SUPERIOR COURT OF JUSTICE – ONTARIO

20 Weber Street East, Kitchener ON N2H 1C3

KITCHENER COURT FILE NO.: 44707-10
DATE: August 30, 2012

RE: Blake Smith and Michelle Jerrett-Smith

BEFORE: The Honourable Madam Justice C. Lafrenière

COUNSEL:
Ms. Clarke for the Applicant Father
Mr. Bickle (for Ms. Way) for the Respondent Mother

HEARD: August 23, 2012

E N D O R S E M E N T

Matters before the court

1 . There are two motions before the court. The Applicant father’s motion, dated August 1, 2012, was first returnable August 23, 2012 and is found at Tab 23 of Volume 2 of the Continuing Record. The Respondent mother’s cross motion, dated August 16, 2012, was first returnable August 23, 2012 and is found at Tab 26 of Volume 2 of the Continuing Record. For ease of reference, I will identify the Applicant as father and the Respondent as mother in this endorsement.

2 . In the father’s motion he seeks:

a. An order that the children be under his care and supervision 50% of the time.

b. An order that the amount of child support he is required to pay to the mother take into account the applicable table amount for each of the parties, the increased costs of the custody arrangements, conditions, mean, needs and other circumstances of each of the parties and of the children.

c. An order that the mother provide a current year to date pay stub, an up to date Financial Statement, her 2011 Notice of Assessment and 2011 Income Tax Return together with all attachments.

d. An order that the mother provide proof of her common law spouse’s income including but not limited to his current year to date pay stub, Income Tax Return for 2011 and Notice of Assessment for 2011.

e. An order for costs.

3 . The mother seeks in her motion the following relief:

a. An order that the children continue to reside primarily with her.

b. An order that the father have access based on the status quo so that the father has 2 weekend periods per month, one 2 evening period per month and one evening after school until 7:00 p.m. based on his work schedule.

c. An order the father contribute towards outstanding extraordinary expenses for the children pursuant to s. 7 of the Child Support Guidelines.

d. An order the children re-attend Pace Counseling.

e. An order that the father not make derogatory comments about the mother or her spouse in the presence of the children or discuss adult or financial issues with the children.

4 . I find the background facts of the parties’ relationship are as follows:

a. The parties married on April 30, 2001 and separated on March 1, 2009.

b. They have two children:

i. Madeline Elizabeth Smith, born April 28, 2003 and now 9 years of age, and

ii. Audrey Anna Smith, born January 23, 2005 and now 7 years of age.

c. The parties entered into a comprehensive Separation Agreement dated July 18, 2009 which provides they share joint custody and the children primarily reside with the mother. The agreement provides the children are with their father alternate weekends, sometime during the week as the parties may agree, as well as specified time for religious and school holidays.

d. The father moved from Kitchener to Guelph in 2010 and returned to live in Kitchener in 2011.

e. On October 24, 2011, the parties entered into a Memorandum of Understanding which specified the times the children would be with the father from October 28, 2011 until January 29, 2012. The Memorandum provides that the parties’ respective lawyers will arrange a Settlement Conference during the month of February 2012.

f. The parties both acknowledge the schedule was created in accordance with the father’s work schedule which is attached to the Memorandum.

g. The father works alternating evening and day shifts. Evening shifts are form 1:00 p.m. until 11:00 p.m. and day shifts are from 5:00 a.m. until 3:00 p.m.

h. The parties have a Trial Management Meeting scheduled for October 29, 2012.

5 . At the argument of the motions and cross motions, counsel for the father and counsel for the mother agreed that the schedule set out in the Memorandum has continued from the end of January 2012 to date.

6 . Each party submitted that the schedule should not change pending trial.

7 . The difficulty is the parties cannot agree on precisely what the schedule is. The parties also do not agree as to the percentage of time the children are in each parent’s care according to the schedule.

8 . The father submits the children are in his care at least 50% of the time.

9 . The mother submits the children are in her care at least 60% of the time.

10 . I invited the parties to take the lunch recess and sit down with the father’s work schedule and their lawyers and write out the schedule. With that schedule, I would then make a determination as to the time share and whether or not the child support should be calculated using the basic table amount or having regard to the shared custody provision of the Child Support Guidelines.

11 . Unfortunately, when the parties returned, they reported that they were not able to agree on the schedule and asked the court to make an order.

12 . The father submits he should be paying less than the table amount because of the increased costs of the shared custody arrangement.

13 . The mother submits the father should pay the basic table amount.

14 . She also seeks a sharing of daycare expenses for 2010 and 2011. She is not seeking a sharing of current daycare expenses.

15 . The father submits he should not be obliged to pay for daycare when the wife did not require daycare to work outside the home. She only recently began full time employment having been employed two days a week in 2010 and 2011.

16 . The father further submits that he has made the mother aware that he is available to provide care for the children, due to his shift work; however, the mother has chosen a daycare provider over allowing him to have this time with the children.

