CITATION: Kalliokoski v. Kalliokoski, 2016 ONSC 2273
COURT FILE NO.: FS-14-54
DATE: 2016-06-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KERRI KALLIOKOSKI
Applicant
– and –
DALE KALLIOKOSKI
Respondent
Lisa DeLong, for the Applicant
Self represented
HEARD: March 23 and 24, 2016
The Honourable Justice C.D. Braid
REASONS FOR JUDGMENT
I. INTRODUCTION
[1] This trial was held in order to determine the issues of custody, access, child support and equalization of net family property. Although the original Application claimed spousal support, this was not pursued at trial.
II. BACKGROUND
[2] Based on the evidence led at trial, I make the factual findings set out in the following paragraphs.
[3] The Applicant, Kerri Kalliokoski (“the mother”), was born on September 10, 1976 (currently 39 years of age).
[4] The Respondent, Dale Kalliokoski (“the father”), was born on March 30, 1973 (currently 43 years of age).
[5] The parties began cohabitating in the fall of 2006 and were married on August 14, 2010.
[6] There are three children of the marriage (“the children”), namely:
i. Sophia Kalliokoski, born July 14, 2007 (currently 8 years of age);
ii. Xaviar Kalliokoski, born December 10, 2008 (currently 7 years of age); and,
iii. Aussie Kalliokoski, born September 6, 2010 (currently 5 years of age). Aussie has been diagnosed with mild cerebral palsy, and he has attended physiotherapy and an occupational therapist. Aussie currently sees a physiotherapist every 6 months.
[7] The mother has an older son from a previous marriage, Joshua Fielding, who is now approximately 16 years of age. Joshua lived with the mother until 2014, when he went to reside with his father.
[8] The parties separated October 31, 2012. The marriage lasted approximately 6 years (including cohabitation).
[9] During the first year after separation, the children resided primarily with the mother. The father had the children on alternate weekends, plus one or two days during the week. Whenever the mother worked, the father had the children in his care, which was quite a bit. The father estimates that the children were with him more than 40% of the time during this period.
[10] At the time of separation, the father remained in the matrimonial home. He made $23,924.13 in mortgage payments before the home was sold.
[11] After separation, the mother changed her work schedule to 40 hours on weekends so that her schedule was free during the week to care for the children.
[12] On June 18, 2014, the court made an interim order that the children would share equal time with each parent for the summer. This schedule did not end up being followed as the father went back to work after being injured. The order also provided that the father pay some interim child support.
[13] On June 19, 2015, the court ordered that the matrimonial home be listed for sale. The court also ordered the father to pay interim child support in the amount of $1,042 per month effective July 1, 2014; set out an access schedule; and directed that the father pay 70% of the section 7 expenses for the children. The order also directed that the “father is to be provided with the opportunity to have time with the children during the months of July and August in order to keep extraordinary expenses reduced.”
[14] Since separation, the father has had access on alternate weekends, plus every Tuesday and Thursday evening from 4 to 7:15pm.
[15] I make the following factual findings regarding the involvement of the Children’s Aid Society (“CAS”), the police and other outside agencies:
a) The father has raised concerns with the family doctor and initiated complaints and/or contact to the CAS on at least six separate occasions. Some of the concerns raised included inappropriate behaviour by the children and scratches to and/or neglect of the children by the mother, as well as other issues.
b) These complaints resulted in a number of investigations by CAS and the police, including visits at the house and counselling for all of the children.
c) Each child was interviewed approximately 28 times regarding allegations made by the father, including questioning by two CAS workers, psychologists, police officers and the representative for the Office of the Children’s Lawyer.
d) Despite these lengthy investigations, no evidence was led of any findings of abuse by the CAS or the police.
e) As recently as a few weeks before the trial, the father again contacted CAS. The worker contacted the mother and told her that the father had raised issues regarding the mother’s alcohol consumption, possible drinking and driving and alleged mental issues. The CAS worker separately interviewed the children and then closed the case.
[16] There has been ongoing conflict between the parties since separation and the parties do not communicate well. When the mother sent text messages to the father to communicate about the children, he told her to stop harassing him. The parties disagree about when the children should attend birthday parties, and involvement in extracurricular activities and religion, among other issues.
[17] The parties tried to use a communication book without success. The father says that there was nothing suitable pertaining to the children in it, and a lot of it was negative. The parties are unable to communicate, even in writing.
III. INVOLVEMENT AND RECOMMENDATIONS OF THE OCL CLINICIAN
[18] On May 28, 2014, the court made an order recommending the involvement of the Office of the Chidren’s Lawyer (“OCL”). Peter Martyn was engaged by the OCL as the assessing clinician to conduct an investigation. Mr. Martyn has been a clinical investigator for 8 years and has completed approximately 100 reports. He has a great deal of expertise in this area.
[19] Mr. Martyn obtained records from the police, the CAS and medical professionals. He met or spoke with members of the family, the CAS, the police, the family therapist and the family doctor. He met with each child to get their preferences and observed them with each parent.
