ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
JULIE JONES
K. Haxell for the Applicant
- and -
WILLIAM DURSTON
M. Clarke for the Respondent
HEARD: February 6, 7, 8, 9, 10, 2012
REASONS FOR JUDGMENT
M.J. Donohue, J.
ISSUES
[1] This is a dispute between the parties regarding access, child support, spousal support and section 7 expenses.
[2] The parties resolved a number of issues which they have asked be incorporated into my order. Those that remained to be adjudicated are as follows:
a) Retroactive child support - Ms. Jones asks the court to impute income to Mr. Durston much greater than his declared Line 150 tax income to determine child support. Mr. Durston's position is that he has paid his Guideline amount owed based on reported income over the time period in question. He calculates a shortfall of only $5,319.00.
b) Lump sum spousal support - Ms. Jones seeks a lump sum compensatory spousal support award assessed on their respective incomes as of the date of separation in the amount of $100,000.00. Mr. Durston's position is that none is payable.
c) Section 7 expenses - Ms. Jones seeks 50% of incurred retroactive expenses of $37,630.00 and an order for expenses of $400.00 per month going forward. Mr. Durston's position is that he should pay 50% of the medical/dental portion of the past expenses totalling $4,560.00. For the future, he proposes paying $100.00 per month.
d) The monetary award for the property held in trust – The parties have agreed that the property and home they purchased together is held in trust by Ms. Jones for Mr. Durston based on a joint venture. They have agreed there should be a monetary award of 50% of its value to Mr. Durston subject to various deductions. The dispute is relative to the date for valuation and what deductions should apply. Ms. Jones seeks to value the property as of the date of separation. Mr. Durston seeks to value the property as of the date of trial.
e) Access - Ms. Jones seeks an order that access be in her discretion so that the children are not forced to see their father; that the alternate weekend access end at 8:00 p.m. Sunday evening; and a schedule of vacation time subject to the respondent being off work to spend it with the children. Mr. Durston seeks to have overnight access time on Wednesday night and an alternate schedule of vacation time.
f) Furniture - the final item in dispute is the piano. Ms. Jones wishes to keep it in case the girls take up lessons in the future. Mr. Durston seeks its return for his own personal use.
BACKGROUND
[3] Ms. Jones is 45 and Mr. Durston is 49. They lived in a common law relationship from February 1995 to November 1, 2005, a period of 10 years and nine months. They have two dependant daughters. Kalista was born November 1, 1998 and is now 13. Mia was born October 23, 2002 and is now nine.
[4] In 1998, the parties each borrowed $5,000.00 from their respective parents and bought the property at 1860 Christopher Road. Mr. Durston, a construction contractor by trade, did extensive work on the house and property with some assistance from Ms. Jones. He invested time and materials to update and upgrade the property. Mr. Durston was the main provider for the family. Ms. Jones devoted her time to raising the children and being a homemaker with some part-time work as a skating instructor and choreographer.
ANALYSIS
a) Retroactive Child support
[5] As Mr. Durston was self-employed, he would sometimes accept payment of jobs in cash or cheques made to him personally. His bank account for a time had a mixture of business and personal transactions. Some of the trades and subcontractors that he worked with sought payment in cash.
[6] Mr. Durston struggled with his business in 2006, 2007 and 2008 with mounting GST and tax bills. In January 2009, he found stable employment at AC Mechanical. That has continued. His wages are garnished each week to satisfy his debt to CRA for back taxes, interest and penalties in the amount of $600.00 per month. The Family Responsibility Office also takes the child support payment from each cheque.
[7] It is agreed that Mr. Durston has paid $37,630.00 in child support from November 1, 2005 to January 31, 2012.
[8] According to the Child Support Guidelines, based on his reported income at Line 150 of his income tax returns for the years 2005, 2006, 2007, 2008, 2009, 2010 and 2011, he should have paid a total of $42,949.00. When one deducts his actual payment of $37,630.00, there is at least a shortfall of $5,319.00. This is the amount submitted by Mr. Durston. For the reasons that follow, I conclude that is not the appropriate child support owing.
[9] Ms. Jones’ position is that there are two time periods to consider for the shortfall: (i) December 1, 2005 – December 1, 2008; and (ii) January 1, 2009 – May 11, 2010.
