with Ms. S.’s description of the events. Following the evening of January 5, 2011 when Ms. S. returned from being out with her friends to celebrate her birthday, Mr. D. accused her of being high on drugs. This was around 2 AM. He locked her in the bathroom and pushed her hard into the back of the tub. She told him to get his hands off her, that she had to get up in a couple of hours to get the children off to school. He would not leave her alone. She told him that she was going to call a friend, but he took the telephone and threw it downstairs. The next morning on her birthday, he called her a whore, bitch, and useless in front of S.[2]. S.[1] was at school. He was heading off to work, but he needed money, and he wanted her bank card to go drinking with his friends later. That would be on her birthday. He pushed her against the kitchen table and called her names. Then he left with her bank card. When he came home around 3 AM, he pulled her out of the bed and threw pillows and blankets at her. He accused her of cheating and told her to tell him the truth. She testified that he attacked her aggressively. He pinned her on the bed with her hands above her head and then used one of her hands to punch herself in the face. Then he choked her with one hand to the point where she could not breathe and she feared for her life. When he let her up, she saw that Sam was standing at the doorway. She did not go to the hospital and she did not call the police. She called her father. It was he who decided the police should be called. The police arrested him when he came home from work that evening.

ALCOHOL and DRUGS

49Ms. S. testified that throughout their relationship, Mr. D. abused alcohol, marijuana and later, cocaine. His abuse of alcohol is confirmed by the testimony of his mother, Ms. Gregoire and Ms. Lennox. I can make no finding as to the extent or impact of his use of drugs because of the generality and lack of details concerning his drug use.

50Mr. D. and Mr. Bogart testified that Ms. S. abused cocaine in the fall of 2010. There is no evidence that she has used alcohol or drugs since the separation. There is no evidence that her use of cocaine impacted adversely on the children. The school records, photographs, and Skype exhibit confirm conclusively that the children are healthy and happy and living in a safe, supportive environment. I cannot find that Ms. S. uses cocaine at this time.

51Finally, on the question of custody, I reject the evidence of Mr. Bogart concerning Ms. S. being impatient with the girls and rough with them. This is completely at odds with the entirety of the evidence, including that of Mr. D.. Furthermore, I reject the evidence of Mr. Bogart that Ms. S. told him that her father abused her and about the knife incident. His evidence was noticeably slanted in favour of his friend. It is hard to believe that he was at the D. household as often as he says he was in view of the fact that he was married on August 28, 2010 and his wife’s travels were for only three weeks during that fall. In my view, it is unlikely he was able to attend at the D. residence in January of 2011 “a few times” because the incident took place commencing the evening of January 5, 2011. He would have had to be there every day during that month, which is contrary to his evidence about his routine. Furthermore, it is difficult to accept as evidence that he covered shifts for Mr. D. as often as he says he did in view of the fact that he testified that they work together. His testimony is also inconsistent with that of Mr. D. as to which day off Mr. D. took to be with his children. Mr. D. stated that it was Mondays, while Mr. Bogart said it was Fridays. Furthermore, his testimony in chief suggested that he had first-hand knowledge about Mr. D. volunteering at the school or attending on daddy-daughter day. Cross-examination clarified that was not the case. His evidence in chief concerning Mr. D. helping with the children's homework on a regular basis was qualified in cross-examination to be only five times in his presence. I find that Mr. Bogart's testimony is not helpful, and cannot be relied upon in the determination of the issues that are before this court.

52The evidence is conclusive that the best interests of the children are served by granting to Ms. S. sole custody and I do so.

MOBILITY

53Counsel for Mr. D. provided a case book, which was also relied upon by counsel for Ms. S..

54Sheffield, J. of this court, in Swim v. Bridges (2009, S.C.J.) summarized the leading case as follows,

The Law

[27] In considering any mobility issue in the context of a child, the overriding factor is the child's best interests.

[28] The leading cases on mobility rights are Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 and Young v. Young (2003), 2003 CanLII 3320 (ON CA), 63 O.R. (3d) 112 (C.A.).

[29] In Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27 the Supreme Court held that the courts should give consideration to the views of the custodial parent in determining mobility disputes:

48 While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability.

[30] The views of the custodial parent are one factor among many to consider when determining an issue of mobility: Gordon, supra at para. 49. Further,

50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

[31] In Young v. Young, the parties had agreed to joint custody in their minutes of settlement. Two years later, the mother obtained a full-time position in Cornwall and moved there herself. She brought an application to permit the children to move there as well. Smith J. granted the application and granted generous access to the father. In overturning this decision, the Court of Appeal in Young held that the factors from Gordon apply equally to relocation matters involving joint custody.

