ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: D22559/10
DATE: 2012-09-25

B E T W E E N:

Raymond Douglas Waters Applicant

Paul M. Bauerle, for the Applicant

• and -

Rebecca Margaret Waters Respondent

Deborah R. Squires, for the Respondent

HEARD: June 14, 15, 16 and 17, 2011, February 27, 28, 29, March 1 and 2, 2012, June 28, 2012

The Honourable Justice J. R. Henderson

REASONS FOR JUDGMENT

INTRODUCTION

[ 1 ] The applicant, Raymond Waters (hereinafter called “the husband”) and the respondent, Rebecca Waters (hereinafter called “the wife”) separated in May 2010. Since that time they have been engaged in an emotional dispute with respect to the parenting of their children, Luke born September 28, 2006, and Ruby born November 28, 2008.

[ 2 ] The children have been in the de facto custody of the wife since the separation. The wife submits that she is, and always has been, the primary caregiver for the children. At this trial the wife requests that she be awarded sole custody of the children, and that the current parenting regime, with some minor adjustments, remain in place.

[ 3 ] The husband is an active involved parent. Generally, the husband has had access to the children every Wednesday evening and on weekends. He claims that the wife has been attempting to limit his involvement in the children’s lives. At this trial the husband requests that he be awarded sole custody of the children, or in the alternative that there be a form of parallel parenting.

[ 4 ] Most of the evidence at this trial dealt with the issues of parenting, custody, and access. There were also a few minor financial issues that were raised, and both parties request a divorce.

[ 5 ] The issue of ongoing periodic child support was not dealt with at this trial. A temporary child support order is in place and both parties wanted to resolve the parenting issues before addressing any changes to the support order.

BACKGROUND

[ 6 ] The husband is currently 43 years of age; he has a grade 13 education; and he has some university credits from Brock University.

[ 7 ] The husband has worked for the Regional Municipality of Niagara for the last 14 years, and currently works as a systems administrator in the computerized maintenance department. His hours of work are Monday to Friday from approximately 8:00 a.m. to 4:30 p.m.

[ 8 ] The wife is currently 38 years of age; she has a grade 13 education; she has taken some accounting courses at Niagara College; and she has her Ontario Motor Vehicle Dealer’s licence.

[ 9 ] The wife worked during the marriage, primarily in the field of automobile sales, and she has continued to work in that field until recently. In the past few years the wife has changed jobs several times, and as of April 2012 became the director of an Herbal Magic Centre. She currently works Monday to Friday until approximately 5:00 or 6:00 p.m. each day.

[ 10 ] The parties initially cohabited together in Niagara Falls commencing in approximately October 2001, and then separated in September 2003. At that time the husband remained living in Niagara Falls and the wife obtained work on a cruise ship.

[ 11 ] The parties reconciled during 2005, and began cohabiting again in Niagara Falls by early 2006. Luke was born in September 2006. The parties were married on April 19, 2007 in Playa del Carmen, Mexico, and thereafter lived in a house on Dorchester Road in Niagara Falls, Ontario. In 2009 the parties had a new house built on Mary Street in Niagara Falls. They lived at the Mary Street residence until their final separation on May 18, 2010.

[ 12 ] The wife took 12 months off of work after the birth of each child to care for that child. When the wife returned to work I accept that the wife continued to be the primary caregiver for the children, but I also accept that the husband tried to be an involved parent, and he would assist with the children’s everyday needs.

[ 13 ] The incident that led up to the final separation of the parties commenced in the evening of May 17, 2010 when the husband confronted the wife about her affair with her co-worker/supervisor, Tom Lim (hereinafter called “Tom”). There was a lengthy heated argument, but the parties remained in the same house that evening. On the next morning, May 18, 2010, the wife says that she was using the husband’s laptop when she inadvertently found pictures of the husband cross-dressing as a woman that were posted on a Flickr account on the Internet. She said that these pictures came as a shock to her.

[ 14 ] Thereafter, there was another heated confrontation between the parties on the morning of May 18, 2010. Police officers were called to the home by the wife because of alleged threats by the husband. Eventually, the husband left the matrimonial home to live with a friend, and the wife and children remained in the matrimonial home. The parties have not reconciled since that date.