(i) December 1, 2005 – December 1, 2008
[10] Ms. Jones asks the court to impute income of $57,792.00 for each of those years. The table amount of $869.00 per month for 36 months would total $31,284.00. Mr. Durston actually paid $15,353.46 in that time frame. The claim is, therefore, a shortfall of $15,930.54.
[11] The evidence adduced to impute the higher income was a bundle of invoices for his business, Durcon Inc. These are related to one contract with the Catholic Children's Aid Society totalling $129,000.00. The company’s declared gross income shown on the financial statements was $76,182.00. The suggestion was, therefore, that he made roughly $50,000.00 more than was declared to Revenue Canada in 2005. It was admitted by Mr. Durston that various jobs were done on a cash basis and that subcontractors wanted cash at times as well. However, the reality is that, even with the extra income, there are other expenses (including subcontractors) to be considered such that the profit would be less than this gross amount.
[12] I conclude that there was likely undeclared income in 2005 and in subsequent years, however, I prefer to base the imputed income closer to the historical performance of his business.
[13] During the marriage, Mr. Durston had declared income as follows:
2000 $47,646.00
2001 34,627.00
2002 31,000.00
2003 27,010.00
2004 36,379.00
2005 19,506.00
[14] I note that the last year is suspiciously low. The records were prepared after the parties separated. The average income for the five years before 2005 was $35,332.40. I conclude that Mr. Durston has purposely declared less income to avoid paying appropriate support.
[15] It appeared that his business and personal accounts were mingled. His financial statements show the business running at a loss for 2005 and 2006 and, therefore, it is challenging to determine his true income.
[16] Although there is evidence of unreported cash income, Mr. Durston did not appear to have been able to arrange his affairs in such a way to avoid tax. There was evidence that he was not a sophisticated business man. There was no evidence, such as expensive purchases either before separation or since, that he led an extravagant lifestyle that would point to significant cash income.
[17] I note that in Ms. Jones tax returns for 2003 and 2004, she stated her spouse's income was $25,000.00.
[18] Mr. Durston's reported Line 150 income post-separation was as follows:
2006 $4,654.00
2007 24,983.00
2008 26,006.00
[19] Mr. Durston testified that the lower amount in 2006 is due to his taking four to six months staying up at his parents’ home in Thunder Bay. Although he said he was under strain in that year, I find he was nonetheless obligated to support his children. He reports income in the three years post-separation suspiciously much lower than previous years before the separation. In light of the evidence that he was able to hide some cash income, I impute higher earnings than he has declared.
[20] For those three years, I impute that he was earning similar income to his average pre-separation income being $35,332.00 per year. This recognizes that there was a cash component to his business that eludes documentation, particularly post-separation.
[21] The table amount on $35,332.40 is $526.00 per month. The amount owing for the 36 months between December 1, 2005 and December 1, 2008 is $18,936.00. Mr. Durston actually paid $15,353.46. The shortfall for that timeframe is, therefore, $3,582.54.
(ii) January 1, 2009 – May 11, 2010
[22] From January 1, 2009 (when Mr. Durston obtained employment with AC Mechanical at a salary of $57,792) he should have been paying a table amount of $869.00 per month for 17 months under the order of Justice Seppi, dated May 11, 2010. That would total $14,773.00. For that time frame, it is agreed he actually paid $4,750.00. Ms. Jones, therefore, claims a shortfall for those 17 months of $10,023.00.
[23] The total retroactive child care owing is, therefore, $13,605.54.
b) Lump Sum Spousal Support
[24] The applicant seeks a lump sum compensatory award of $100,000.00. This is based on an imputed income to Mr. Durston of $75,000.00 and a reported income to Ms. Jones of $4,183.00 at the date of separation.
[25] As noted above, I have imputed income to Mr. Durston at the time of separation to be $32,694.66.
[26] Ms. Jones admitted to earning income that was unreported from 2001 - 2006 as a skating instructor. This was less than $6,400.00 per year. Her hourly rate was $55.00. She taught between two and four hours once or twice a week. This would be a range of $110.00 - $440.00 per week. Sometimes she would work with a student for a program that would be short term. Again, there is no documentation. It seems appropriate to estimate that she earned an additional $5,000.00 per year from the skating. Her evidence was that there were no expenses associated with that income.
[27] I find her total 2005 income to be $9,183.00 and Mr. Durston's income to be $35,332.00. As a crosscheck, Spousal Support Advisory Guidelines in these circumstances would be nil. I conclude, therefore, that a lump sum payment is not appropriate.