55The Ontario Court of Appeal in Berry v. Berry 2011 ONCA 705 stated the test as follows,

The Test

[9] The sole issue that remained at trial was the mother’s motion to relocate to Kingston with the child. The parties agreed that the legal test set out in the Supreme Court’s decision in Goertz, the leading authority on mobility applications, applied. In Goertz, the mother had sole permanent custody of the child and the father had generous access. The father applied for an order restraining the mother from taking the child out of the jurisdiction, and the mother cross-applied for an order allowing the move. This case differs from Goertz in that here both parties are custodial parents and there is no previous custody order to vary. Here, there is no threshold issue of whether there has been a change of circumstances since a previous custody order, and there is no relationship between the child and an access parent to consider. With the necessary adjustments, then, the principles from Goertz apply to this case.

[10] In Goertz, the Supreme Court emphasized that the superordinate consideration in a mobility case is the best interests of the child determined from a child-centered perspective. The court set out, at para. 14, a number of factors to be considered. Taking into account that this case involves two custodial parents, those factors can be stated as follows:

• the existing custody arrangement and relationship between the child and each of the custodial parents;

• the desirability of maximizing contact between the child and both parents;

• the views of the child (when applicable);

• the parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

• disruption to the child of a change in custody; and

• disruption to the child consequent on removal from family, schools, and the community the child has come to know. [Emphasis in original]

56Counsel for Mr. D. relied upon the Berry decision in support of his client’s position that the children should be residing in Ottawa and not in Lumsden, Saskatchewan. The Berry facts are quite distinguishable from the facts before me. In Berry, the parties had agreed to share joint legal custody. The child had been living approximately half of the time with his father since separation. Furthermore, there had been a court order made that the child's principal residence was to be in Toronto and that the parents were to share equal access. The mother moved the child to Kingston despite that order.

57A child focused consideration of the mobility issue in this case leads me to conclusively decide that the children's best interests are served in their present home environment. The independent witnesses Jan Armstrong, Mr. D.'s mother, Ms. Gregoire and Ms. Lennox are unanimous in this regard, despite the fact that they would like more time with Ms. S. and her children, and would help out as their time and commitments permitted. Their lives are busy and full. Their availability is very limited.

58In my view, it is an important fact that Ms. Lennox did not set up the incident of January 6, 2011 with a preplanned scheme to take the children away from Mr. D.. She did not call the police and indeed had not done so in the past except on one occasion when he had threatened suicide. She did not know in advance that he would be arrested as a result of this incident, or what the consequences would be.

59She has not acted contrary to court order, but in fact, has sought, reasonably and responsibly, the advice of the CAS and her trusted friends, whom she met through Mr. D..

60Following the separation, she did try to make a good life for herself and her children in Ottawa. Her actions were approved of by the CAS child protection worker who was not involved as a result of any conduct on the part of Ms. S.. But as a result of telephone calls from the police voicing their concern, she decided it would be safest for her and the children to move to Saskatchewan to live in an independent but safe environment. Her home is private, clean, suitable and affordable. She has no financial support from the children's father. She has a sound plan for her family's future, an interim job for some money, to get her driver’s licence, and to find a job in the city, which is a 30 minute drive away. She has affordable day care to support her plan. She has an affordable residence. As stated, Mr. D. has no complaints about the residence. He has no complaints about Ms. S.’s mother.

61The situation that she faced in January of 2011 forced her to make decisions for the future which on all the evidence proved to be good decisions. Her decisions were best for her children. Their last memories of Ottawa are sad ones, fear about their mother’s future, fear about their father in jail, loss of their dog and uprooting from their home and school. Their lives are immensely improved in all of the important ways in their present situation.

62It is unfortunate, but a fact, that presently Mr. D. can offer little to his children were they to move to Ottawa, other than in person visits with him. The legal principles of maximum contact with each parent are important to these children. Ms. S. supports that principle and says that Mr. D. is best for his children when he is clean, healthy and sober. This is confirmed by the balance of the evidence. While supportive of her and the children, the reality is that Mr. D.'s mother, Suzanne and Amanda are busy in their own lives and unable to provide support network that Ms. S. has in place in Saskatchewan.

63The reality is that Mr. D. is facing serious criminal charges that could result in a custodial disposition. He is unemployed and has not sought employment. He puts his own wishes in priority to the best interests of his children as I have described previously. In my view, his best case for contact with his children is the legal principle for maximum contact for children with both parents. The facts of this case do not support uprooting the children from their success and stability in Saskatchewan and returning them to the uncertainty of Ottawa.

64I have no doubt whatsoever that the best interests of these children are served by continuing to reside in their present situation in Lumsden, Saskatchewan and I so order.

