ONTARIO

SUPERIOR COURT OF JUSTICE – FAMILY COURT

CITATION: Loncar v. Pendlebury, 2015 ONSC 3026

COURT FILE NO.: 345/13 (St. Catharines)

DATE: 2015/05/12

BETWEEN:

Zoran Loncar

The Applicant appeared without counsel

Applicant

• and -

Alicia Pendlebury

Marlene J. VanderSpek, for the Respondent

Respondent

HEARD: April 28 and 29, 2015

R. A. Lococo, J.

REASONS FOR JUDGMENT

I. Introduction

[1] Zoran Loncar and Alicia Pendlebury separated in March 2013 after cohabiting for 18 months. At the time of separation, Mr. Loncar was 29 years old and Ms. Pendlebury was 32. They have one child, Alessandria (born November 12, 2012), who was four months old when they separated. After the separation, Ms. Pendlebury and Alessandria stayed in the rented apartment where the parties had been living.

[2] During the time the parties lived together, Mr. Loncar studied electrical engineering in a co-op program at Niagara College, alternating between periods of full-time courses and work placements. He also had other part-time jobs, including as a taxi driver in 2013. He completed the electrical engineering program in December 2014. He is currently in the process of setting up his own consulting business while searching for full-time employment in the electrical engineering field.

[3] When the parties began living together, Ms. Pendlebury was working part-time as a waitress. She had previously been employed for a number of years in office administration, but had been laid off. She was enrolled in an office administration program at Niagara College in 2009-2010 to upgrade her skills, but testified that she was subsequently unable to find employment in that field. Shortly before Alessandria’s birth in November 2012, she took maternity leave from her job as a server, and had not returned to work at the time the parties separated a few months later. Her principal source of income since the separation has been from public assistance under the Ontario Works program, offset by income as a part-time server. She has not received any child support from Mr. Loncar. She has just completed the first year of a police foundation program at Niagara College, and aspires to a policing career with the RCMP.

[4] On the date of their separation, the parties had an argument that culminated in a physical altercation. According to Ms. Pendlebury, Mr. Loncar threw her to the ground and slapped her in the face while sitting on her. Mr. Loncar claimed that it was Ms. Pendlebury who attacked him as he was trying to leave their apartment, and that he pushed back in self-defence.

[5] After Mr. Loncar left the apartment, Ms. Pendlebury called the police. Mr. Loncar was charged with domestic assault. He was released from custody on terms that prevented him from contacting Ms. Pendlebury. In May 2013, Mr. Loncar entered into a peace bond and the assault charge was dropped, with Ms. Pendlebury’s concurrence.

[6] In May 2013, shortly after entering into the peace bond, Mr. Loncar brought the application now before the court, seeking the following relief:

1. Joint custody of Alessandria, who would continue to reside principally with Ms. Pendlebury; and

2. Access to Alessandia, including overnight weekend access.

[7] In July 2013, Ms. Pendlebury filed an Answer in response to Mr. Loncar’s application. Among other things, Ms. Pendlebury sought the following relief:

1. A declaration that Mr. Loncar is the father of Alessandria;

2. Sole custody of Alessandria;

3. Permission to move to Edmonton, Alberta with Alessandria (raised in an amended Answer filed in September 2014);

4. Child support retroactive to the date of separation; and

5. Sharing of special and extraordinary expenses for Alessandria.

[8] A two day hearing of this application occurred in April 2015. Ms. Pendlebury was represented by counsel experienced in family law matters. Mr. Loncar was not represented by counsel.

[9] By the time of trial, the parties were in agreement or partial agreement with respect to some issues. There is no dispute about Alessandria’s parentage. Both parties agree that Alessandria should reside principally with Ms. Pendlebury. There is broad agreement on child support issues, although the extent to which income should be imputed to Mr. Loncar remains to be determined. Notwithstanding previous significant difficulties relating to access (discussed further below), Ms. Pendlebury expressed her support for access arrangements that are consistent with the loving relationship that Mr. Loncar has with Alessandria. However, given the lack of any constructive communications between the parties (as discussed further below), a workable access regime will be challenging to implement.

