COURT FILE NO.: 5167/10

DATE: 2012-04-05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HALLE PAIGE NOAH, Applicant

AND:

JOHNNY PAUL BOUCHARD, Respondent

BEFORE: GRAY J.

COUNSEL: Thomas Marshall, Counsel for the Applicant

Richard Guy, Counsel for the Respondent

John V. Grant, Counsel for the Office of the Children’s Lawyer

HEARD: March 27, 28 & 29, 2012

ENDORSEMENT

[1] The parties were never married. They have two young children. After their separation, the respondent moved from Owen Sound to Sudbury and the applicant moved to Oakville. The children have resided with the applicant. A separation agreement was signed on separation.

[2] The respondent now wants custody, and child support. If he does not get custody, he requests an order reducing his child support obligation, since he has retired and is now on pension.

[3] The applicant wants the separation agreement set aside, a spousal support order made, and an order dividing their property on separation in accordance with resulting/constructive trust principles or unjust enrichment principles.

Background

[4] The parties never married, but lived together for about eight years. They signed a separation agreement on December 16, 2008.

[5] The parties have two children, Tyler, born March 5, 2002, and Nicholas, born November 24, 2003.

[6] When the parties lived together, for the most part the applicant did not work. The respondent was in the Armed Forces, having enlisted when he was 18 years old. He rose to the rank of Captain, and became an Administrator. He was posted to Quebec when he first met the applicant, they subsequently moved to Edmonton, and then to Owen Sound, where they lived when they separated in December 2008.

[7] The respondent’s salary at the time of his retirement was $86,000 per annum. He also had access to a benefit plan, including extended medical benefits and dental benefits.

[8] When the respondent retired, he was entitled to pension benefits amounting to $33,000 per year.

[9] The applicant is now employed, and earns approximately $30,000 per year.

[10] After the separation, the respondent moved to Sudbury, where a number of his family members live. He now lives with Kerry Ross and her daughter.

[11] After separation, the applicant moved to Oakville, where she lives with the children. They attend school there, and the normal supporting people such as medical practitioners are there.

[12] As noted earlier, the parties entered into a separation agreement in December, 2008. Each party was represented by counsel.

[13] Even though the parties had never married, and the Divorce Act had no application, the applicant’s counsel prepared a draft Net Family Property Statement. The applicant purported to claim that she owned household goods and furniture worth $50,000, and the respondent owned household goods and furniture worth $6,000. In the final analysis, the draft Net Family Property Statement purported to show that the applicant would be required to pay to the respondent on separation the amount of $47,550.

[14] Proceedings were commenced in the Ontario Court of Justice, relating to custody and access. The parties, through counsel, engaged in negotiations, and various proposals and counterproposals were made.

[15] In an email to her counsel dated December 12, 2008 (for which privilege has obviously been waived), the applicant instructed her counsel to make a counterproposal, as follows:

Counter-offer to John/Selwyn’s proposal

1. Boys’ primary residence with me

2. Visitation for Johnny – 2 weekends per month, plus 2 nights a week, each week of month

3. Alternating March Breaks

4. Alternating bi-weekly during summer vacation

5. $15,000 (John looks after lien on house) or $20,000 (I look after lien on house

6. Child support (approximately $1250/month, as per your advisement

7. 80% of dental and medical for boys (as per John’s current Benefit Plan). 80% of dental and medical for Halle (as per John’s current Benefit Plan) until such time when I establish employment and a benefit plan is in-place.

8. Furniture and children’s belongings – divided

9. Shared driving, with conditions – I will be willing to travel to meet John for his weekend visits with our boys if: the weather and roads are permitting (i.e. I will not travel if there is a snow storm or there are treacherous driving conditions due to ice, etc.); and, if the drive per weekend is no longer than 4 hours total for the dropping-off and picking up of the boys (i.e. 2 hours to and back from dropping off the boys with John; 2 hours to and back from picking up the boys from John).

[16] In a further email dated December 16, 2008 to her counsel, the applicant stated:

I have decided to accept Johnny’s counter-proposal. I will see you in court today at 1:30 p.m. I would like John’s monthly child support funds ($1,222) to go through “Family Responsibility” and request that you include this at today’s meeting.

[17] At a meeting at the courthouse on December 16, 2008, the terms of the separation agreement were finalized, and signed.

[18] In the agreement, the parties agreed that they would have joint custody of the children, and that they would reside with the applicant primarily, with access to the respondent. Access was to be on every second weekend; Tuesday, Wednesday and Thursday of each week from 4:30 p.m. to 6:30 p.m.; time at Christmas, March Break, and Father’s Day; equal sharing of summer vacation; telephone and email access; and other times as may be agreed.