[ 15 ] In November 2010 the husband moved into a two bedroom apartment located in the lower level of a house on Milomir Street in Niagara Falls, and has resided in that apartment since that time. The wife and children remained in the matrimonial home on Mary Street until it was taken over by the mortgagee and sold by power of sale. In March 2011 the wife and children moved into an apartment-style condominium on McLeod Road in Niagara Falls, and have resided there to date.

[ 16 ] The relationship between the husband and wife has been volatile both during and after the separation. Police officers were called by the wife on the date of the separation, and on three other occasions thereafter, the latest being February 2012. On each occasion police officers were called because of an alleged threat of violence by the husband. No charges were laid by police as a result of any of these incidents.

[ 17 ] There is no evidence of any significant physical abuse, but the wife has testified that she has repeatedly had to deal with the husband’s anger and threat of violence. She says that the husband has raised his fist as if to hit her and he has punched holes in the walls at the Dorchester Road house.

[ 18 ] The husband had the children with him for the first weekend after the separation. Then, the husband alleges that the wife refused to allow him to have access to the children for the next two weeks. However, by early summer 2010 the husband and wife had agreed to a loose access regime. During this time the children had their primary residence with the wife, and the husband was seeing the children regularly on weekends.

[ 19 ] The court, by way of the temporary order of October 20, 2010, awarded temporary custody of the children to the wife with access to the husband every Wednesday from after daycare/school to 7:15 p.m., and every Friday after daycare/school to Saturday at 7:15 p.m. That access arrangement has remained in place since October 20, 2010, and has functioned without serious difficulty.

[ 20 ] The temporary order of October 20, 2010 also provided that the husband pay child support to the wife in the amount of $963 per month based on his income of $64,397 per year, and the husband has complied with that temporary child support order to date. The temporary order further provided that each of the husband and wife would pay 50 percent of the daycare expense, payable directly to the daycare provider.

CUSTODY AND PARENTING ISSUES

1. THE WIFE

[ 21 ] The husband testified that the wife was a good mother who loved the children and who was very capable of caring for the children. However, the husband testified that the wife often manipulates him so as to limit his involvement with the children.

[ 22 ] I find that the wife is bright, articulate, and engaging. However, I also find that the wife can be deceitful, and that she tries to manipulate situations to make the husband look bad. In my opinion the husband’s assessment of the wife is fairly accurate.

[ 23 ] At this point it is important to note that I also accept the wife’s testimony that the husband is controlling and obsessive, and that he has an anger problem. He is prone to overreact to emotional situations.

[ 24 ] I find that the wife is well aware of the husband’s emotional tendencies, and often goads the husband by making inflammatory remarks or by not being completely frank with him. In doing so I find that the wife hopes that the husband will overreact, do something foolish, and thus look bad.

[ 25 ] There are numerous examples of this dynamic in play. Hard copies of many email conversations and chats between the parties were filed as exhibits. This court need only look at a few of those email strings to observe angry obsessive remarks by the husband, goading provocative remarks by the wife, and escalating emotions on both sides. Often, this problem arose in the course of a legitimate discussion that strangely resulted in the parties reaching an agreement on a parenting issue.

[ 26 ] One example occurred in an email string that started in July 2010 when the wife raised the issue of marriage counseling, and the husband responded angrily. The wife then responded by writing that the situation was only temporary and that she would find someone else for her son “to call daddy”. That remark generated a string of abuse and profanity from the husband. The wife responded with her own criticisms of the husband. In the midst of this email string was a discussion about Ruby having a rash and how the parties would provide the daycare centre with wipes and/or powder.

[ 27 ] Another example occurred in an email string that started in March 2011. In this email discussion the parties exchanged a great deal of useful information with respect to the extracurricular activities of their children, and the desires of each of them as far as ongoing extracurricular activities for the children. However, the email is spiced with obscenities and insults both ways.

[ 28 ] Another fractious discussion started in October 2010 and continued into early 2011. Immediately after the October 20, 2010 temporary order was made, the wife made a posting on Facebook in which she stated that she had “won” the case and had full custody. This upset the husband and generated a string of profane emails. Thereafter, there were several emails with respect to issues at daycare and medical appointments. Throughout this exchange the wife reminded the husband that she had full custody and she would make all the decisions for the children. Further, in response to a threat by the husband to contact the children’s doctor, the wife wrote, “They know I have full custody. They won’t tell you anything.”