[28] Section 33(8) of the Family Law Act provides that purposes of spousal support are to:
a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;
b) share the economic burden of child support equitably;
c) make fair provision to assist the spouse to become able to contribute to his or her own support; and
d) relieve financial hardship.
[29] Under section 34(1)(b) of the Family Law Act, the court can order a lump sum payment for support.
[30] The evidence is that Ms. Jones had a successful real estate career in her first year. She then stayed home with the children for the next seven years earning only part-time income. She was the children's primary caregiver and homemaker. She has returned to her real estate career and expects to improve her earnings in time.
[31] Her income according to her tax returns post-separation is as follows:
2006 $9,183.00 (her skating income is not declared, imputed $5,000.00)
2007 24,143.37
2008 35,397.41
2009 3,535.64
2010 30,080.10
2011 26,738.18 + 5,695.26 = $32,433.00
[32] No submissions were made regarding the need for spousal support.
[33] The evidence of Ms. Jones and her financial statement is troubling. It does not add up. In her evidence she agreed that her statements show she has run a monthly deficit of between $712.93 and $5,407.78.
[34] Reviewing the history as set out in her financial statements, it suggests a potential deficit as follows:
Year Per Month Per Year
2006 $5,407.00 $64,893(the year before she was employed in real estate)
2007 901.00 10,812.00
2008 901.00 10,812.00
2009 901.00 10,812.00
2010 3,562.00 42,744.00
2011 712.00 $8,544.00
Total Debt $148,617.00
[35] She advised that she owed $40,000.00 on her credit card and $14,000.00 on a line of credit. This accounts for debt of only $54,000.00.
[36] Ms. Jones testified that she has paid out $32,187.71 in extraordinary section 7 expenses. She has also been able to reduce the mortgage principle by $46,900.00. She drives a Lexus motor vehicle, acknowledged to be a luxury vehicle. Ms. Jones has gone two or three times to Disneyworld with her girls. She admitted that her net worth over the last six years has significantly improved.
[37] On questioning, Ms. Jones stated that she had financial help from her parents and her brother. She had no particulars of dates or amounts. She stated her father was a retired manager of Canadian Tire and her mother was a retired government worker, both living on retirement pensions.
[38] Ms. Jones' mother, Claire Jones, was called as a witness. She was not asked to confirm that she has been helping her daughter financially nor was she asked to produce evidence of cheques or bank transfers to Ms. Jones. It was expected this witness would testify to assist this aspect of the applicant's case but did not do so.
[39] As stated in Sopinka, Lederman & Bryant, The Law of Evidence in Civil Cases (3rd), LexisNexis Canada Inc., 2009, at page 377:
In the same vein adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it.
[40] I draw an adverse inference from her failure to lead evidence there was financial assistance being given to Ms. Jones.
[41] I conclude her evidence that she has had to rely on family financial help is overstated and unsupported.
[42] The Court of Appeal in Davis v. Crawford, [2011] O.J. No. 2637 at paragraph 75 states:
[75] Irrespective of whether the proposed support is periodic or lump sum, it is incumbent upon counsel to provide the judge deciding the matter with submissions concerning the basis for awarding and the method of calculating the proposed support, together with a range of possible outcomes. Further, it is highly desirable that a judge making a lump award provide a clear explanation of both the basis for exercising the discretion to award lump sum support and the rationale for arriving at a particular figure. Clear presentations by counsel and explanations by trial judges will make such an award more transparent and enhance the appearance of justice.
I have been given no such evidence.
[43] In addition, at paragraph 76, the Court of Appeal states:
[76] ...where an award of lump sum spousal support is made as a substitute for an award of periodic support, it is preferable that, with the benefit of submissions from counsel, the judge consider whether the amount awarded is in keeping with the Spousal Support Advisory Guidelines... If it is not, some reasons should be provided for why the Guidelines do not provide an appropriate result: Fisher v. Fisher (2008) 88 O.R. (3d) (C.A.), at para. 103.
[44] As the Guidelines do not provide for support (as set out in paragraph 29 above) and there is no other reason to award same, I decline to do so.
c) Section 7 Extraordinary Expenses
i) Past expenses
[45] Ms. Jones provided receipts totalling $26,612.99 expenditures for day camps, swimming, soccer, dance classes, gymnastics classes, piano, dentist visits, and prescriptions since separation.