[19] It was also agreed that transportation for access purposes would be shared between the parties, provided that the applicant was not required to drive more than 2.5 hours from Owen Sound (one way).

[20] It was agreed that the respondent would pay child support in the amount of $1,232 monthly, based on an annual income for the applicant of $32,000, and for the respondent of $86,000. It was agreed that they would share special or extraordinary expenses. It was agreed that the table amount of child support would be adjusted based on the parties’ annual incomes for a calendar year.

[21] Under the agreement, the respondent agreed to pay the applicant the sum of $15,000. They agreed that they had divided their property and household items to their mutual satisfaction. The respondent assumed full responsibility for all joint and family debt, and agreed to assume responsibility for a lien against the matrimonial home involving Legal Aid Ontario. The applicant agreed to transfer her interest in the matrimonial home to the respondent.

[22] Of some significance, the agreement contains some extensive release and acknowledgement clauses:

7. Spousal Support Release

7.1

(a) As a result of the terms of this Agreement, and upon completion of the property settlement set out in this Agreement, Halle and Johnny are financially independent of each other and release his or her rights to spousal support from the other, now and forever.

(b) Halle and Johnny intend this Agreement to be forever final and non-variable.

(c) For greater certainty, the parties acknowledge that:

(i) they have negotiated this Agreement in an unimpeachable fashion and that the terms of this Agreement fully represent their intentions and expectations;

(ii) they have had independent legal advice and all the disclosure they have requested and require to understand the nature and consequences of this Agreement, and to come to the conclusion, as they do, that the terms of this Agreement, including the release of all spousal support rights, reflects an equitable sharing of the economic consequences of their relationship and its breakdown;

(iii) the terms of this Agreement substantially comply with the overall objectives of the Divorce Act now and in the future;

(iv) they require the courts to respect their autonomy to achieve certainty and finality in their lives;

(v) the terms of this Agreement and, in particular, this release of spousal support, reflect his and her own particular objectives and concerns, and are intended to be a final and certain settling of all spousal support issues between them. Among other considerations, they are also relying on this spousal release in particular, upon which to base their future lives.

(d) Halle and Johnny specifically wish to be able to pursue their separate and independent lives, no matter what changes may occur. Halle and Johnny specifically anticipate that one or both of them may lose their jobs, become ill and be unable to work, have additional child care responsibilities that will interfere with their ability to work, find their financial resources diminished or exhausted whether through their own fault or not, or be affected by general economic and family conditions changing over time. Changes in their circumstances may be catastrophic, unanticipated or beyond their imagination. Nevertheless, no change, no matter how extreme or consequential for either or both of them, will alter this agreement and their view that the terms of this Agreement reflect their intention to always be separate financially. Halle and Johnny fully accept that no change whatsoever in either or both of their circumstances will entitle either of them to spousal support from the other, now and forever.

(e) In short, the parties expect the courts to enforce fully this spousal support release no matter what occurs in the future.

PENSIONS:

The parties agree that neither shall have any claim to the other’s pensions.

11. Releases

11.1 This Agreement is a full and final settlement of all issues between Halle and Johnny and all rights and obligations arising out of their relationship.

11.2 Except as otherwise provided in this Agreement, Halle and Johnny release each other from all claims at common law, in equity or by statute against each other, including claims under the Divorce Act, the Family Law Act, and the Succession Law Reform Act.

12. General Terms

12.1 There are no representations, collateral agreements, warranties or conditions affecting this Agreement. There are no implied agreements arising from this Agreement and this Agreement between the parties constitutes the complete agreement between them.

12.9

(a) Halle and Johnny have both had independent legal advice, Halle from Jill Gamble and Johnny from Selwyn J. Hicks.

(b) Halle and Johnny:

(i) understand his or her rights and obligations under this Agreement and its nature and consequences,

(ii) acknowledge that this Agreement is fair and reasonable,

(iii) acknowledge that they are not under any undue influence or duress, and

(iv) acknowledge that both are signing this Agreement voluntarily.

[23] After the separation, the matrimonial home was sold. The respondent paid the applicant $15,000.

[24] Effective August 1, 2009, the respondent retired from the Armed Forces. He moved to Sudbury. His pension pays him $33,000 per year. At present, he is unemployed. He no longer has access to a medical or dental plan.

[25] The applicant moved to Oakville and lives with the children.