[ 29 ] The wife’s manipulative tendencies were exemplified by her evidence with respect to the husband’s cross-dressing. The wife testified that the main reason for the separation was because she found photographs of the husband, dressed in women’s clothes, on the Internet. She was shocked by this discovery and could not accept it. However, the wife later testified that the husband and the wife had previously engaged in sexual activity together, on consent, with the husband dressed as a woman. The wife testified that this had happened only once and that some pictures may have been taken at the time. The husband testified that the cross-dressing was the wife’s idea and that it happened on several occasions several years ago.

[ 30 ] In my view the wife was not being entirely candid about her shock at discovering the pictures of the husband on the Internet. By her own admission she knew that this cross-dressing had occurred on at least one previous occasion. Also, on this point I accept the husband’s evidence that the parties had engaged in this activity together on several occasions. Further, in her affidavit on the interim motion the wife deposed that she had found these pictures on the Internet one week before the separation, and this discrepancy was never adequately explained. In my opinion, discovering the pictures in May 2010 may have been a surprise to the wife, but the cross-dressing should not have been a shock.

[ 31 ] What is clear is that the wife tried to use the husband’s cross-dressing for her own benefit in this action. Although the wife testified that she did not believe that the husband’s cross-dressing affected his ability as a parent, it was obvious that the wife wanted to use this behaviour to assist her in her custody claim. She testified that it was Tom’s idea to use the pictures for her benefit, but in my view, this testimony was simply an attempt by the wife to avoid responsibility for her own decision to use these pictures to make her husband look bad.

[ 32 ] Further, the husband testified, and I accept, that the wife had previously taken pictures of him in women’s clothing and throughout their marriage had threatened to expose him to family and friends if the wife did not get her way. The wife of course denied this. However, shortly after the separation the wife did exactly what the husband said she had threatened to do. The wife sent copies of the photographs to Fiona Sawyer (“Fiona”), a friend of the husband’s at whose home the husband was living after the separation. In my view there is no plausible explanation for the wife sending pictures of the husband dressed as a woman to a family friend except that the wife wanted to embarrass the husband and demean him in front of his friends in order to gain an advantage.

[ 33 ] The wife admits to sending these photographs to Fiona and to talking to Tom about them, but denies sending them to anyone else. However, excerpts from her Facebook page suggest that the wife also sent the photographs and/or talked about the photographs to two other persons. In one chat she refers to her husband as a “cross-dressing homo”.

[ 34 ] Another incident in which the wife’s manipulative traits were exemplified involved her alleged suicide attempt in early October 2010. The husband testified, and I accept, that she told him that she was going to jump over the Falls because she was pregnant with Tom’s baby. The wife’s conduct caused the husband to arrange for counseling for her through his employee assistance program. A few days later, the wife sent an email to the husband that indicated that she was again suicidal. Thus, the husband attended at the house in an emotional state, and ultimately a heated argument ensued.

[ 35 ] In her affidavit, the wife denied that she was suicidal, and simply deposed that “I am not pregnant nor did I ever tell Ray that I was”. However, in her email to the husband dated October 7, 2010 the wife wrote, “I cannot take the stress … this is all on your hands now … you win ... I give up…”. All of this suggests that the wife is going through absolute despair.

[ 36 ] Further, there is also a letter written by the wife to Tom dated October 5, 2010 in which the wife wrote, “I cried most of the night until early morning… all I needed you to do was protect me from that… I had hoped to be able to share my news of a baby when we were alone.”

[ 37 ] Contrary to what could be inferred from the above-mentioned email and letter, in direct examination, the wife was adamant that she was not pregnant at the time. However, in cross-examination the wife acknowledged that she believed that she was pregnant at the time because she had registered what she called “a false positive” on a pregnancy test. In my view the wife’s conduct surrounding this incident was manipulative and her testimony was misleading.