[10] The most significant differences between the parties relate to custody and mobility. Mr. Loncar is adamant that joint custody of Alessandria is in her best interests, in order to allow both parents have input into important decisions relating to her life. Ms. Pendlebury is equally adamant that she should have sole custody of Alessandria, given in particular the lack of co-operation and constructive communications between the parties. Ms. Pendlebury is also seeking leave to move to Edmonton with Alessandria, joining her father, who has arranged an office administration job with his employer for Ms. Pendlebury. Mr. Loncar opposes this move, arguing that it would unreasonably interfere with his access to Alessandria.

[11] In the balance of these Reasons, I will deal with the outstanding issues under the following headings:

1. Custody – Should Ms. Pendlebury have sole custody of Alessandria, or should the parties have joint custody?

2. Mobility – Should Ms. Pendlebury be permitted to move to Edmonton with Alessandria?

3. Access – How should access arrangements be structured?

4. Retroactive child support – How should Mr. Loncor’s income be calculated for purposes of retroactive child support?

5. On-going child support – How should Mr. Loncor’s income be calculated for purposes of on-going child support?

6. Other child support and miscellaneous issues – To what extent should the final order deal with special and extraordinary expenses, benefits coverage, life insurance and a passport application for Alessandria?

II. Custody

[12] Should the parties have joint custody of Alessandria, or should Ms. Pendlebury have sole custody?

[13] When determining whether joint custody or sole custody should be ordered, the key issue is decision-making relating to the child, rather than the location where the child will reside. There is no dispute between the parties that Alessandria should reside principally with Ms. Pendlebury. She has been Alessandria’s principal caregiver since birth. Alessandria has resided with her mother since the separation.

[14] In his testimony, Mr. Loncar raised issues relating to Alessandria’s quality of care, in particular relating to her diet and Ms. Pendlebury’s alleged housekeeping shortcomings. These issues were raised anonymously with Family and Child Services Niagara (FACS) in October 2014, initially by a former friend of Ms. Pendlebury. According to Ms. Pendlebury, her former friend stayed with her for a few weeks in 2014, but was asked to leave after a dispute. FACS contacted Ms. Pendlebury about an anonymous complaint almost immediately after that. Mr. Loncar subsequently contacted FACS and raised the same concerns as Ms. Pendlebury’s former friend. However, after investigating the complaint, FACS closed their file in November 2014. FACS has not had any further involvement with Ms. Pendlebury since that time.

[15] I accept Ms. Pendlebury’s testimony that there was no substance to the allegations against her relating to the quality of her care for Alessandria, consistent with the disposition of the FACS investigation. While Mr. Loncar continues to express concerns that I consider unfounded, he recognizes to his credit that it is in Alessandria’s best interests to continue to reside principally with her mother.

[16] While conceding that issue, Mr. Loncar seeks joint custody of Alessandria. In his submission, it is in Alessandria’s best interest that the parties have equal rights in making decisions about Alessandria’s care. He expressed concern that he would be excluded from important decisions relating to her life if Ms. Pendlebury is granted sole custody.

[17] Conversely, Ms. Pendlebury seeks sole custody of Alessandria, arguing that it is the only solution consistent with Alessandria’s best interests. In particular, Ms. Pendlebury argued that joint custody would be unworkable, given the lack of co-operation and constructive communication between the parties since their separation.

[18] Under subsection 24(1) of the Children’s Law Reform Act,[1] the merits of an application for custody or access shall be determined on the basis of the best interests of a child. When considering whether a joint custody order is appropriate, the applicable legal analysis was set out by the Ontario Court of Appeal in Ladisa v. Ladisa[2] and Kaplanis v. Kaplanis.[3] In the Kaplanis case, Justice Weiler addressed the issue of communication between the parties as follows:

The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making of an order of joint custody. There must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another. No matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise, and the changing developmental needs of a child must be addressed on an ongoing basis. When, as here, the child is so young that she can hardly communicate her developmental needs, communication is even more important.[4]

[19] The types of cases where joint custody may be appropriate were subsequently considered by Justice McSorley of the Ontario Court of Justice in Habel v. Hagedon[5] as follows:

According to the principles in Kaplanis v. Kaplanis and Ladisa v. Ladisa, joint custody may be appropriate in three main types of cases:

• An order for joint custody works best when the parents agree to it, although such agreement is not a prerequisite to ordering joint custody.