[46] Mr. Durston agrees to honour 50% of the medical/dental bills of $4,560.00 for a net payment of $2,280.00.
[47] Ms. Jones estimates, however, that she has actually incurred $32,187.71. Her evidence in that regard was credible and consistent with her efforts described to do as much as she could for her daughters. I accept that she has incurred at least that amount. Ms. Jones did not have receipts for Kalista's two school trips which cost $425.00 and $450.00 but she requested Mr. Durston contribute to them and he refused.
[48] At various times, Ms. Jones has requested Mr. Durston to either agree to these expenses or assist with the cost of these expenses. The evidence is that he consistently refused on the basis that he could not afford it. Evidence was provided of loans made to him by friends, gifts made to him by his father, debts owed for back taxes and his financial statements showing almost no discretionary income. I accept that Mr. Durston has been struggling financially for a number of years.
[49] The issue then becomes what expenses are “extraordinary” according to the law and, therefore, payable by Mr. Durston.
[50] The first question is whether the requesting spouse can “reasonably cover” the expense. On the face of Ms. Jones’ financial statements noted, she has consistently run a deficit so there is at least the suggestion that she could not.
[51] The second question is whether the expenses are “extraordinary” taking into account section 7(1.1)(i) which states:
Special or extraordinary expenses
- (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities. O. Reg. 391/97, s. 7 (1); O. Reg. 446/01, s. 2.
Definition, “extraordinary expenses”
(1.1) For the purposes of clauses (1) (d) and (f),
“extraordinary expenses” means
(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent’s or spouse’s income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or
(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,
(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child,
(iv) the overall cost of the programs and activities, and
(v) any other similar factors that the court considers relevant. O. Reg. 102/06, s. 1.
Sharing of expense
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. O. Reg. 391/97, s. 7 (2).
Subsidies, tax deductions, etc.
(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. O. Reg. 159/07, s. 2.
Universal child care benefit
(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit. O. Reg. 159/07, s. 2. (emphasis added).
[52] The court takes into account Ms. Jones' income including support; the nature and number of educational programs and extracurricular activities; the special needs and talents of the child and the overall cost.
[53] I did not hear much evidence directed at satisfying these tests. Ms. Jones stated that Mia was put into the gymnastics program because she showed special ability at a very young age. As well, it was agreed before and after separation that Kalista was extremely involved in dance, hence, the two weekly classes with two performance costumes.
[54] Mia's gymnastics receipts total $3,142.07. The total involved for the girls’ dance is $14,239.17 of which two thirds appear to be for Kalista, which would be $9,491.83. I characterize one of her classes to be extraordinary and, therefore, allow $4,745.91 of that expense.
[55] The expense must be “reasonable in relation to the means” of the parents. When looking at reasonableness, I consider it appropriate to consider Mr. Durston's debt load in the last six years. (See Bland v. Bland, [1999] A.J. No. 344 (Alta. Q.B.))
[56] I accept the two school trips for Kalista totalling $875.00; Mia's gymnastics of $3,142.07; half of Kalista's dance expenses noted above, $4,745.91; and the medical/dental bills as agreed, $4,560.00. These would total $13,322.98.
[57] I order Mr. Durston to pay 50% of those past extraordinary expenses of $13,322.98 for a net payment of $6,661.49.
ii) Future expenses
[58] Ms. Jones proposes an additional $400.00 a month ($200.00 per child) towards section 7 expenses. At the end of each year, she would be called to account for expenditures to illustrate that these have not been overpaid.
[59] Mr. Durston proposes to pay $1,200.00 per year or $100.00 per month which would cover half the cost of dance for both children.
[60] For the reasons and concerns set out regarding the retroactive section 7 expenses, I order Mr. Durston to pay $100.00 per month per child for these expenses with Ms. Jones to provide an accounting every December 31 to demonstrate the use of the funds.
d) Monetary award for the property held in trust
[61] For seven years, Mr. Durston paid the mortgage, taxes, utilities and insurance on the Christopher Road property. He was not sophisticated in business matters and, although providing well for the house and family, got behind on GST and personal taxes. In 2003, the couple refinanced the mortgage on the house to pay the taxes. The house was put into Ms. Jones’ name alone to avoid future creditors. Over the next two years, the GST and tax liability grew again such that a substantial amount was owed at the time of separation.