[ 38 ] The wife also regularly has called for police assistance. I accept that in part it was necessary to do so because of the bullying aggressive behaviour of the husband. However, I also find that the wife tried to manipulate the husband by ensuring that he was under threat of police intervention at all times.

[ 39 ] It is significant that the wife called police about the husband on six occasions, but on only one occasion were charges contemplated. That occasion was a result of an incident in July 2003. By the time the police arrived the husband had left the home, but the husband went to the police station where he was arrested and placed in a cell. Thereafter, the wife went to the police station, spoke with an officer, and asked that the charges be withdrawn. In my view this incident is indicative of the fact that the wife simply wanted to exert some control over the husband, but really did not want him arrested or charged.

[ 40 ] There was another incident at the skating rink in February 2012. This should have been a positive incident for the wife because the wife had agreed to the husband’s request to have the children go to a skating show on a day on which the husband did not have access. However, it was a long day at the skating rink and the wife decided to leave early with the children. This led to a confrontation between the husband and the wife in the dressing room.

[ 41 ] I find that both the husband and the wife escalated the situation. There was no need for the husband to angrily enter the changing room, and there was no need for the wife to escalate the situation by shouting at the husband. I find that the incident ended when the wife started shouting, “Go ahead hit me” in a loud voice so as to attract the attention of the organizers of the event. I find that the wife had hoped that her outburst would cause others to believe that she was physically threatened by the husband, when that was not the case.

[ 42 ] Overall my finding with respect to the wife is that she is a good mother and is able to care for the children. However, she is manipulative and deceitful. Further, she is smart enough to manipulate the husband by goading him into situations that make him look bad.

2. THE HUSBAND

[ 43 ] The wife describes the husband as a person who can be a good parent and who loves his children. She says that he is capable of caring for the children and wants to be involved with the children. She also says that her husband has a problem with his anger; he is controlling; and he is obsessive about knowing everything about her and her life. In my view the wife’s assessment of the husband is also fairly accurate.

[ 44 ] The husband admits to having anger issues, but that he has taken an anger management course that has helped him control his problem. I accept that he is attempting deal with this issue, but I find that he does not have this problem under control. The email strings that have been filed clearly show that the husband has an anger management problem. Email after email contains profane verbal abuse by the husband of the wife. I accept that the wife goads the husband, but the husband seems unable to stop himself from losing control and inflicting verbal abuse on the wife.

[ 45 ] Thankfully, the anger issues have not yet led to physical abuse. The husband is a large man who could cause significant damage if he carried out his verbal threats. The wife has testified that he has pulled his fist back as if to punch her but has not done so. I accept that the husband punched holes in the wall on occasion at the Dorchester Road home.

[ 46 ] One example of the husband’s anger problem occurred in November 2002 after a hockey tournament. The wife left the tournament early and went home. The husband was upset because he had a birthday party planned for the wife. When the husband got home the wife was asleep in her bed. I accept the wife’s evidence that the husband angrily grabbed her by the legs and yanked her out of the bed while she was sleeping. He then went into an angry rage in which he threw things and threatened her. All of this was done simply because the wife did not act in the manner that the husband wished.

[ 47 ] Moreover, the husband is exceptionally obsessive and controlling. On the evening prior to the separation in May 2010 both of the parties needed to go to work the next day. After a heated discussion the wife attempted to retire to the bedroom to go to sleep. I accept the wife’s evidence that throughout the night the husband woke the wife up again and again in order to call her names and verbally abuse her. I accept the wife’s evidence that the next morning the husband angrily grabbed a towel that was around the wife’s head and yanked it off of her and told her that he would kill her.

[ 48 ] Another incident occurred shortly after the separation in September 2010. The wife and children remained in the matrimonial home and the husband had all of the utility bills, which were in his name, directed to his new address. The husband did not pay the gas bill and the gas to the matrimonial home was cut off without notice to the wife. The husband responded to the wife’s accusation that he had arranged for the gas to be cut off by saying that the children could not return to the matrimonial home because there was no heat and therefore the children must remain with him. I find that the husband’s emotional issues caused him to orchestrate the loss of heat to the wife’s residence for the sole purpose of hurting the wife.

