COURT FILE NO.: FS-12-0298
DATE: 2013-02-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Laurette Eileen Jarva
Applicant
- and -
William Michael Kunka
Respondent
Samantha Filipovic, for the Applicant
Martha Petryshyn, for the Respondent
HEARD: January 11, 2013,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision on Motions
[1] Each of the parties bring a motion, the central feature of which is the issue of custody of the two children of the marriage, namely Mara Makaila Jarva Kunka, born September 19, 2007 (age 5), and Ronan Graeme Jarva Kunka, born December 13, 2011 (age 1). Mr. Kunka seeks joint custody of the children or in the alternative, sole custody. Ms. Jarva seeks sole custody. The time that the children should spend with each parent is a component of that custody issue. Child and spousal support are also issues.
[2] The parties have each filed lengthy affidavits (187 paragraphs from Mr. Kunka, 156 paragraphs from Ms. Jarva). Each alleges that he or she was a primary caregiver. Each accuses the other, among other things, of abusive behaviour, poor parenting skills, financial mismanagement and unequal sharing of housework and yard work. The mutual allegations against one another extend to detailed complaints about overloading the dishwasher. Not unexpectedly, each alleges that the other’s affidavits are untrue and misleading. Each entirely denies the allegations made by the other.
[3] It is not possible, although the parties urge the court to do so, to make credibility findings on the basis of highly conflicting affidavits, dealing with multitudes of emotionally charged complaints and opposing perspectives on dozens of incidents. Such findings of credibility, if they must be made, will have to await a trial, with viva voce testimony, cross-examinations and confirmatory third party evidence. Even then, I caution the parties that there is little to be gained in trying to determine who overloaded the dishwasher or whether Mara’s favourite colours are both purple and pink, or whether her favourite colour is only purple, with pink as an afterthought.
[4] What has to be done on this motion is to determine, on the basis of the most objective evidence what is in the best interests of the children on a short term basis pending trial.
[5] Ms. Jarva is 36, Mr. Kunka is 34. They began living together in 2000, were married February 10, 2006 and separated on either August 22, 2012, according to Ms. Jarva, or on September 9, 2012, according to Mr. Kunka. For the purposes of this motion, nothing turns on deciding between those two dates. What is agreed by the parties is that on September 9, 2012, Ms. Jarva left the matrimonial home, taking the two children with her.
[6] Since September 9, 2012, the children have resided with Ms. Jarva, although not with the consent of Mr. Kunka.
[7] Mr. Kunka has had access, but not to the extent that he wishes.
[8] Both parties are registered nurses. Mr. Kunka works on a full-time basis at Pinewood Court. His Financial Statement sworn October 11, 2012, shows annual income of $89,668.32. Mr. Kunka works a four week schedule, with eight hour shifts from either 7:00 am to 3:00 pm, or from 3:00 pm to 11:00 pm. A copy of his schedule is annexed to these Reasons as Schedule “A”. He purposes that the children be with each of the parties during alternating weeks, or, in the alternative, that the children reside with him based on his employment schedule. The days on which he requests that the children reside with him under this latter proposal are shown in Schedule ”A”, marked with a circle. On those proposed days where Mr. Kunka’s schedule starts at 7:00 am, he proposes picking up the children after he finishes work at 3:00 pm. On those proposed days where his schedule starts at 3:00 pm and ends at 11:00 pm, he proposes having a third party look after the children while he is working.
[9] Mr. Kunka took two weeks paternity leave after Ronan was born. Mr. Kunka submits that a joint custody order, with joint decision making, can work in the best interest of the children. He submits that if the parties are unable to communicate orally, they can do so by e-mail. He submits that he is willing to talk to Ms. Jarva, but that she is not willing to do so which, he argues, is therefore reason to grant him sole custody.