• Joint custody may also be appropriate where neither parent has disentitled himself or herself to custody and where there is a positive history of co-operative parenting and effective, appropriate communication between the parents with respect to their child or children.

• Finally, joint custody may also be ordered to preserve a parent's relationship with the child or children in cases where the parent who is the primary caregiver objects to joint custody without just cause, particularly where there is a risk that the objecting parent will try to marginalize and limit the other parent's involvement with the child.

[20] On the evidence before me, it is clear that neither of the first two situations identified in Habel v. Hagedon apply in this case. The parties do not agree to joint custody, nor is there a positive history of co-operative parenting or effective, appropriate communication between the parents. Access exchanges have been fraught with conflict. Police involvement was often requested by one party or the other, more often by Mr. Loncar in order to provide a record of what he considered to be an unjustified denial or limitation of access. Except perhaps for a brief period in June to July 2013 and apart from limited contact during access exchanges, communications relating to Alessandria have generally been by text, by communication books (for two limited periods) or through Ms. Pendlebury’s lawyer, in order to avoid disagreements and arguments that often occurred when the parties communicated face-to-face. In addition, Mr. Loncar made clear his negative views on Ms. Pendlebury’s parenting ability, which I considered to be unfounded on the evidence. For this and other reasons, they have been unable to communicate in a constructive way on any sustained basis with respect to Alessandria. In these circumstances, I have difficulty seeing how a joint custody arrangement could possibly work.

[21] In deciding whether joint custody should be ordered in this case, I took into account Mr. Loncar’s concern that he would otherwise be excluded from important decisions relating to her life. In this regard, I considered whether the situation in this case fell within the third category of cases identified in Habel v. Hagedon, that is, where joint custody is ordered to preserve a parent's relationship with the child, including where there is a risk that the primary caregiver will try to marginalize and limit the other parent's involvement with the child.

[22] Ms. Pendlebury addressed this issue in her testimony. She assured the court that she recognized the importance of custody and access arrangements that are consistent with fostering the loving relationship that Mr. Loncar has with his daughter, which she considered to be in Alessandria’s best interests. While I considered Mr. Pendlebury to be sincere in her testimony, I was less confident that her previous conduct was entirely consistent with that sentiment.

[23] For example, one of the conflict flashpoints for access visits related to who was entitled to pick up or drop off Alessandria. The temporary access orders specified which party was responsible for dropping off and picking up Alessandria for access visits. From the evidence, it appears that both parties were inconsistent at times as to whether they considered it acceptable for a designate for the party to pick up or drop off Alessandria instead of the party, leading to conflict and police involvement. While I accept that Mr. Loncar may have been principally at fault on those occasions, it would have been helpful had both parties given more consideration to the best interests of the screaming two year old caught in the middle, rather than trying to score points at the other’s expense. It is unfortunate when the level of maturity demonstrated by the parents suffers in comparison to that of their two year old child.

[24] As well, based on the evidence at trial, I was concerned about the extent to which Ms. Pendlebury thought it appropriate to attempt to exercise control over what happened during Mr. Loncar’s access visits with Alessandria. On one occasion, Ms. Pendlebury had agreed to extend the usual return time for an access visit to allow Mr. Loncar and his daughter to attend a picnic with other members of the Serbian community. While speaking to Mr. Loncar on the telephone after he had picked up Alessandria, Ms. Pendlebury became aware that Mr. Loncar’s sister was also in his company, which she had not expected. Ms. Pendlebury then insisted that Alessandria be returned at the usual drop off time rather than the extended time she had previously agreed to. From there, the situation degenerated into conflict, an entirely predictable result given previous experience. In my view, that conflict was avoidable had Ms. Pendlebury not reneged on her previous agreement.