[26] Since the parties have moved some distance away from each other, the access exercised by the respondent is somewhat different. He has had extensive access during the summer, and indeed most of the summer. This gave rise to an incident at the end of the summer, 2010.

[27] After the children had been with the respondent for practically the entire summer in 2010, the respondent refused to return the children to the applicant. Indeed, he enrolled them in a school in Sudbury. This gave rise to some urgent motions. On September 9, 2010, Daley J. granted an order, ex parte, requiring the respondent to deliver the children forthwith to the applicant. The motion was to be returned to the court at Milton within 10 days. It came before me on September 23, 2010, and I granted temporary custody of the children to the applicant, with access to the respondent every second weekend, to be exercised in the Regional Municipality of Halton. The children have remained with the applicant, and the respondent has continued to have significant access in the summer.

[28] In my order dated September 23, 2010, I requested the involvement of the Office of the Children’s Lawyer. The OCL agreed to become involved, and appointed counsel and a social worker as a clinical investigator.

[29] Karen Armstrong, the clinical investigator, testified. She interviewed the parents, and engaged in some observation visits. With respect to the respondent, her observation visits were in a hotel room in Halton Region. She did not go to Sudbury.

[30] Ms. Armstrong’s conclusion was that both observation visits were positive. The children are comfortable with both parents. Nicholas would like to spend more time with his father. Tyler feels caught “in the middle”. He is comfortable with the way things are at present. Both children love their parents.

[31] Ms. Armstrong was aware of an issue involving Tyler, where he was taken to hospital by his mother, and he exhibited symptoms of anxiety and consulted a psychiatrist. He was admitted to the psychiatric unit. The anxiety is contributed to, in part, as a result of the conflicts between his parents.

[32] Ms. Armstrong interviewed the teachers at the school. Tyler struggles to some extent. Nicholas is stronger. There are no significant behavioural concerns.

[33] Ms. Armstrong was aware of an incident during which the applicant tape recorded a conversation with Tyler, when Tyler apparently criticized his father. Ms. Armstrong acknowledged that this was unfortunate.

[34] Ms. Armstrong is aware that the applicant wants custody of the children. In her view, the children are in a settled environment. They have lived in Oakville with their mother for one and a half years. They are comfortable in Oakville, and it would be difficult to now uproot them from their environment, including their school and access to medical facilities.

[35] It should be noted that both children have missed significant amounts of time at school.

[36] During the school year 2008/2009, Nicholas missed 80 days; and Tyler missed 94.5 days. During the school year 2009/2010, Nicholas missed 43 days; and Tyler missed 59 days. During the school year 2010/2011, Nicholas missed 37.5 days; and Tyler missed 45 days. During the three weeks of school in September, 2011, Nicholas missed 8 days and Tyler missed 4 days.

[37] The applicant, Ms. Noah, testified. She testified that while she had a lawyer during the negotiation of the separation agreement, she only signed it under duress. She said she signed it because the respondent told her that if she did not negotiate the financial terms of the separation agreement, she would never see her children again.

[38] The applicant testified that even though the agreement suggested that her income was $32,000 per annum, that was not true. She said her lawyer told her that because the Divorce Act did not apply, and only the common law applied, she would have no claim for spousal support. She said there was no discussion of the possibility of the respondent retiring.

[39] The applicant testified that she was not aware that she had any entitlement to the respondent’s pension. It should be noted that a letter was produced, indicating that as a common law spouse, the applicant’s entitlement amounted to $126,174.10.

[40] The applicant testified that since the respondent’s retirement, she no longer has access to a medical and dental plan.

[41] The applicant testified that she only received $15,000 in cash after the separation. She never did find out how much the respondent received when he sold the matrimonial home.

[42] The applicant testified that when the respondent moved to Sudbury, he insisted that the applicant drive the children to Perry Sound where the respondent would meet the children, so that he could exercise access visits. She said she did not have access to a car, and could not fulfil that obligation. She suggested that the respondent was aware that she did not have a car at the time the agreement was entered into.

[43] The applicant testified that she is now working in Oakville and earns approximately $30,000 per year.

[44] The applicant testified that the respondent has paid nothing for special or extraordinary expenses since the date of separation.

[45] The applicant testified that the children are doing well in Oakville, and are doing well in school. Reports from the school were produced that show that the children are average performers.

[46] On cross-examination, the applicant acknowledged that the respondent is a good father.