[10] Ms. Jarva took approximately a year’s maternity leave after Ronan was born. She recently returned to work, on a part time basis, with Thunder Bay Regional Health Science Centre, at an hourly rate of $41.70. She had worked full-time when Mara was younger, but in 2010 went to part-time work so she could be more available for the child. She deposes that while the parties were together they had agreed that her employment would be co-ordinated around Mr. Kunka’s employment so that she would be available for Ronan. Mr. Kunka deposes that it was their joint intention that Ms. Jarva would return to full-time employment as soon as possible to help pay down the family debt. He denies that there was an agreement that Ms. Jarva would continue to work on a part-time basis. He states that there are multiple opportunities for Ms. Jarva to obtain full-time employment both inside and outside Thunder Bay Regional Health Sciences Centre. Ms. Jarva deposes that she is unable to obtain full-time employment in her field at this time.
[11] Ms. Jarva submits that joint custody will not work because of the parties are unable to communicate.
[12] She states that she does not have a set employment schedule but rather is offered part-time shifts which she can take or request or trade. She submits that in establishing a schedule for the children, the court should work around Mr. Kunka’s schedule and assume that she too will work around it.
[13] Ms. Jarva opposes Mr. Kunka’s proposal that the children be in the care of third parties when he is at work, for example, from 3:00 pm to 11:00 pm, when she would be available, as the children’s mother, to care for them. She proposes the following schedule, having regarding to Mr. Kunka’s hours of work set out in Schedule “A”:
Week One
Mr. Kunka pick the children up Thursday after his work ends at 3:00 pm and return the children on Thursday or Friday at 7:00 pm
Week Two
Mr. Kunka pick the children up Thursday morning at 10:30 am, after Ronan is fed, and return the children Thursday or Friday around 7:00 pm
Week Three
Mr. Kunka pick the children up on Friday at 5:00 pm (after Mara is finished school) and return the children on Sunday at 7:00 pm.
Week Four
Mr. Kunka pick the children up on Friday at 5:00 pm and return the children on Sunday at 7:00 pm.
[14] Ms. Jarva submits that this schedule, unlike the schedule proposed by Mr. Kunka, will allow each of them to have the children two weekends out of four.
[15] Mara attends Senior Kindergarten at Five Mile School Mondays, Wednesdays and Fridays from 8:30 am to 2:30 pm. Mr. Kunka proposes, on the days when his shift finishes at 3:00 pm and Mara is in his care, that she be in the after-school care of the Thunder Bay Boys and Girls Club until he is able to pick her up from their facility. Ms. Jarva submits that the Thunder Bay Boys and Girls Club is not at Five Mile School and that Mara, at only five years of age, is too young to be in the care of the Club.
[16] Having carefully reviewed the parties’ proposal and Mr. Kunka’s work schedule, I am of the view that of the proposals put forward by the parties, Ms. Jarva’s is in the children’s best interests. Mr. Kunka’s proposals, whether on a week about basis or in accordance with Schedule “A”, would mean that the children would spend considerable time in the care of third parties. The children are young, especially Ronan who turned one year of age on December 13, 2012. I regard it as preferable that the children be in the care of one of their two parents rather than in the care of third parties, if that can practicably occur. Under Ms. Jarva’s proposal, she would work around Mr. Kunka’s schedule which would minimize the necessity to bring in other care givers. I am not convinced that having Mara go to the Boys and Girls Club after school, when she is only 5 years of age, is in her best interest. I also note, as set out below, that the parties are awash in a sea of debt. This family will be better served by not incurring daycare costs.
[17] I appreciate that Mr. Kunka has set out in detail his involvement with the care of the children prior to separation. I do not make any finding on this motion minimizing what his involvement has been. However, the facts are that Ms. Jarva has been on maternity leave for the past year following Ronan’s birth. She is now working on a half-time basis. Mr. Kunka is working on a full-time basis. The children, especially Ronan, are young. Maximizing parental care, rather than third party care, militates in favour of having the children’s residence, on an interim basis, with their mother. This is not to say that following a trial, with a full evidentiary record, the children’s best interests might be seen in a different light. However, on a temporary basis, with highly conflicting material as to this family’s history, Ms. Jarva’s proposal, with some adjustments, appears to be the better choice for the children.
