CITATION: Vidinovski v. Vidinovski, 2013 ONSC 3128
COURT FILE NO.: FC-11-039172-00
DATE: 20130529
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ilo Vidinovski Applicant
– and –
Marija Vidinovski Respondent
Unrepresented
Unrepresented
HEARD: May 28, 2013
REASONS FOR DECISION
MCGee H.A.
Background
[1] It is not contested that the parties separated on December 29, 2009. The parties physically separated on January 31, 2010 when the Respondent to this Application: Ms. Vidinovski, and the parties two children: Boris born May 5, 2001 and Mila born February 16, 2008 left the matrimonial home for that of her parents. Within a short period, the Applicant’s parents intervened. It was agreed that Ms. Vidinovski and the children would return to the former matrimonial home and the father would reside with his parents. He has remained in their home since that time.
[2] Young Boris and Mila have been blessed with two sets of helpful, and fair minded grandparents who have continued to assist both the parents. Mr. Vidinovski’s parents have been particularly accommodating. They financially provide for him. They supervise his alternate weekend day visits with the children as they are able.
[3] Mr. Vidinovski has not worked since the fall of 2009. The reason for his departure from the workforce is unclear and certainly unjustified from the mother’s perspective. She has continued to work fulltime – earning a promotion at her work – in order to financially provide for the children. He has provided no financial support since separation but for $200.
[4] Mr. Vidinovski has taken no active steps to return to the workplace, but for checking in with friends within his industry of diesel repair. He describes debilitating hip and knee injuries, while at the same time testifying in a rather disturbed manner that he does not qualify for any benefits, compensation or social assistance. He reports that he has been fully engaged in a series of court challenges against his former employer(s) and benefits providers.
[5] Within his letter to this Court, which was filed as his Trial Record Mr. Vidinovski invokes the Charter of Rights and Freedoms, describes the complete failure of the Canadian Legal System, wilful abuse by certain government agencies and a denial of his God given rights and benefits. He decries the erosion of the Rule of Law and the loss of moral values in Canada.
[6] Although Mr. Vidinovski is the applicant in this two and half year old proceeding, he struggled to address any of the family law issues. He has never filed a financial statement in accordance with Rule 13, or prior court orders. The financial statement supporting his Application attests only to his name and leaves blank all other sections.
[7] Mr. Vidinovski issued this claim on October 12, 2011. He states that after he issued the claim the mother no longer permitted him to attend at the home. The mother states that he most likely issued the claim because she stopped him from coming to the home in the fall of 2011. Over the course of 2010 and 2011, she describes how he become increasingly erratic and preoccupied. At times he was hateful towards her – a state amply demonstrated during the trial.
[8] Where the testimony of the father and the mother differed during the trial, I prefer the evidence of the mother. During the trial Mr. Vidinovski’s conduct revealed intense anger and concrete thinking. His excessive self-focus precluded any insight into the circumstances of his separation or the legal issues arising therefrom. When he was gently reminded that his view of the mother realistically precluded the prospect of joint custody he resolutely maintained his condemnation. He will be disappointed that the Court has neither addressed his perceived reasons for his separation, nor his view of the mother’s deficiencies.
[9] The Court heard no medical evidence of Mr. Vidinovski’s mental health. His written materials and conduct at trial demonstrate a disordered mental and emotional state. This family needs professional assistance, most significantly in terms of mental health and legal advice. Neither appears to have been broached, to each of their respective disadvantage.
Orders Sought Within the Pleadings, Decisions and Reasons:
Severance of Divorce
[10] On consent the claim for Divorce is severed from the corollary issues. The parties have been separated for over one year and there is no prospect of reconciliation.
Custody
[11] The mother has been the primary caretaker for the children since separation. Her brother and a friend testified as to the children’s well-being, normative routines, and extra-curricular activities. The children appear to be doing well in her care and they continue to enjoy the support of extended family and participation in the community.
[12] The father seeks joint custody.
[13] Joint custody primarily speaks to decision making for children. The Ontario Court of Appeal in Kaplanis v. Kaplanis 2005 CanLII 1625 (ON CA), [2005] O.J. No. 275 sets out a number of principles in determining whether a joint custody order is appropriate. Foremost amongst these is the requirement that the parties be able to engage in positive, cooperative communication, and that they be flexible in their decision making. The younger the child, the more important is the need for healthy parental communication.
[14] During the trial the father demonstrated no ability to separate out his anger towards his former spouse and the decisions affecting the children. He belittles her as an incident of truth. It is not contested that he has disparaged her in the presence of the children. I see no prospect of healthy communication between the parents. This is not a case for joint custody.