ACCESS

65This court does not have the benefit of an OCL report although ordered. The fault is Mr. D.'s.

66Although the need has been conclusively proven, he has not taken steps to address his drinking, violence and anger issues. The court recognizes that there is no alleged abuse of the children directly, but the evidence confirms that his misconduct has occurred in the presence of the children.

67The change in the Skype visit from November 26, 2011, to November 27, 2011 does not cause me to doubt Ms. S.’s willingness to permit Mr. D. access with his children. Contrary to counsel’s submissions, that change demonstrates flexibility and cooperation on the part of Ms. S. to ensuring that the visit took place with both children.

68Ms. S.’s decision to bring her laptop, the Skype computer, to Ottawa was a poor one – to check her emails. But this poor choice pales in comparison to those of Mr. D. already identified in these Reasons.

69Because of his actions, namely criminal proceedings, losing or quitting his job, and the uncertainty of his hours of work, if and when he finds a new job, days and times for Skype and telephone visits between him and the children cannot be fixed. The parties do not have the financial means to permit visiting back and forth even once per year. No suitable location or facility has been identified in either city to permit supervised access by Mr. D. of his children. On the evidence before me, I find that supervised access is required until Mr. D. has taken steps to satisfy the court that he is dealing with his problems in a sincere, committed and constructive way. Any supervised access should be to the complete satisfaction of Ms. S.. Counsel for Mr. D. quite properly concedes that initial supervised access is appropriate. The facts that exist and the uncertainty of Mr. D.’s future short term and long term make is impossible for me to do anymore than guess at a plan for increasing access. I do not propose to guess.

70The Skype and telephone contact should continue. The best I can do on the evidence is order one Skype visit per week up to one hour in length and one telephone visit per week to one hour in length. Counsel are directed to assist the parties in bringing some certainty to when these might occur.

71Ms. S. shall provide Mr. D. with the names of the schools and the doctors for the girls, so that he can contact these institutions, should he wish to do so, and obtain records concerning his children. She shall sign any necessary consents to permit him to access such information.

72Mr. D. shall have supervised access with his children in the presence of persons and at a location, or at a facility, approved of by Ms. S. in writing, in advance. Such access shall not exceed four hours in a day and shall be no more often than once a week. Mr. D. shall bear all costs of such access.

73This access is intended to put in place and maintain the maximum contact available in the fact situation that exists.

CHILD SUPPORT

74It is unclear if Mr. D. quit or was fired from his best paying job in April 2011 - $38,485 per annum, for the year 2010. But it is clear that this job was lost because he put hiring a lawyer for himself ahead of supporting his children. The evidence is undisputed that when he decides to find work, he is readily employable at $12.00 to $18.00/hr - $24,000-$37,000 per annum.

75He is intentionally unemployed. He has not paid one cent for child support or any money whatsoever for his children since January 2011. He has set no money aside for their support. That is his choice. His children should not suffer for his bad choices.

76I should impute income to him right now, and retrospectively on the evidence before me. But he is in arrears for 10 months already at $276.00 per month.

77I will not force him into a deeper hole now.

78I order Mr. D. to pay child support in accordance with the Child Support Guidelines, based on employment insurance income of $1477.00 per month, in the amount of $276.00 per month for his two children commencing December 1, 2011. The interim Order provides for the period up to December 1, 2011.

79I order Mr. D. to provide immediately full details of any and all employment and income, supported by written documents.

80He is to provide his Income Tax return and Notice of Assessment to Ms. S. by July 1^st of each year, beginning July 1, 2012.

81Effective March 1, 2012, I impute income of $30,000.00 to Mr. D. unless through his best efforts, he has secured employment at lesser income or greater income, in which case that shall be the applicable income for child support.

82Effective March 1, 2012, Mr. D. shall pay child support based on his income of $30,000.00 per annum or his actual proven income, if he has obtained employment.

SPOUSAL SUPPORT

83Ms. S. has upgraded her education. This was according to their plan. In addition, she has obtained work and is providing income to her family. The facts and applicable legal principles would entitle her to spousal support. In the present circumstances, I fix this at $1.00 per annum to be paid by Mr. D. commencing December 1, 2011.

RESTRAINING ORDER

84On the facts as they exist, on the evidence before me, and in particular, the facts of the January 2011 incident, the alleged breach of the bail condition prohibiting use of alcohol, and the bail conditions, I order that Mr. D. shall have no direct contact with Ms. S..

85He shall not harass, molest or annoy her.

86He shall remain 1 km away from her, her residence, and her place of employment.

87The Skype and telephone access shall be facilitated by third parties.