[18] I am not satisfied that the parties will be able to communicate such that joint custody is feasible. Their respective affidavits offer little hope in that regard. However, given that they are both registered nurses, I will assume that they can communicate and agree on issues concerning the children’s health.
[19] A temporary order shall therefore issue that Ms. Jarva shall have custody of the children, with the exception of health care decisions on which the parties shall consult one another and decide jointly after such consultation. In the event that the parties are unable to agree on health care decisions, they may return to court for directions.
[20] Mr. Kunka shall have the following access to the children, based on his work schedule, attached hereto as Schedule “A”:
Week One
Thursday at 4:00 pm to Friday at 7:00 pm
Week Two
Sunday at 4:00 pm until Monday at 2:00 pm and Tuesday and Wednesday from 8:00 am to 2:00 pm and Thursday at 10:00 am to Friday at 7:00 pm.
Week Three
Friday at 8:00 am to Sunday at 7:00 pm
Week Four
Friday at 4:00 pm to Sunday at 7:00 pm
[21] In addition to the above, Ms. Jarva shall give Mr. Kunka the right of first refusal to care for the children if she requires childcare because of her employment.
[22] Mr. Kunka deposes that in March 2013, he will be in a position to place his request with his employer for five weeks of holidays and 12 statutory holidays. Without knowing these dates, it is not possible to make an order at this time regarding further access that Mr. Kunka should have during these holidays. However, in my view, he should have access in addition to the access that I have ordered, taking into account the fact that during these holidays he will be in a position to care for the children without involving third parties.
[23] There is no reason why child support should not be paid by Mr. Kunka in accordance with the Child Support Guidelines. Mr. Kunka’s counsel has provided DivorceMate calculations which show that at an income of $88,300.00, Mr. Kunka would pay Child Support Guidelines Table amount of $1,273.00. As previously noted, Mr. Kunka’s Financial Statement shows income of $89,668.32, Under Schedule III of the Child Support Guidelines his income is to be adjusted by deducing his union dues of $96.03 per month, or $1,152.36. This would result in adjusted income of $88,515.96, which is close to his counsel’s suggested figure of $88,300.00.
[24] Ms. Jarva’s counsel provides DivorceMate calculations, based on unadjusted income for Mr. Kunka of $89,668.00, of $1,289.00 for child support.
[25] Mr. Kunka shall pay interim child support of $1,273.00 per month, commencing February 1, 2013.
[26] The commencement date for child support shall be February 1, 2013, without prejudice to the position of either party with respect to both child support and spousal support that may be payable for September 2012 through January 2013 and without prejudice to any credit to which Mr. Kunka may be entitled for expenses that he has paid during that period for the benefit of the children and Ms. Jarva. That issue is best dealt with at trial.
[27] With respect to spousal support, Ms. Jarva’s evidence is that her present half-time position with Thunder Bay Regional Health Sciences Centre started on November 30, 2012. At an hourly rate of $41.70, assuming 20 hours per week (which is one half the 40 hours per week that Mr. Kunka works) her annual income would be $43,368.00.
[28] Mr. Kunka submits that I should impute a higher income to Ms. Jarva, on the grounds that she should be working full-time. I do not have sufficient evidence before me, however, to impute income to Ms. Jarva of more than $43,368.00. At respective incomes of $88,300.00 and $43,369.00, with Mr. Kunka paying child support, the Spousal Support Advisory Guidelines suggest a range of $0.00 at the low end, $76.00 at the mid-range and $494.00 at the high end of the range.
[29] Mr. Kunka’s Financial Statement shows the following debts on the date of separation:
Joint Matrimonial and Homeline Plan and Credit Line
$274,724.28
Joint Royal Bank Visa
$21,339.69
Joint Royal Bank Line of Credit
$73,000.00
Joint Royal Bank Homeline Credit
$4,268.00
President’s Choice Credit Line
$15,032.00
[30] This amounts to over $388,000.00 in debt. Mr. Kunka estimates the value of the matrimonial home, in which he continues to reside, at $275,000.00.