[25] That being said, based on all the evidence, I am satisfied that Ms. Pendlebury will not try to marginalize and limit Mr. Loncar’s involvement with the child if Ms. Pendlebury is granted sole custody. I am satisfied that she recognizes that it is in Alessandria’s best interests to have a continuing relationship with her father, and will act accordingly in order to foster that relationship.

[26] Given in particular my concerns relating to the state of communication between the parties, I do not consider a joint custody arrangement to be feasible in this case. I am therefore awarding sole custody of Alessandria to Ms. Pendlebury. On the evidence, an order for sole custody to Ms. Pendlebury is consistent with her role as Alessandria’s principal caregiver since birth and de facto custodial parent since the parties’ separation. In contrast, Mr. Loncar has had only day access to Alessandria since the separation, as provided for in the interim access orders. As was the case in Kapalanis, there is insufficient evidence relating to Mr. Loncar’s fitness as a parent to support a custodial order in his favour.[6]

III. Mobility

[27] Should Ms. Pendlebury be permitted to move to Edmonton with Alessandria?

[28] Ms. Pendlebury is seeking leave to move with Alessandria to Edmonton, Alberta, where her father, David Pendlebury, currently lives. He is the manager of a metal fabrication facility in Edmonton. He has arranged an office administration job with his employer for Ms. Pendlebury. Ms. Pendlebury and Alessandria would reside with him in a three-bedroom house near Edmonton.

[29] As indicated previously, Ms. Pendlebury testified that she was employed for a number of years as an administrative assistant, but was laid off and was subsequently unable to find employment in that field. Since her separation from Mr. Loncar, her principal source of income has been from public assistance, offset by income as a part-time server. She has just completed the first year of a two-year police foundation program at Niagara College.

[30] If permitted to move to Edmonton, Ms. Pendlebury plans to work for her father’s employer in office administration for at least the next year, in order to stabilize her finances and establish a more current work record. The job would be full -time, with health and related benefits. At the same time, she would be applying for employment as a police officer with the RCMP in western Canada, a process she expects will take a year or more. She testified that the police foundation course she has been taking at Niagara College should be helpful in pursuing employment with the RCMP, but is not a prerequisite to applying. She sees employment as a police officer as providing a more secure financial future for her and her daughter.

[31] Mr. Loncar opposes Ms. Pendlebury’s move to Edmonton, arguing that it would unreasonably interfere with his access to Alessandria. He testified that given his current employment status and financial situation, his ability to travel to Alberta to see his daughter would be limited. He also questioned the extent to which Ms. Pendlebury had sought gainful employment locally, noting that there was no evidence of her attempts to do so apart from her testimony.

[32] The leading case on the issue of mobility is the Supreme Court of Canada decision in Gordon v. Goertz.[7] That case involved a motion to vary an existing final custody order to permit an overseas move by the custodial mother with the child. There is no existing custody order in the application before me, but similar considerations apply in cases of first instance in order to determine whether a proposed move is in the best interests of the child. In that regard, consistent with the decision of Justice Curtis of the Ontario Court of Justice in Ryall v. Ryall,[8] the following legal principles set out in Gordon v. Goertz apply in a case of first instance:

The law can be summarized as follows:

1. ….

2. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case.

3. The focus is on the best interests of the child, not the interests and rights of the parents.

4. More particularly the judge should consider, inter alia:

(a) the existing custody arrangement and relationship between the child and the custodial parent;

(b) the existing access arrangement and the relationship between the child and the access parent;

(c) the desirability of maximizing contact between the child and both parents;

(d) the views of the child;

(e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child;

(f) disruption to the child of a change in custody;

(g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.[9]

[33] In the application before me, Ms. Pendlebury has had de facto custody of Alessandria since the parties’ separation. In these circumstances, the following observations of McLachlin J. (as she then was) are relevant:

While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent's parenting ability.