[62] The parties agreed that, although 1860 Christopher Road was in Ms. Jones’ name alone, it was held in trust for Mr. Durston on the basis of a joint venture. This is in accordance with the ruling of the Supreme Court of Canada in Kerr v Baranow, 2011 SCC 10, [2011]1 S.C.R.269 para 85:
...the common law of unjust enrichment should recognize and respond to the reality that there are unmarried domestic arrangements that are partnerships: the remedy in such cases should address the disproportionate retention of the assets acquired through joint efforts with another person. This sort of sharing, of course, should not be presumed, nor will it be presumed that wealth acquired by mutual effort will be shared equally. Cohabitation does not, in itself, under the common law of unjust enrichment, entitle one party to a share of the other's property or any relief. However, where wealth is accumulated as a result of a joint effort, as evidenced by the nature of the parties' relationship and their dealings with each other, the law of unjust enrichment should reflect that reality.
[63] It was agreed that Mr. Durston's interest amounts to 50% of the value of the home subject to adjustments.
[64] The initial dispute relates to the date the court values the property. Ms. Jones proposes the home be valued at the date of separation, November 1, 2005. If that were so, the parties agreed that the valuation is $355,000.
[65] Mr. Durston proposes that the home be valued as at the date of trial, February 8, 2012, which the parties agree is $540,000.
[66] It is noteworthy that, for the seven years that the family lived in the home, Mr. Durston paid the mortgage and utilities and expenses. At no time were those expenses not paid. In fact, Mr. Durston preferred the needs of the house and family over paying his necessary tax debt. Mr. Durston also paid for materials and did extensive renovation on this 1955 home including:
• moving water tank and water lines to lower level and installing a gas water heater • removing and installing a new roof • repairing the chimney and installing a new cap • removing the deck and cutting and installing custom stone patio • removing bearing wall in the basement and installing a structural beam • installing an electrical panel and wiring • extensive renovations including the exterior walls of the recreation room • custom washroom renovation (incomplete) • central vac system installed • ceramics laid in entrance hall and kitchen • new hardware and paint on kitchen cabinets with new countertop and sink • basement window replacements • soffit ventilation holes cut • new air conditioning unit installed • new gates built and installed
[67] It was agreed that these renovations and upgrades improved the value of the house. I find that Mr. Durston's contributions to the property were direct and substantial. The value in the property has gone up and Mr. Durston is entitled to benefit from that increase. As Mr. Durston has had to wait for six years to obtain his share, it would be appropriate to value the property based on today's market.
[68] This would be consistent with British Columbia Court of Appeal decision of McMillan v. Johnson Estate [2011] B.C.J. No. 173 involving a constructive trust found between common law spouses, one of whom had passed away. The court concluded that:
…the remedy should be assessed using a value survived approach, so as to accurately reflect the degree to which the plaintiff’s money or services contributed to the value of an asset held exclusively by the defendant.
In summary, in joint enterprise cases where the plaintiff's contributions over a long-term relationship become inextricably linked to the defendant's property, the appropriate remedy will be a proprietary one, either monetary or trust because as is the case here, the plaintiff jointly created and contributed to the asset value. By this same logic, the asset should be valued as at the date of trial to reflect the fact that the parties' usual intention is to share in both the risks and rewards of ownership.
[69] This “value survived” approach was noted in Ontario by Justice Ingram in the case of Jackson v. McNee, 2011 ONSC 4651 para 67.
[70] I find the appropriate value is, therefore, the date of trial being $540,000.00. From this would be deducted the mortgage owed at the date of separation of $235,348.00 for a net value of $304,652.00. (Ms. Jones has been able to pay down the mortgage by $55,631.00; however, using the mortgage amount as at the date of separation more fairly represents the deduction.) Ms. Jones has paid for the mortgage for the last six years. In this calculation, using a value survived approach, there is no need to deduct occupation rent or add pre-judgment interest. Ms. Jones keeps the value of the decrease in the principal of the mortgage as I have deducted the mortgage owed at the date of separation. Mr. Durston's 50% share of that net value would be $152,326.00.
[71] Mr. Durston owed, at the date of separation, personal income tax of $39,712.00 and GST of $27,848.00. He seeks a credit for half that $67,560.00 debt owing, or $33,780.00. In 2003 when his taxes were outstanding, Ms. Jones refinanced the mortgage to ensure those bills were paid.