[31] Ms. Jarva estimates its value at $205,000.00
[32] Mr. Kunka wants to purchase Ms. Jarva’s interest in the matrimonial home, which would entail assumption of the debt secured by the house. Ms. Jarva wants the house sold, but is prepared to transfer her interest if Mr. Kunka assumes the debt.
[33] There are no grounds to award Mr. Kunka exclusive possession of the matrimonial home pending trial. However, there may be an advantage to the parties if Mr. Kunka does take over the home and assumes the secured debt because it appears that if the house were sold the equity in the home may not be sufficient to cover the secured debt, especially after the costs of sale are paid. Mr. Kunka advises that his father is willing to co-sign on the debt and that the bank may therefore agree to release Ms. Jarva from the secured debt.
[34] In view of Ms. Jarva’s willingness to transfer her interest in the home to Mr. Kunka, an order shall go that Mr. Kunka shall have 60 days to purchase Ms. Jarva’s one-half interest in the matrimonial home, located at 940 Toms Road, Thunder Bay, in consideration of which he shall obtain from the creditors a release of Ms. Jarva from all responsibility for the debt secured against the home. He shall assume sole responsibility for all other expenses related to the home. During that 60 day period, Mr. Kunka shall have exclusive possession of the matrimonial home and be solely responsible for the expenses related to the home. If Mr. Kunka does not purchase Ms. Jarva’s interest in the matrimonial home within 60 days, the matrimonial home shall be listed for sale and sold for the first reasonable offer to purchase.
[35] In view of the debt load that Mr. Kunka will incur if he purchases Ms. Jarva’s interest in the matrimonial home, and the benefit to Ms. Jarva if he does. I am of the view that the no spousal support (being the low end of the Spousal Support Advisory Guidelines) should be payable at this time. If Mr. Kunka does not purchase Ms. Jarva’s interest in the matrimonial home within 60 days, spousal support may be reviewed.
[36] Ms. Jarva has requested a non-harassment order. There is insufficient evidence to warrant such an order.
[37] The parties have made other claims for relief in their respective motions. Fortunately, they have been able to resolve those claims. An interim order shall issue accordingly on consent:
• Both parties shall obtain and maintain in full force and effect any extended health insurance available through their employment, covering the children and the other spouse.
• Both parties shall name the children as the beneficiaries of their life insurance plans, naming the other spouse as trustee.
• Both parties shall name the children as beneficiaries of their pensions.
• Each party shall be entitled to make enquiries and be given information directly regarding the children’s health, education and welfare.
• Neither party shall change the children’s residence more than 30 kilometers from the City of Thunder Bay.
• Ms. Jarva shall keep the children’s passports (if any) to be made available to Mr. Kunka if he wishes to travel out of the country.
• Mr. Kunka shall have exclusive possession of the chattels remaining in the matrimonial home.
[38] There has been some divided success on this matter. Ms. Jarva has been successful on the custody/access issue. Mr. Kunka has had success on the issue of spousal support and a non-harassment order. There has been agreement on other issues. In my view, much time was spent on the motion materials and in submissions on allegations that did not enter into my decision. If the parties wish to argue costs, they shall make arrangements within 10 days with the Trial Co-ordinator to set a date to speak to the issue.
The Hon. Mr. Justice D. C. Shaw
Released: February 4, 2013
COURT FILE NO.: FS-12-0298-00
DATE: 2013-02-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Laurette Eileen Jarva
Applicant
- and –
William Michael Kunka
Respondent
DECISION ON MOTIONS
Shaw J.
Released: February 4, 2013
/mrm
Erratum
Superior Court of Justice, District of Thunder Bay File No: FS-12-0298
FS-12-0298 Jarva v Kunka
Date:
Erratum: Decision on Motions Released on February 4, 2013
December 5,
2013
On the first page of the released decision in Jarva v Kunka, FS-12-0298 there is an error in the citation. The year is incorrectly noted as 2012 instead of 2013.
The original released citation reads as follows:
COURT FILE NO.: FS-12-0298
DATE: 2013-02-04
COURT FILE NO.: FS-12-0298
DATE: 2013-02-04
“Original Signed by”
Mr. Justice D.C. Shaw