[47] The applicant also acknowledged that in February, 2011, she withheld access from the respondent. She claimed that the respondent had held inappropriate discussions with the children, and she tape recorded one conversations with Tyler. She acknowledged that this was probably not appropriate.

[48] Stanley Herbertson, the applicant’s father, testified. He said he was in attendance at some of the negotiation meetings involving the separation agreement. He testified that during one meeting, the applicant’s lawyer came out of the meeting very upset. She said she did not have to take threats, and stated that the respondent had called her a liar.

[49] Mr. Herbertson testified that he asked the applicant’s lawyer about the applicant’s entitlement to the respondent’s pension; the matrimonial home; spousal support; and child support. He testified that he received no positive advice from the applicant’s counsel. In the ultimate agreement, none of the issues raised by Mr. Herbertson were addressed in the agreement.

[50] It should be noted that the applicant has commenced an action against her former counsel for negligence arising out of the negotiation of the separation agreement.

[51] The respondent, Mr. Bouchard, testified.

[52] He joined the army at age 18, and retired when he was 42. After retirement, he moved to Sudbury because he wanted to go where he had been raised.

[53] The respondent testified that when Tyler was born, he took three months of parental leave, and when Nicholas was born, he took a year of parental leave.

[54] The respondent testified that the parties quarrelled over money, and the separation occurred when he was out of town and was returning. He got a call from an officer in the Armed Forces, who advised that the applicant had come to the base and told them that when the respondent arrived, she would probably not be at home. The respondent went to the house, and discovered that the children were not there.

[55] The respondent testified that he was never abusive to his spouse.

[56] He testified that the lawyers negotiated the separation agreement. There were offers back and forth. Primarily based on a counterproposal from the applicant, the matter was settled. The respondent denied saying that he would take the children if the matter was not settled.

[57] The respondent insisted that at the time of negotiation of the agreement, there was discussion about the respondent’s potential retirement. He said he wanted as much access as he could get, and accordingly the clause requiring the applicant to drive up to two and a half hours was very important. After he retired, the applicant, in fact, refused to do the necessary driving.

[58] The respondent explained what happened when he decided to not return the children after the summer of 2010. He said that for a 10 day period in July, 2010, the children were with the applicant. When they returned to the respondent, it was clear that they did not brush their teeth when they were with the applicant; very few home-cooked meals were prepared for them; and the applicant slept a lot during the day, leaving them unsupervised.

[59] The respondent testified that he was concerned about what he had heard, and the boys advised him that they wanted to stay with their father. For that reason, he decided to keep the children, but subsequently complied with the Court orders requiring the return of the children when they were made.

[60] The respondent testified that he lives in a four bedroom home, which will be very advantageous for the children. He telephones them each day. Their relationship with his companion, Kerry Ross, is “great”. They get along very well with the rest of his family.

[61] The respondent testified that he is concerned that the children have missed large amounts of school. He is concerned that the boys sometimes sleep with their mother. She does not insist on their doing homework. She does not prepare proper meals. She sleeps during the day. The applicant is not interested in the children’s religion. She uses the children to relay information to the respondent. She does not advise the respondent about the children’s medical treatment, and in fact he thinks they do not get proper medical care.

[62] The respondent pointed out that under the separation agreement, he was required to pay $15,000, and discharge a Legal Aid lien that the applicant had incurred. In addition, she took $4,000 from the parties’ bank account. He pointed out that pursuant to the draft Net Family Property Statement prepared by the applicant’s lawyer, she would owe the respondent $47,550. Instead of requiring her to pay that amount to him, the respondent offered to pay her $15,000 and discharge the Legal Aid lien.

[63] The respondent testified that the applicant has at all times had access to a car, namely, a vehicle that was leased by her parents.

[64] The respondent pointed out that his obligation is to pay special and extraordinary expenses that are claimed in writing. The applicant has never claimed them in writing.

[65] The respondent pointed out that his pension income is now $33,000 per annum, but he still continues to pay $1,232 per month in child support, rather than $497 per month as should be required by the Guidelines. Thus, he is paying $735 per month too much, and he has overpaid child support by $27,445.

[66] On cross-examination, the respondent testified that he is seeking employment but has not yet obtained it. He said he has had many applications, but most employers do not want to give him every second Friday off. He has not considered moving to Oakville.

[67] He testified that most people retire from the Armed Services in their early 40’s, but the mandatory retirement age is 55. He said he discussed retirement with the applicant. He said it was always understood that he would do a maximum of 20 to 25 years in the Armed Services. He testified that when the separation agreement was being discussed, he emphasized that it was very important to him to have a provision that would require the applicant to drive halfway, to a maximum of two and a half hours, for access exchanges.