[ 49 ] The husband’s obsessive behaviour is fairly obvious when you consider the husband’s approach to the wife’s Facebook page. Many of the email strings and chats that were produced as exhibits at this trial were screen captures of the wife’s Facebook page. Those screen captures however were not produced by the wife, but were introduced at this trial by the husband. The husband admitted that from the date of the separation onward he was regularly browsing the wife’s Facebook page in an attempt to read her chats and keep up with her activities. Regularly, he would make hard copies of the wife’s chats and postings for court purposes.

[ 50 ] When the wife edited her Facebook page so as to bar Raymond Waters from her page, Raymond Waters created an alias, Vinny Finuce, and browsed the wife’s Facebook page as Vinny Finuce. This continued for quite a long time until the wife edited her Facebook page once again. Also, I accept that the husband on occasion logged into the wife’s Facebook page as the wife and used the wife’s identity to enter into chats with other persons.

[ 51 ] The wife has now changed her password and barred the husband and Vinny Finuce from her Facebook page. However, even though the husband cannot access the Facebook page, he acknowledged that his co-workers regularly access the wife’s Facebook page and keep him apprised of her goings on.

[ 52 ] Lastly, I find that the husband’s obsessive behaviour has caused him to get third parties involved in the dispute between the husband and the wife. Not only has he elicited the help of his co-workers in monitoring the wife’s Facebook page, he has also involved at least one of the wife’s co-workers, and he has emailed information about this case to the wife’s parents and to her sister.

[ 53 ] In the temporary court order of October 20, 2010 the husband was ordered not to contact the wife’s employers or co-workers. Contrary to that order the husband has been in contact with Tom. The husband’s excuse is that Tom initiated the contact with him. However, the husband went even further and contacted Tom’s wife, Amelia, and has remained in contact with Amelia to date. In fact, some of the exhibits that were filed at this trial were filed by the husband after he received them from Amelia.

[ 54 ] Overall, I find that the husband is a good parent who is capable of caring for the children. However, I find that the husband has an anger management problem, and that he exhibits obsessive and controlling behaviour that is directed toward the wife.

3. THE CHILDREN

[ 55 ] Despite the childish behaviour of their parents, Luke and Ruby are both doing remarkably well. Both parties agreed that the children are doing well and have come through this dispute unscathed.

[ 56 ] Both of the children started daycare at about 15 months of age. The husband and the wife had agreed that the children would attend a French language school. Together, they were able to arrange for the children to be enrolled at Notre Dame De La Jeunesse, and the daycare centre, known as Les Petite Etoiles, that is attached to that school.

[ 57 ] Luke attended daycare full time Monday to Friday from 15 months of age. During the last school year Luke attended kindergarten in the morning and then went to daycare after school. Ruby has also been attending daycare since she was 15 months of age and has continued full time at daycare to date. She starts kindergarten in September 2012.

[ 58 ] At present the husband picks the children up from daycare on Wednesdays and Fridays, and the wife picks the children up from daycare Mondays, Tuesdays and Thursdays. Both parties at present are very involved, separately, with the children’s daycare/school activities.

[ 59 ] Two of the workers from the daycare centre testified at the trial. They both described Luke and Ruby as loveable children who were very happy when being picked up by either of their parents. They described Luke as cuddly, and Ruby as adorable. They both described both of the parties as good parents who were interested in their children’s needs and wants. They both said that the children loved both of their parents. The daycare workers had no concerns about the parenting ability of either the husband or the wife.

[ 60 ] Luke did struggle a bit when he started kindergarten but the parties arranged for a tutor who attended with him on occasion at the daycare. In the spring of 2012 the wife arranged for Luke to attend Oxford Learning Centre. That additional attention seemed to help Luke immensely. He is now doing exceptionally well at school.

[ 61 ] Both parties have been involved in arranging for and attending extracurricular activities for the children. The wife has done the bulk of the work regarding extracurricular activities and has set up such activities as soccer, golf, karate, gymnastics and cheerleading, most of which were done in consultation with the husband. The husband has been primarily involved in arranging for the children’s skating lessons.

4. PARENTING AND CUSTODY ANAYLSIS

[ 62 ] The husband and wife are both generally positive about the other’s ability as a parent. The husband describes the wife as a good mother who is very capable of caring for her children and who loves her children. The wife says that the husband “can be a good father”, and that he does some things for the children very well. She says that he is capable of caring for the children, and that he loves the children.