[72] The evidence was that Ms. Jones was unaware of the unpaid taxes that accrued after that date. I find that she cannot be called upon to share in paying his taxes when she was excluded from the business details and financial situation.
[73] I, therefore, deny the claimed credit to Mr. Durston of $33,780.00.
[74] Mr. Durston seeks a credit for one half of a debt he says he owed to his late father, Gary Durston. He claims his father loaned him $9,500.00 up to the date of separation.
[75] However, Mr. Durston and his brother used the words “gave” and “lent” interchangeably. There was evidence that the money was transferred but the email from the late Gary Durston only referred to gifts. I am not satisfied that there was a loan arrangement. I do not allow a credit to Mr. Durston for the monies given by his father.
[76] From Mr. Durston’s share of the home, I would deduct the past child support payment of $13,749.54, and the section 7 expenses of $6,661.49.
e) Access
[77] Ms. Jones seeks to limit access by her discretion and not force the girls to see their father. Evidence had been given of some instances of nine year old Mia being unhappy while with her father. She called her mother in tears. There was no evidence of 13 year old Kalista being unhappy with her father.
[78] Communication has been unpleasant between the parties. The financial situation for each of them has been hard.
[79] Access has been every other weekend. Mr. Durston was to have four hours with the girls after school every Wednesday. This became a problem in the last two years when Mia was signed up for competitive gymnastics class on Wednesdays. Mia also has gymnastics on Monday evenings. Both girls have dance class on Tuesday evenings. Kalista has dance class on Thursday evenings.
[80] Vacation access has been ad hoc and subject to stress on both parents as there were last minute changes, disagreements and tension over these decisions.
[81] Ms. Jones gave evidence that the girls “did nothing” with their father and he was spending time in the garage, leaving them alone. Mr. Durston gave evidence that he took them ski-dooing, tubing, waterskiing, and horseback riding.
[82] Evidence was given by Ms. Jones that Mr. Durston, in his summer access, was still working and took the girls to stay with their aunt and cousins on his side of the family such that he did not see them other than on the weekends. Mr. Durston had difficulty remembering specific access incidents and was generally casual about what they did as a family.
[83] Ms. Jones sought to end the alternate weekend access on Sunday evening at 8:00 p.m. She stated that Mia, in particular, was tired Monday mornings. Mia then had a strenuous gymnastics workout on Monday night. She started her week over-tired.
[84] I am persuaded that it would be wise for the children to return Sunday night to start their week to allow them to be settled and rested before their busy week begins.
[85] Mr. Durston seeks to have the four hours on Wednesday night extended to an overnight visit. Mia has gymnastics class that night. He is prepared to take her there, have time with Kalista during that class and then take them to his home for that overnight.
[86] Overall, it appears he has a steady work schedule. There was unpleasantness between the parents over the Wednesday evening access. Mia's gymnastics class certainly restricts the time he can converse with her. My impression is that the girls and their father have been distanced over the last year as they have had so much less time with him. I am concerned that, if access is left to the choice of the girls, their father will be less and less of a priority in their lives.
[87] It is in the best interests of the children to work now to build that relationship and so I order the Wednesday night overnight access with the respondent. I order the balance of the access provisions largely as requested by Ms. Jones as follows as Mr. Durston’s proposals did not comment on these points:
Mr. Durston shall have regular access to the children, Kalista Durston, born November 1, 2005, and Mia Durston, born October 23, 2001, on alternating weekends, from 4:00 p.m. Friday until 8:00 p.m. Sunday. If the Friday or the Monday is a statutory holiday, Mr. Durston’s access shall commence at 6:00 p.m. on Thursday if the Friday is the statutory holiday, and Mr. Durston’s access shall be extended to Monday at 8:00 p.m. if the Monday is the statutory holiday. This is subject to paragraphs 4 and 5 that follow.
Mr. Durston shall have access to the children Wednesday evenings overnight from 3:45 p.m. until Thursday at 8:15 a.m., provided that, if one or both of the children have an extra-curricular activity that falls within that timeframe, he shall take the child or children to that activity. Mr. Durston is to take them to school on Thursday morning.