[15] Final Order granting the Respondent Mother custody of Boris born May 5, 2001 and Mila born February 16, 2008.
Access
[16] The father seeks more time with the children. The temporary order of February 1, 2012 provides for supervised access at the York Region Centre, and with family members as they are available. The former was to be arranged by February 20, 2012. The father has categorically refused to attend at a supervised access centre. As a result, there are no notes or records that might assist the Court is assessing whether supervised access continues to be appropriate.
[17] Access at the paternal grandparent’s home appears to be working well. The children spend a full day with their father on alternate weekends, with additional time as can be arranged depending on the grandparent’s other commitments. I see no reason to vary that routine.
[18] Neither parent presented a parenting plan for additional time, such as on holidays and during the summer. The Court would have preferred to work through such terms, but neither parent focussed on those issues. Neither has provided an updated Form 35.1 parenting affidavit.
[19] Final Order to go that the Applicant Father shall have supervised access with Boris and Mila for a full day on alternate weekends, on such days as his parents or other suitable supervisors are available to provide the supervision.
Incidents of Custody and Access
[20] The parents have no formal means to exchange information concerning the children. Neither presented plans for written or electronic communication.
[21] Mr. Vidinovski is particularly concerned with the mother’s failure to provide the children’s school report cards. Ms. Vidinovski testifies that she protects the children by not providing the cards. The father is preoccupied by the children’s school achievement – a fact confirmed by the father’s own statements that he tests the children every time that they are with him. His is a quasi - punitive approach to education, as if the father were measuring his own self-worth through his children’s marks.
[22] The presentation at trial was concerning enough that the Court is faced with two options. Not require the mother to provide all educational records – as is the usual task of a custodial parent; or require it with the proviso that the father not discuss the children’ marks with them in any manner that may be taken as punitive or denigrating.
[23] The optimal outcome would be a course of counselling for the father. But to so order would require a view that the father is amenable to counselling and able to develop insight into his actions. The alternative is to support the children with counselling so that they are better equipped to deal with any circumstances in which they find themselves. The mother is encouraged to enrol the children into a course of counselling and make such services available to them from time to time as needed.
[24] Except in exceptional circumstances, a custodial parent is obliged to consult and to keep an access parent informed on all matters touching on the children’s wellbeing. I make the following order:
a. The mother and father shall each establish an email account for the sole purpose of parental communication. As an alternative they may create a Communication Book, or subscribe to http://www.ourfamilywizard.com.
b. The mother shall advise the father of all significant events for the children in writing either within the communication book or electronically. She will post/provide copies of any school reports, health medical or dental treatment.
c. Communications shall be brief, timely, and respectful. Communications will only be on topics affecting the health, welfare and education of the children.
d. All communications shall be evidence, and producible in any subsequent proceedings.
e. The father shall support the children’s schoolwork, and shall not independently test them. The father shall encourage and support the children to meet their own academic expectations.
f. The father shall not denigrate the mother or speak ill of her in any manner while the children are in his care, or in a manner that might later come to their attention.
Child Support
[25] The father asks to defer child support until he is working. The mother has not fashioned a claim to impute income. She is justifiably proud that she is able to provide for the children.
[26] Child support is the right of the child and cannot be waived by a parent. As there is an insufficiently evidentiary basis for an award of child support at this time, no order is made.
a. Order to go that the father shall file a complete Financial Statement with Notices of Assessment for 2011, 2012 when received on or before July 1, 2013.
b. The period of claim for Child Support is preserved from February 1, 2010 forward.
Equalization
[27] Both parties claim an equalization payment. Neither has filed a proper Financial Statement which accurately sets out his or her assets and debts at the date of separation, and at the date of marriage. Neither appears to appreciate the operation of a claim for equalization or the necessary evidence.
[28] The issue of an equalization payment, exclusive possession and the restraining order is adjourned to the trial sittings following a settlement conference. The conference is to be scheduled through the Trial Coordinator in accordance with the local practise area direction. One week prior to the conference each party is to file an updated Financial Statement, Brief of supporting documents, Net Family Property Statement and Offer to Settle.
Sale of Property
[29] Neither parent seeks a sale of the jointly owned home at this time.
[30] The temporary order of February 1, 2012 granting the mother exclusive possession of the home shall continue until final determination of the balance of the claims.
Restraining Order
[31] The temporary order of February 1, 2012 granting the mother a restraining order shall continue until final determination of the balance of the claims.
Drafting of Order
[32] Ms. Vidinovski or her counsel is responsible for the drafting of this Order.
Justice H.A. McGee
Released: May 29, 2013