[34] In this case, I am satisfied that it is in the best interests of Alessandria if Ms. Pendlebury is permitted to move to Alberta with Alessandria. In Ontario, Ms. Pendlebury has been on social assistance, working part-time as a waitress. She received no financial assistance from Mr. Loncar. I accept her testimony that she has had difficulty finding full time employment in the Niagara Region. In Alberta, she has assurance of a secure position in office administration, as well as housing for herself and Alessandria at the residence of Ms. Pendlebury’s father. I agree with her counsel that her financial well-being and security would be advanced if she is permitted to move to Alberta with Alessandria, consistent with Alessandria’s best interests. Given the child’s young age, the views of the child are not relevant, and the disruption to the child as a result of the move is minimal compared to what it would be at a later stage.

[35] While the move to Alberta will no doubt impair Mr. Loncar’s ability to exercise access to Alessandria, the desirability of maximizing contact with both parents is only one factor to be considered in determining whether the move should be allowed. In this regard, the following observation of Justice Curtis in Ryall v. Ryall is relevant:

Decisions in relocation cases are a delicate balancing act. The court must consider all the facts and factors involved. The court must weigh the benefits of the move to the mother and the child and compare those benefits to the losses that would result from the move. Careful attention must be paid to the potential negative effects on the child should the custodial parent be restricted from relocating.[10]

[36] In the application before me, balancing the desirability of maximum contact against the other relevant factors in this case, I find that the best interests of Alessandria are served by permitting Ms. Pendlebury to move to Alberta with Alessandria. Accordingly, an order will issue permitting Ms. Pendlebury to move to Edmonton, Alberta with Alessandria. That order will take effect in 30 days.

IV. Access

[37] How should access arrangements be structured?

[38] Under the temporary order currently in effect, Mr. Loncar has access to Alessandria every Saturday from 9:00 AM to 4:30 PM and every Thursday from 3:30 PM to 6:30 PM. Mr. Loncar is responsible for picking up Alessandria at Ms. Pendlebury’s residence at the beginning of an access visit. Ms. Pendlebury is responsible for retrieving Alessandria the end of an access visit. Mr. Loncar is required to exercise his access at his residence (he lives with his parents). His mother is to be present for the access visits. Mr. Loncar is required to ensure that Alessandria is not left unsupervised with his sister, Branca Loncar. The temporary access order includes a police enforcement clause.

[39] In his application, Mr. Loncar seeks to expand his access to Alessandria, including overnight weekend access, without the restrictions currently in the temporary access order. However, given that I am granting leave to allow Ms. Pendlebury to move to Alberta with Alessandria, a schedule of weekly or weekend access is no longer practical.

[40] In the event that she were permitted to move to Alberta with Alessandria, Ms. Pendlebury sought an order granting Mr. Loncar liberal and generous access to Alessandria when he is physically present in Alberta or when the child was physically present in Ontario. Each party would ensure that the other had advance notice of the intention to visit the other province in order that the schedules of Alessandria and the parties could be adjusted to permit Mr. Loncar to spend time with Alessandia. In her testimony, Ms. Pendlebury also noted her expectation that Mr. Loncar would also be in frequent contact with Alesaandria by telephone or other electronic means of communication.

[41] Given that I am permitting Ms. Pendlebury to move to Alberta with Alessandria, the access regime proposed by Ms. Pendlebury is the only viable solution before the court. I am therefore making an order for access on those terms. The challenge for the parties will be to make that order work given the history of conflict between them. To the extent required in the event of disagreement, the parties may wish to consider mediation rather than further court proceedings.

[42] Pending Ms. Pendlebury’s move to Alberta with Alessandria, Mr. Loncar shall be entitled to access to Alessandria on the terms provided for in the temporary order of Justice Quinn dated October 21, 2014, with the following changes:

1. Mr. Loncar shall have access to Alessandria each Sunday from 9:00 AM to 4:30 PM, in addition to the other times provided for in the temporary order.