[68] The respondent acknowledged that when he decided to keep the children at the end of the summer of 2010, he stayed in a hotel so that it would be more difficult for papers to be served on him. He said he did not want any commotion.

[69] The respondent acknowledged that he had signed an agreement that provided that both parties would have joint custody, but said that he did so because he did not know what kind of mother the applicant would be.

[70] The respondent’s sister, brother and mother testified. They confirmed that the respondent is a good father and loves his children. They believe the applicant over-medicates the children, and they miss too much time from school. They believe the respondent can provide a very good home for the children in Sudbury.

[71] On cross-examination, they all agreed that the applicant is a good mother.

[72] Kerry Ross, who lives with the respondent, testified. She testified that the respondent has never been abusive to her. She said he has a great relationship with his children, and he is passionate about them. He calls his children every day, and they are never ill when they are with them.

Submissions

[73] Counsel for the Office of the Children’s Lawyer submitted that the status quo should be maintained. In other words, the children should remain with their mother and the respondent should have significant amounts of time with them. It is understood that this will be somewhat difficult because of the distance between them.

[74] Counsel for the OCL submits that the applicant has been primary caregiver to the children since 2008, and there would be too much disruption in their lives to now uproot them and move them to Sudbury.

[75] Counsel for the applicant submits that the status quo should be maintained, although he acknowledges that there is a valid concern that the children have missed large amounts of time from school. He suggests that a review order, requiring an assessment by the Court in six months, might be appropriate.

[76] Counsel submits that there must be a tightening up of the requirement that the respondent pay special and extraordinary expenses. The respondent has used the excuse that claims for expenses have not been put in writing. Something else must be put in place.

[77] Counsel for the applicant submits that income should be attributed to the respondent, based on his former income of $86,000 per year from the Armed Forces. Plenty of time has elapsed since the respondent’s retirement, such that he could find employment. He was an officer in the Armed Services, and he should have sufficient skill to find a responsible job.

[78] Counsel for the applicant submits that the separation agreement should be set aside. It’s terms are so unfair that it would be unconscionable to insist that they be enforced. Under its terms, the applicant gave up one-half of the jointly-owned matrimonial home; any interest in the respondent’s pension, which was worth, to the applicant, $126,000; and she gave up any claim for spousal support, even though she was not working at the time.

[79] Counsel for the respondent submits that the respondent should be awarded custody of the children.

[80] Counsel submits that the children have lost large amounts of time from school, and this is inexcusable.

[81] Counsel submits that there are significant concerns about the applicant’s parenting skills. He submits that the children have slept with their mother and they should not; she has not insisted that they do homework; she has not prepared nutritious meals; there is concern about their dental hygiene; they have been unsupervised too often; and she exaggerates their medical problems and over-medicates them.

[82] Counsel for the respondent submits that the respondent is better suited to the custodial role than is the applicant. It would be in the best interests of the children that they be in the custody of their father, rather than their mother. The applicant should have the same generous terms of access that are now enjoyed by the respondent.

[83] If custody is not altered, counsel for the respondent submits that child support should be reduced, based on the respondent’s pension income. Notwithstanding his reduced income, he has continued to pay child support in the amount of $1,232 per month. He should be paying $497 per month, and he has overpaid $27,445.

[84] Counsel for the respondent submits that there is no ground to set aside the separation agreement. There is no evidence of any material non-disclosure. In the agreement itself, the applicant acknowledged that she understood the agreement, and she was not under duress. The agreement itself was prepared substantially in accordance with a counterproposal the applicant made through her counsel. The respondent complied with its terms, including paying the amount contemplated, and discharging the Legal Aid lien. She willingly gave up any claim to spousal support.

[85] As is the case in any agreement, there is a package of rights and obligations reflected in it, and tradeoffs were made by both parties. There is simply no principle of law that would permit the setting aside of the agreement.

Analysis

[86] As is not uncommon in cases of this sort, each party has attempted to accentuate their qualities as a parent, and, to some extent, denigrate the other party. Neither parent is perfect. However, it is acknowledged that, in general, they are decent parents and they clearly love their children.

[87] There is some basis for the respondent’s concerns about the applicant’s parenting skills. In particular, the children have clearly lost significant amounts of time from school. This is a concern. However, the objective evidence would suggest that they are doing reasonably well in school, notwithstanding the absences.