The following provisions shall apply to holidays:
Mr. Durston shall have the children for alternating March breaks, commencing with the March break in 2013. If Mr. Durston’s access weekend is the weekend that March break commences, Mr. Durston’s March break access shall be from that Friday at 6:00 p.m. until the following Friday at 8:00 p.m. If Mr. Durston’s access weekend is the weekend at the end of the March break, Mr. Durston’s March break weekend shall be from the first Sunday at 8:00 p.m. until the second Sunday at 8:00 p.m. Ms. Jones shall have an uninterrupted seven day period with the children during their March breaks in even years, commencing in 2012. The seven days shall be dependent upon which weekend Mr. Durston has his access. Should Mr. Durston have access on the first weekend of the March break, Ms. Jones’ week shall be from that Sunday at 8:00 p.m. until the commencement of school after the March break. Should Mr. Durston have access on the second weekend, Ms. Jones’ week shall be from the end of school until 6:00 p.m. on the following Friday.
In the event that Easter is Mr. Durston’s weekend for access, the applicant shall have the children with her from 1:00 p.m. until 8:00 p.m. on the Sunday. In the event the Easter weekend does not fall on an access weekend, Mr. Durston shall have the children with him from 1:00 p.m. until 8:00 p.m. on the Sunday.
In the event the Thanksgiving weekend is Mr. Durston’s weekend for access, Ms. Jones shall have the children with her from 1:00 p.m. until 8:00 p.m. on the Sunday. In the event the Thanksgiving weekend does not fall on an access weekend, Mr. Durston shall have the children with him from 1:00 p.m. until 8:00 p.m. on the Sunday.
Mr. Durston shall have one week in July and one week in August, the weeks being non-consecutive. Mr. Durston shall notify the applicant by the 1st day of April of each year as to his choice of weeks. For 2012, Mr. Durston shall notify Ms. Jones his choice by June 1st.
If the children are not otherwise with Mr. Durston on Father’s Day weekend, the children will be with him from 1:00 p.m. until 8:00 p.m. on the Sunday. If Mother’s Day falls on Mr. Durston’s weekend, the children will be with the applicant from 1:00 p.m. on the Sunday until the commencement of school on Monday morning.
Mr. Durston shall have the children with him for one-half of their Christmas holiday, the days and times to be agreed upon with the applicant.
Ms. Jones shall not schedule an extra-curricular activity for a child on Mr. Durston’s access time without his consent.
The parties shall allow telephone access between the children and the non-access parent on Saturday evenings and during holiday access. The parties shall allow the children to use a cell phone to contact either parent provided that Ms. Jones pays all costs of the cell phone.
If Mr. Durston is unable to spend his scheduled time with the children, he will give Ms. Jones at least 48 hours written e-mail notice.
Mr. Durston shall be responsible for picking up and dropping off the children.
f) Furniture
[88] The parties have agreed now on all items sought, apart from the piano.
[89] Mr. Durston purchased the piano for his own use. In the past, the children were taking lessons and using it. Currently, they are not in lessons.
[90] Ms. Jones has kept the bulk of the furniture purchased during their time together. Mr. Durston has not asked for or taken many items.
[91] I order that the piano be transferred to him for his own use at his cost.
Consent Orders
[92] The parties agreed to a number of consent orders as follows:
Sole custody is to be in favour of Ms. Jones.
Ms. Jones is to discuss with Mr. Durston any major decision affecting the children and receive his input. However, her decision is final.
Mr. Durston is to have access directly to third parties involved in the children's lives such as doctors, dentists and other professionals.
Ms. Jones is to provide 120 days notice of any change of residence of the children.
There shall be no application to change the names of the children by either party.
Mr. Durston will maintain his current life insurance policy and designate the children Kalista and Mia as beneficiaries so long as they are dependant. His brother, James Durston, is to be trustee of the policy in favour of the children.
If either party has extended health available through the workplace, they shall cover the children under that plan so long as they are dependant.
Ms. Jones agrees to give Mr. Durston his stainless steel fridge, coffee table, and three paintings.
The children are to be allowed telephone contact with Ms. Jones on Saturday evening while they are with Mr. Durston and that will be facilitated by Mr. Durston.
Commencing February 1, 2012, Mr. Durston will pay child support in the table amount of $929.00 per month based on his 2011 income of $61,189.00
Costs
[93] Without the benefit of argument, I can say that I would not be inclined to make an order as to costs, as success has been divided. Nevertheless, if the parties are unable to agree, they shall provide written submissions of three to five pages or less not including any offers to settle within 15 days of this order. Any response is to be provided within 15 days thereafter. There shall be no right of reply.
M.J. Donohue, J.
Released: May 24, 2012