2. The restrictions incorporated from subparagraphs 2(iv), (v) and (vi) of Justice Scott’s temporary order dated October 9, 2013 are removed.

[43] I would caution that the continuation of the terms of the current temporary access order as modified should not be considered any kind of template for future access arrangements. The first change to the temporary order terms is intended to provide Mr. Loncar with additional access time before the move to Alberta. Should the time I have provided not work for one or both parties, the parties are free to arrange access at different or additional times.

[44] In this regard, I considered Mr. Loncar’s request for overnight access, but decided that it did not make sense to deal with that issue. Mr. Loncar has not had overnight access to date, and that part of the order will be in effect for only a short time. As well, there was no evidence before the court relating to such matters as sleeping arrangements, which would be helpful when considering a request for overnight access. In that regard, I did not need to take into account Ms. Pendlebury’s testimony that Alessandria has periodic “night terrors” that would make overnight access inadvisable. However, in my view, further evidence would have been required to restrict overnight access on that basis.

[45] With respect to the second change to the temporary order terms, I am removing the restrictions as to where access may be exercised as well as the terms relating to Mr. Loncar’s mother and sister. These terms were originally imposed on consent at the case conference on a without prejudice basis. They are inconsistent with Ms. Pendlebury’s request that Mr. Loncar have liberal and access to Alessandria on an ongoing basis, and there is no evidence before the court to justify the continuation of these restrictions, even on a short-term basis.

V. Retroactive child support

[46] How should Mr. Loncar’s income be calculated for purposes of retroactive child support?

[47] Ms. Pendlebury is seeking retroactive child support commencing April 1, 2013. She conceded that no child support would be payable during 2014, since Mr. Loncar was a student at that time and his income did not meet the threshold for a child support obligation. However, for 2013, she seeks child support based on his declared income $13,193 plus an imputed income of $5,000. The latter amount was intended to take into account undeclared income earned by Mr. Loncar as a part-time taxi driver.

[48] Mr. Loncar conceded that he earned income from driving a taxi in 2013 that he did not declare for income tax purposes. He testified that he was not aware of the precise amount he earned since his employer did not provide him with the required information. He estimated that he made $2,000 to $3,000 in 2013, taking into account his expenses. He is prepared to pay retroactive child support for 2013 based on those figures in addition to his declared income.

[49] Based on the evidence before me, I find that Mr. Loncar’s 2013 income for child support purposes was $16,193, consisting of declared income of $13,193 plus estimated income of $3,000 as a taxi driver. On that basis, the total amount of child support owed for 2013 is $1,080, based on monthly payments of $120 for a period of nine months. Ms. Pendlebury requests that this amount be ordered as a lump sum. However, Mr. Loncar earned little income as a college student during 2014, and is in the process of setting up his own consulting business while looking for full time employment. In these circumstances, I am ordering that the arrears of child support be payable in instalments of $120 per month commencing June 1, 2015.

VI. On-going child support

[50] How should Mr. Loncar’s income be calculated for purposes of on-going child support?

[51] Ms. Pendlebury is seeking on going child support from Mr. Loncar in the amount of $450 per month commencing January 1, 2015, based on an imputed 2015 income of $50,000. Given that Mr. Loncar finished a college course in electrical engineering in December 2014, he has not track record of earnings in this field. Once fully employed, he expects to make approximately $50,000. As previously indicated, he is looking for full-time employment, and has also started his own consulting business. He testified that he has a couple of clients, and expects to be paid for his work in the next few weeks. He also stated that a realistic calculation of his annual income in his first year would be in the $30,000 to $40,000 range.

[52] Mr. Loncar acknowledged his obligation to pay child support for Alessandria. He is prepared to do so based on his actual and expected earnings. He is optimistic about his prospects going forward, but has yet to establish a financial track record.