17 . The parties agree there should be a mutual prohibition on discussing the litigation or financial issues with the children or in their presence and that neither parent should speak negatively about the other parent or his or her partner to the children or in their presence.

18 . The parties agree the children should return to counseling and that both parents should participate in that counseling as needed.

19 . The mother provided her financial statement and disclosure.

20 . The father still seeks her partner’s financial information.

21 . Thus the court was asked to determine, on a temporary basis, presumably pending trial as the parties are at that stage:

a. the time share for the children

b. the child support to be paid by the father

c. the sharing of s. 7 expenses, if any and

d. whether the mother’s partner should disclose his financial circumstances

22 . I found the financial statement of each party to be lacking important information.

23 . The father seeks to pay less than table amount of support but did not set out specifically in his financial statement what his increased costs are for the children.

24 . I do note the father indicates he purchases clothing for the children. If the father is paying the table amount of support to the mother, the mother should be purchasing all of the children’s clothing and clothing should be sent with the children for their use at the father’s home when they are staying overnight.

25 . The mother failed to complete Schedule B of her financial statement. This schedule is not optional. The affiant is to state whether he or she lives alone and if the answer is “no”, to provide the other resident’s or residents’ income and contribution to the household expenses.

26 . Using the father’s work schedule as the parties indicated they both intended, I have determined the time share for the period from September 6, 2012 to December 20, 2012. I started with September 6, 2012 as according to the father’s schedule he is working during the Labour Day weekend. My schedule ends on December 20, 2012, which I anticipate would be the end of the children’s school term before the Christmas break.

27 . I would expect that the parties would share the Christmas school break equally.

28 . I have provided the transition between periods of residency with each parent take place at school, wherever possible. I did so in order to maximize the time the children can be in their father’s care and to minimize the contact between the parties in the presence of the children, given they are both complaining the other is making negative comments in the presence of the children. The transition at school also avoids the need for daycare for the children for before and after school.

29 . The parties have the TMM on October 29, 2012 and if they are unable to negotiate a time share as of January 2013 or the Christmas time share another motion will have to be brought. Hopefully, the matter will be scheduled for trial soon if it is not going to be resolved.

30 . I will not make an order with respect to the daycare expenses claimed for 2010 and 2011. That issue can be dealt with at trial.

31 . I also make no designation with respect to the primary residence of the children, as that too is an issue best left for trial. There is no order in place with respect to residence at this time or with respect to time share.

32 . I also leave the issue of whether or not the father should be paying less than table amount as an issue to be dealt with at trial, when the court, hopefully, will be provided a specific budget setting out the increased costs the father has as a result of the shared custody.

33 . Therefore my order is as follows:

a. The children will reside with their father during the following dates and times:

i. Thursday September 6 from after school until Sunday September 9 at 7:00 p.m.

ii. Thursday September 13 from after school until Monday September 16 at school

iii. Wednesday September 19 from after school until Thursday September 20 at school

iv. Tuesday September 25 from after school until Friday September 28 at school

v. Monday October 1 after school until Tuesday October 2 at school

vi. Friday October 5 from after school until Monday October 8 at noon (Thanksgiving Day)

vii. Friday October 12 after school until Sunday October 14 at 7:00 p.m.

viii. Thursday October 16 after school until Thursday October 18 before school

ix. Monday October 22 after school until Thursday October 25 at school

x. Monday October 29 after school until 7:00 p.m.

xi. Thursday November 1 after school until Sunday November 4 at 7:00 p.m.

xii. Thursday November 8 after school until Monday November 12 at school

xiii. Wednesday November 15 after school until Thursday November 16 at school

xiv. Tuesday November 20 after school until Friday November 23 at school

xv. Monday November 26 after school until 7:00 p.m.

xvi. Friday November 30 after school until Monday December 3 at school

xvii. Friday December 7 after school until Sunday December 9 at 7:00 p.m.

xviii. Tuesday December 11 after school until Thursday December 13 at school

xix. Monday December 17 after school until Thursday December 20 at school.

b. If either parent is not available to care for the children during his or her time for a period of more than 4 hours, the other parent is to be contacted and asked to provide care for the children before any other person is asked to do so.

c. Both parents are to refrain from speaking negatively about the other parent to the children or with any other person in circumstances where the children could overhear the conversation.

d. The children and both parties will participate in counseling with Pace Counseling. The parents’ participation will be determined by the Counselor.

e. The mother is to provide an updated Financial Statement with Schedule B completed within 10 days.

f. Either party may seek to adjust the table amount of child support paid by the husband on a retroactive basis at the trial in this matter.

g. The issue of s. 7 expenses for daycare for the 2010 and 2011 years is reserved to the trial judge.

h. If costs are in issue, the parties may make brief written submissions. The party seeking costs within 20 days, the responding party 10 days thereafter and any reply 5 days thereafter. The parties may agree to a different schedule in writing. I require a Bill of Costs from any party seeking costs, as well as all relevant Offers of Settlement.

Lafrenière J.

DATE: August 30, 2012