[88] Ms. Armstrong, the clinical investigator, is of the view that it would be unwise to disturb the status quo. While the ultimate decision is for this Court, nevertheless the evidence of the clinical investigator is entitled to some weight. She is independent, and has no particular perspective other than the best interests of the children. Her view, with which I concur, is that the children are now settled in Oakville, and it would be unduly disruptive to change the location where they are now growing up.

[89] Having said that, I concur with the view that the respondent should have as much access to the children as possible. The applicant has agreed that the children can spend virtually the entire summer with the respondent, and I order that that continue. In all other respects, I order that the current access arrangements continue.

[90] As indicated earlier, the largest concern is that the children have missed large amounts of time from school. I agree with the suggestion of counsel for the applicant that there should be a review period, so that the Court can assess the matter and make an adjustment if significant amounts of time from school continue to be missed. I will order that a review take place after December 31^st, 2012. On that review, the applicant shall file an affidavit, on which she may be cross-examined at the hearing, in which she discloses the school attendance records for the children to the date of the review, and any report cards for them. I direct that any absences from school for more than two days must be supported by a medical certificate.

[91] I am not prepared to set aside the separation agreement. It was negotiated with the assistance of counsel, and the basis of the final agreement was a counterproposal made by the applicant. I am not satisfied that there was any material non-disclosure, and the applicant herself acknowledged, in the agreement, that she was satisfied with the level of disclosure.

[92] Accordingly, I am not prepared to disturb the property or spousal support provisions of the agreement.

[93] As far as child support is concerned, I think the respondent has had ample time to secure employment since his retirement. The respondent was perfectly entitled to retire, and take a reasonable amount of time to decide what he wanted to do. However, he has a responsibility to support his children to the extent that he is able. At age 44, he cannot expect to do nothing but collect his retirement pension, and pay child support on that basis. If he is unable to find a job at what he considers the appropriate level of responsibility, or with the exact days off that he wants, he must lower his sights and take what is available.

[94] In the circumstances, I will permit the respondent to pay child support based on his pension income of $33,000 per year, namely, $497 per month, effective May 1, 2012. However, I will not allow that to continue for very long. He must secure employment, even if it is not for the kind of work he would prefer. I will attribute income to him even if he has not secured employment after a reasonable period, or if he has a job at less than he could reasonably earn. In the circumstances, I will not order the applicant to repay any of the child support she has received.

[95] I will order a review of the issue of child support at the same time as the review on the issue of custody and access takes place. At that time, the respondent will file an affidavit, on which he may be cross-examined at the hearing, disclosing the efforts he has made to secure employment, and in particular, at the highest rate of pay that he can secure.

[96] As far as extraordinary expenses are concerned, I do not think the applicant can escape the fact that she has not put claims for those expenses in writing. She cannot expect the respondent to simply guess at what the extraordinary expenses are. Henceforth, I order that claims for extraordinary expenses be submitted, in writing, quarterly, supported by receipts. They shall be shared between the parties proportionately to their respective incomes or attributed incomes. Claims shall be paid within 10 days of submission.

[97] Under the separation agreement, the applicant was to have access to the respondent’s medical and dental plan. He no longer is covered by a plan. I order that the respondent pay all medical and dental expenses of the applicant and the children. Claims shall be submitted quarterly in writing, supported by receipts. Claims shall be paid within 10 days.

Disposition

[98] In the result, I order as follows:

(a) the respondent’s application for custody is dismissed;

(b) the current arrangements for access shall continue;

(c) the applicant’s applicant to set aside the separation agreement is dismissed;

(d) the respondent shall, effective May 1, 2012, pay $497 per month in child support based on his pension income of $33,000 per year;

(e) claims for special and extraordinary expenses shall be submitted, in writing, quarterly, supported by receipts; they shall be shared proportionately based on the parties’ respective incomes or attributed incomes; they shall be paid within 10 days of submission;

(f) the respondent shall pay all medical and dental expenses of the applicant and the children; claims shall be submitted quarterly in writing, supported by receipts; claims shall be paid within 10 days;

(g) there shall be a review of the issue of custody, access and child support after December 31, 2012; either party may bring a motion after that date, returnable before me by arrangement with the trial coordinator at Milton; each party shall file an affidavit on which he or she may be cross-examined at the hearing.

[99] I will entertain written submissions with respect to costs, not to exceed three pages, together with a costs outline. Counsel for the applicant shall have five days to file his submissions, and counsel for the respondent shall have five days to respond. Counsel for the applicant shall have three days to reply. There shall be no costs for or against the OCL.

GRAY J.

Date: April 5, 2012