[ 63 ] I have no concerns regarding the parenting abilities of the husband or the wife. I find that they both love their children, are capable parents, and are very interested in their children’s welfare.

[ 64 ] Further, I find that the children are both doing well in spite of the behaviour of their parents toward one another. Also, with rare exceptions, the husband and the wife have kept the children out of their personal disputes. Their fractious behaviour is mostly confined to their email conversations.

[ 65 ] Clearly, the husband and the wife dislike each other, and have inflammatory argumentative conversations. Both see their relationship as a battleground and each seeks the upper hand. That being said, it is apparent from the email strings that the parties can communicate with each other about their children’s issues, such as daycare needs, schooling, and medical issues.

[ 66 ] All custody and access issues regarding children are to be determined on the basis of the best interests of the children. That maxim applies whether the court order is made under the Divorce Act, R.S.C. 1985, c.3, or the Children’s Law Reform Act, R.S.O. 1990 c. C-12. The court has a wide discretion as to how to structure a parenting regime that would be in the children’s best interests, and there are many variations that are possible.

[ 67 ] In the case of Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 194 O.A.C. 106, the Ontario Court of Appeal set out some guidelines as to when a court should order joint custody. Those guidelines were summarized in the Ontario Court of Justice decision in Habel v. Hagedorn, 2005 ONCJ 242, [2005] O.J. No. 3556, and adopted by this court in Patterson v. Patterson, 2006 53701 (ON SC), [2006] O.J. No. 5454.

[ 68 ] In summary, a joint custody order may be appropriate in three types of cases:

i. Where the parties agree to a joint custody order;

ii. Where there is a positive history of cooperation between the parties; and

iii. Where it is appropriate to preserve one parent’s relationship with the child.

[ 69 ] In the present case, clearly the parties do not agree to a joint custody order. However, I am concerned that if I were to grant sole custody to the husband or the wife, then one party would see themselves as the victor and the other would see themselves as the loser in the battle between them. Given that both the husband and the wife strive for control and one-upmanship, in my view a sole custody order in favour of either of the parties is unworkable.

[ 70 ] Consideration (iii) set out above clearly applies in this case. Both of the parties have a tendency to undermine the relationship of the other with the children, although both would deny it. Both want power, and both would abuse any power that would come with a sole custody order.

[ 71 ] Furthermore, regarding consideration (ii) above, I find that the parties, despite their fractious behaviour, have been able to resolve most of the significant issues on behalf of the children. For example, they have been able to make decisions together to enroll the children in a French school; to enroll the children at an early age in daycare; to adjust daycare pick-ups or drop-offs when either of the parties have other commitments; to arrange to change access days for special events such as the skating tournament, Father’s Day or Christmas; to communicate with each other regarding medical issues; to be jointly yet separately involved in school issues; and to arrange for extracurricular activities for the children.

[ 72 ] Further, the parties do communicate, mostly by email. The communication is often unpleasant, but it is usually informative. The inflammatory, insulting style of the communication is not laudable, but in an odd way seems to get the job done.

[ 73 ] For these reasons, I am of a view that there should be a joint custody order in this case.

[ 74 ] As for the residence of the children, primary residence should remain with the wife. Given the nature of the relationship between the husband and the wife, it is important for the children to have a stable home base. Moreover, the children have been in the wife’s de facto care in the wife’s residence for more than two years, and the children are doing very well. I will not upset that stability.

[ 75 ] Regarding parenting time for the husband, every weekend is not appropriate in the long run. There should be at least one weekend per month when the children are with the wife for the entire weekend. But, the husband’s access time should be extended on his weekends to ensure that the children have extensive quality time with their father.

[ 76 ] Therefore, weekend access will be divided into four-week cycles. On the first and third weekends, the husband will have access to the children from Friday after school/daycare to Sunday at 7:30 p.m. On the second weekend, the husband will have access to the children from Friday after school/daycare to Saturday at 7:30 p.m. On the fourth weekend, the children will remain in the care of the wife.