[53] Based on the evidence before me, I am ordering that Mr. Loncar pay child support to Ms. Pendlebury in the amount of $303 per month commencing June 1, 2015, based on an estimated annual income of to be $35,000. His child support payments will be increased to $450 per month commencing June 1, 2016, based on an estimated annual income of $50,000. Under section 24.1 of the Child Support Guidelines (Ontario),[11] Mr. Loncar will also be required to provide annual disclosure of his income to Ms. Pendlebury, including his personal income tax return and notice of assessment. This information may form the basis for requesting a revision of his support payments in the future, if appropriate.

VII. Other child support and miscellaneous issues

[54] To what extent should the final order deal with special and extraordinary expenses, benefits coverage, life insurance and a passport application for Alessandria?

[55] Ms. Pendlbury requests that Mr. Loncar be required to share the special and extraordinary expenses that Ms. Pendlebury incurs for the benefit of Alessandria. No such expenses are being incurred at the present time, but would be expected in the future.

[56] Pursuant to subsection 7(2) of the Child Support Guidelines, the guiding principle relating to special and extraordinary expenses is that they are shared by the parents in proportion to their respective incomes after deducting the contribution, if any, from the child. For simplicity, Ms. Pendebury proposes that these expenses be shared by the parties equally. Although the incomes of the parties going forward are not known with certainty at this time, both are optimistic as to their prospects. An equal sharing of such expenses appears appropriate in this case, at least until information is available as to their actual incomes and the expenses incurred. The order will therefore require Mr. Loncar to contribute an equal share of special and extraordinary expenses that Ms. Pendlbury incurs for the benefit of Alexandria.

[57] Ms. Pendlebury also requests that maintain health, dental and related benefits that are that are available to him for the benefit of Alessandria as long as she is eligible for support. Mr. Loncar had no objection. I am prepared to make that order to the extent that such coverage is available to him through the benefit program at his place of employment.

[58] Ms. Pendlebury also requests that Mr. Loncar be required to obtain a life insurance policy in the amount of $82,000 to secure his child support obligation, irrevocably designating Ms. Pendlebury as the beneficiary in trust for Alessandria. That figure is based on a child support obligation of $450 per month, being the Guideline amount for an annual income of $50,000. Given the uncertainty relating to Mr. Loncar’s financial prospects at least in the short term, I am not prepared to make that order at this time. However, should Mr. Loncar become entitled to apply for life insurance in the future through his place of employment, it would be appropriate to secure his child support obligation at that time. I am therefore ordering that Mr. Loncar irrevocably designate Ms. Pendlebury as beneficiary of an insurance policy on his life in trust for the child with a minimum face value of $82,000 as long as such life insurance policy is available through the benefit program at his place of employment and the child is eligible for support.

[59] Ms. Pendlebury also requests an order that Mr. Loncar co-operate with Ms. Pendlebury’s efforts to obtain a passport for Alessandria, and dispensing with his consent should he fail to provide his consent within 30 days of a request being by Ms. Pendlebury. Mr. Loncar did not object to such an order. I am prepared to make that order, authorizing Ms. Pendlebury to apply for a passport for Alessandria.

VIII. Conclusion

[60] Based on the foregoing, a final order will issue in the following terms:

1. Zoran Loncar is found to be the father of the child Alessandria Loncar, born November 12, 2012, pursuant to section 4 of the Children’s Law Reform Act.

2. Alicia Pendlebury shall have sole custody of the child. The child’s primary residence shall be with Alicia Pendlebury.

3. Alicia Pendlebury has leave to move with the child to Edmonton, Alberta, effective 30 days from the date hereof.

4. Zoran Loncar shall have liberal and generous access to the child: (i) when Zoran Loncar is physically present in Alberta; (ii) when the child is physically present in Ontario; and (iii) by telephone and/or other electronic means of communication. Zoran Loncar shall ensure that Alicia Pendlebury has advance notice of his intention to visit Alberta in order that she can make appropriate adjustments to the child’s schedule to facilitate Zoran Loncar’s access to the child. Alicia Pendlebury shall ensure that Zoran Loncar is advised of any intended visits to Ontario in order to permit him to make appropriate adjustments to his schedule to facilitate his access to the child.