SUMMARY

88I understand my findings and my decision may seem harsh to Mr. D.. I understand life has posed hardship, hurt, considerable challenges for him and denied to him many opportunities that others enjoy. This has not been all his fault. I am sincerely sorry that he suffered an unfortunate upbringing which continues to haunt him and impact him daily. But he must come to understand soon that he was leading his children down or at least toward the same path. My decision will hopefully preserve the best possible future for S.[1] and S.[2]. It appears on the evidence that the cycle of abuse that has burdened both families has been broken.

89This decision was based on the evidence presented. It makes the best of the circumstances that exist for those two children.

90The best path for Mr. D. to commit to has been identified in this trial. For his children’s sake and for his own, the Court hopes he will commit to it and remain on it.

SUMMARY OF ORDER

Custody

91Sole custody of S.L.D., born […], 2004, and S.A.D., born […], 2006, shall be and is hereby granted to their mother, K.L.S..

Mobility

92The children shall reside in the primary care of their mother in their home, which is presently in Lumsden, Saskatchewan.

Access

93J.D. shall have access to his children as follows,

a. He shall have one Skype visit per week, which shall last up to one hour in length.

b. He shall have one telephone visit per week, which shall last up to one hour in length.

c. He shall have supervised access with his children in the presence of such persons and at such a location as is approved of by Ms. S. in writing in advance. Such access shall not exceed four hours in a day and shall be no more often than once per week. Mr. D. shall bear all costs of such access.

d. Ms. S. shall sign any necessary consents to permit Mr. D. access to the school records and medical records concerning the children. The cost of obtaining such records shall be borne by Mr. D..

Child Support

94Mr. D. shall pay child support to Ms. S. for the support of the two children in accordance with the Child Support Guidelines based on his present income and the amount of $1477 per month, which is the sum of $276 per month, commencing December 1, 2011, up to and including February 1, 2012.

95The interim order made August 8, 2011 provides for the child support up to and including November 1, 2011. Any and all arrears thereunder, shall be paid by Mr. D. at the rate of $100 per month, commencing January 1, 2012.

96Commencing March 1, 2012, Mr. D. shall pay child support to Ms. S. for the two children in accordance with the Child Support Guidelines based on an income of $30,000 per annum. If Mr. D. has secured employment by that date, using his best efforts, then his income from such employment shall form the basis for the child support payable in accordance with the Child Support Guidelines.

Spousal Support

97Mr. D. shall pay to Ms. S. on account of spousal support, the sum of $1.00 per annum based on his income of $1477 per month, commencing December 1, 2011.

Financial Disclosure

98Mr. D. shall immediately notify Ms. S. of his employment or changes in employment, and income therefrom, and shall provide documentation to confirm the details thereof.

99Mr. D. shall provide to Ms. S. on or before July 1^st of each year, commencing July 1, 2012, complete copies of his income tax return with all supporting documentation, and others notice of assessment for the year.

Restraining Order

100Mr. D. shall have no direct or indirect contact with Ms. S.. His access shall be facilitated by third parties. Mr. D. shall not harass, molest, or annoy Ms. S.. Mr. D. shall remain 1 km away from Ms. S., her residence, and her place of employment.

Costs

101The lawyers for each party have made costs submissions. Each submission consists of one sentence, claiming $10,000 in costs. There are no costs outlines. There is no information provided as to counsel's experience, hourly rate, or the time spent on these proceedings. The trial consisted of three days and one hour of evidence. Written submissions were made by the applicant, consisting of 13 pages, and by the respondent, consisting of 11 pages. Counsel for the respondent prepared a casebook, consisting of four cases.

102There was apparently no offer to settle made by either party.

103Ms. S. was substantially successful. On the facts, Mr. D. was highly unlikely to succeed in the position that he advanced. The reality is that Ms. S. should not have been put to this trial. The cost for her to attend would have been put to far better use for the benefit of the children, for example, commencing an education fund for the children. In my view, this trial was about what Mr. D. wanted. As indicated in my reasons he made choices, including proceeding with this trial there were contrary to the best interests of his children.

104The rules provide for a presumption that a successful party is entitled to costs. I have considered the factors set out in Rule 24. The issues were obviously of importance to both parties, but the issues were not complex. As indicated in my Reasons, Mr. D. made poor choices that have affected the best interests of his children.

105It is clear that Mr. D.’s impecuniosity is due to his own actions. However, I recognize that his current financial situation greatly impedes his ability to visit with his children in person.

106Costs are always in the discretion of the court. In my view, a just and reasonable costs award in this case requires that Mr. D. pay to Ms. S., the sum of $5000.00 all-inclusive on account of costs.

Tranmer, J.

Released: January 5, 2012