[ 77 ] In addition, the husband will continue to have access on Wednesdays after school/daycare to 7:30 p.m.

[ 78 ] Furthermore, if there is a Monday statutory holiday on a weekend on which the husband has access to the children on the Sunday, then the husband’s weekend access will be extended to Monday at 7:30 p.m.

MONETARY ISSUES

[ 79 ] The husband claims that the wife took approximately $800 out of a joint account; that the wife did not pay her half of the mortgage for a period of time; and that the husband was saddled with the loan from the Brick. In my view if there is any claim for any of these amounts those claims should be dealt with in the context of a full trial that deals with all of the property issues. One cannot pick and choose specific property issues without exchanging net family property statements and precisely calculating the proper equalization payment. Therefore, I will not allow any of these monetary claims.

[ 80 ] In written submissions, counsel for both the husband and the wife requested an order with respect to periodic child support, although both counsel during the trial specifically acknowledged that the child support issue was not the subject of this trial. Because this trial did not comprehensively deal with this issue, I decline to make any final order regarding child support. The temporary order of October 20, 2010 will remain in effect.

[ 81 ] Counsel for the wife also requests that I order the husband to pay one month of child support for June 2010. This request is in effect a claim for retroactive child support, and therefore it should be dealt with when all of the child support issues are finalized. Accordingly, I will make no such order today.

[ 82 ] Similarly, I will not make any further order with respect to the daycare expense, as the temporary order deals with that matter. However, because the temporary order does not deal with other s.7 expenses, I will order on a temporary basis that all s.7 expenses, including the Oxford Learning Centre, will be paid equally by the parties.

DIVORCE

[ 83 ] I find that the parties separated on May 18, 2010 and have not reconciled. There is no chance of reconciliation. Therefore a divorce judgment will be granted to take effect 31 days after the date of this judgment.

SUMMARY AND CONCLUSION

[ 84 ] For all of the aforementioned reasons, it is hereby ordered and adjudged as follows:

1. The parties who were married at Playa del Carmen, Mexico, on April 19, 2007, are hereby divorced, and the divorce will take effect 31 days after the date of this judgment.

2. The applicant and the respondent shall have joint custody of the two children, Luke Robert Douglas Waters born September 28, 2006, and Ruby Elizabeth Rae Waters born November 28, 2008.

3. The children shall have their primary residence with the respondent, Rebecca Waters, and the applicant, Raymond Waters, shall have access to the children as follows:

a. Every Wednesday from after school/daycare . to 7:30 p.m.;

b. Weekend access in a four-week cycle as follows:

i.

i) on the first and third weekends, the husband will have the children from Friday after school/daycare to Sunday at 7:30 p.m.;

ii) on the second weekend, the husband will have the children from Friday after school/daycare to Saturday at 7:30 p.m.;

iii) on the fourth weekend, the children will remain in the care of the wife.

4. If there is a Monday statutory holiday on a weekend on which the husband has access to the children on the Sunday, then the husband’s weekend access will be extended to Monday at 7:30 p.m.

5. The parties shall agree annually by October 15 as to how they will share the Christmas week, being the week from December 24 to January 1 inclusive. The parties will attempt to split this time equally between them.

6. Each of the parties will be entitled to 14 days of uninterrupted summer vacation time during the months of July and August. The parties shall notify each other of their requested summer vacation times no later than April 15 of each year, and the parties will attempt to resolve any conflicts in a reasonable manner.

7. The parties will make special arrangements for the birthdays of the parties, the children’s birthdays, Easter, March break, Thanksgiving, Halloween and any other special occasions that arise.

8. Notwithstanding the aforementioned order, the applicant shall have the children on Father’s Day from 9:00 a.m. until 2:00 p.m. if Father’s Day is not a regular access day, and the respondent shall have the children on Mother’s Day from 9:00 a.m. until 2:00 p.m . if Mother’s Day is not a day on which the applicant would normally have the children.

9. On a temporary basis all s.7 expenses, including the Oxford Learning Centre, will be paid equally by the parties.

[ 85 ] With respect to costs, either party may request costs of this proceeding by making written submissions directed to the trial coordinator within 14 days of the date of this decision.

Henderson J.

Released: September 25, 2012