5. Until Alicia Pendlebury's move to Alberta with the child, Zoran Loncar shall be have access to the child on the terms provided for in the Temporary Order of Justice Quinn dated October 21, 2014, with the following changes:

   1. Zoran Loncar shall have access to the child each Sunday from 9:00 AM to 4:30 PM, in addition to the other times provided for in that Temporary Order.

   2. The restrictions incorporated into that Temporary Order from subparagraphs 2(iv), (v) and (vi) of the Temporary Order of Justice Scott dated October 9, 2013 are removed.

6. Zoran Loncar shall pay retroactive child support to Alicia Pendlebury in the amount of $1,080, payable in monthly instalments of $120 on the first day of each month commencing June 1, 2015.

7. Commencing June 1, 2015 and payable on the first day of each month, Zoran Loncar shall pay to Alicia Pendlebury support for the child in the monthly amount of $303 based on an estimated annual income of $35,000.

8. Commencing June 1, 2016 and payable on the first day of each month, Zoran Loncar shall pay to Alicia Pendlebury support for the child in the monthly amount of $450 based on an estimated annual income of $50,000.

9. Zoran Loncar shall contribute 50 per cent of the special and extraordinary expenses referred to in section 7 of the Child Support Guidelines (Ontario) that are incurred by Alicia Pendlebury for the benefit of the child.

10. Zoran Loncar shall maintain extended medical and dental coverage for the child as long as coverage is available through the benefit program at his employment and the child is eligible for support.

11. Zoran Loncar shall irrevocably designate Alicia Pendlebury as beneficiary of an insurance policy on his life in trust for the child with a minimum face value of $82,000 as long as such life insurance policy is available through the benefit program at his place of employment and the child is eligible for support.

12. Alicia Pendlebury is authorized to apply for a passport for the child. Zoran Loncar shall co-operate with Alicia Pendlebury’s efforts to obtain a passport for the child. If Zoran Loncar fails to provide his consent for the passport application within 30 days of a request being by Alicia Pendlebury, his consent for the passport application is dispensed with.

13. Costs, if demanded and not settled by the parties, will be determined based on written submissions.

[61] Since Mr. Loncar is not represented by counsel, his approval of the form and content of the final order is dispensed with.

[62] Ms. Pendlebury may serve and file brief written submissions (not to exceed three pages) together with a bill of costs and any pertinent offers within 21 days. Mr. Loncar will have 14 days after receipt of the Ms. Pendlebury’s submissions to respond by brief written submissions. Ms. Pendlebury may reply by brief written submissions within seven days. All such submissions are to be forwarded to me at my chambers at 59 Church Street, 4th Floor, St. Catharines L2R 7N8. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs.

The Honourable Mr. Justice R.A. Lococo

Released: May 12, 2015

CITATION: Loncar v. Pendlebury, 2015 ONSC 3026

COURT FILE NO.: 345/13 (St. Catharines)

DATE: 2015/05/12

SUPERIOR COURT OF JUSTICE - ONTARIO

FAMILY COURT

BETWEEN:

Zoran Loncar

Applicant

• and -

Alicia Pendlebury

Respondent

REASONS FOR JUDGMENT

R. A. Lococo, J.

Released: May 12, 2015

[1] R.S.O. 1990, c. C-12.

[2] 2005 1627 (ON CA), [2005] O.J. No. 276 (C.A.).

[3] 2005 1625 (ON CA), [2005] O.J. No. 275, 249 D.L.R. (4th) 620 (C.A.).

[4] Ibid. at para. 11.

[5] 2005 ONCJ 242, [2005] O.J. No, 3556 (C.J.) at paras. 4 and 7.

[6] Kaplanis, supra note 3 at para. 10.

[7] 1996 191 (SCC), [1996] 2 S.C.R. 27.

[8] 2009 ONCJ 687, [2009] O.J. no. 5894 at para. 76.

[9] Gordon v. Goertz, supra note 7 at para. 49.

[10] Ryall v. Ryall, supra note 8 at para. 97.

[11] O. Reg. 391/97.