[20] All three children expressed that they wanted to be with both parents. Mr. Martyn had positive comments with respect to the way in which both parents interacted with the children.
[21] Mr. Martyn found that the parties had ongoing conflict and did not communicate well. The parties had a communication book but had been unable to use it appropriately. The parties were at odds about various areas of their children’s lives in areas such as education and health. Mr. Martyn stated that joint custody would not be workable, as this inability to agree and communicate effectively would result in constant disagreement and perhaps continuing litigation.
[22] Mr. Martyn recommended that the mother be granted sole custody, with generous access to the father.
IV. CUSTODY AND ACCESS CLAIMS
A. Positions of the Parties
[23] The mother requests an order for sole custody of the children. The mother has adjusted her work schedule so that she only works on the weekends. She is home from Monday to Friday so that she can take care of the children when they are ill; attend doctor’s appointments; and take the children to activities. This has also permitted her to volunteer at their school and assist the children with homework each night.
[24] The mother proposes that the father have the children in his care on alternate weekends from Friday to Monday, and then other weekends from Friday at 4pm to Saturday evening. This would permit the father to see the children every weekend but would eliminate midweek visits. She believes that midweek visits are too disruptive for the children.
[25] The father requests an order for sole custody or joint custody of the children. He states that he was very much involved with the children when the parties were together. His position is that he has done nothing that would justify him losing decision-making rights in relation to the children.
[26] The father previously worked on rotating shifts as a machinist. In 2014, he was injured on the job and was off work for a few months. He now works straight days during the week as a quality technician. Although he is on call when not at work, he is rarely called in to work on the weekends.
B. General Principles regarding Custody and Access Claims
[27] The applicable legislation regarding custody, residence and access is the Children’s Law Reform Act, R.S.O. 1990, c. C-12 (“the Act”). Section 20 of the Act stipulates that, except as otherwise provided for in Part III, the father and mother of a child are equally entitled to custody of the child. Custody has been described as a “bundle of rights and obligations,” which includes the right to physical care and control of the child, to determine the child’s residence, to discipline the child, and to make decisions about the child’s education, religion, medical care and general health and activities: see Young v. Young (1993), 1993 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.); Chou v. Chou, 2005 11195 (ON SC), [2005] O.J. No. 1374 (Ont. S.C.).
[28] An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out these rights and responsibilities: see Kruger v. Kruger (1979), 1979 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. C.A.). The term “joint custody” is used to describe situations where both parents are given full decision-making authority and responsibility in all areas respecting the child.
[29] The entitlement to “access” is defined in section 20(5) of the Act as including “the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.”
[30] Section 24(1) directs that the merits of an application dealing with these issues must be determined on the basis of the best interests of the child. Section 24(2) sets out the factors to be considered in determining the best interests of the child:
24(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
[31] The list of factors set out in section 24(2) is not an exhaustive outline of the relevant considerations in carrying out the analysis of the best interests of the child. The best interests determination is based on a multiplicity of factors, and must be tailored to the unique facts and dynamics of each case. The court is not required to specifically enumerate and analyze the specific criteria set out in section 24(2) of the Act, but rather must consider all of the factors that are relevant to the analysis in the particular case that it is called upon to decide: see Walsh v. Walsh, 1998 7134 (ON CA), [1998] O.J. No. 2969, 39 R.F.L. (4th) 416 (C.A.). The overarching principle in carrying out the analysis is that the child’s best interests must be ascertained from the perspective of the child rather than the parents; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child: see Gordon v. Goertz (1996), 1996 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.); Young v. Young (1993), 1993 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.).
[32] There is no default position in favour of joint custody in Ontario as each case is fact-based and discretion-driven, see: Growen v. MacKenzie, 2008 ONCJ 170, [2008] O.J. No. 1439 (Ct. J.); Rapoport v. Rapoport, 2011 ONSC 4456, at para. 47.
[33] However, there must be a high level of co-operation and communication between the parents if joint custody is to be a viable option consistent with the best interests of the children: see Rapoport v. Rapoport, supra, at para. 48.
[34] In order to grant joint custody, there must be some evidence before the court that, despite their differences, the parties are able to communicate effectively with each other: see Kaplanis v. Kaplanis, 2005 1625 (ON CA), 2005 CarswellOnt 266 (C.A.); Lawson v. Lawson, 2006 CarswellOnt 4736 (C.A.). The rationale for this principle is that the best interests of the child will not be advanced if the parties are unable to make important decisions regarding the child under a joint custody regime.
[35] The court must carefully consider the parties’ past and current parenting relationship and reach its own conclusions respecting the parties’ ability to communicate, rather than simply relying on allegations of conflict by one or both of the parties: see Kaplanis; Ladisa v. Ladisa, 2005 1627 (ON CA), 2005 CarswellOnt 268 (C.A).
[36] The question to be determined is whether the nature, extent and frequency of the conflict between the parties are such that it is impacting or likely to impact on the well-being of the children. The question for the court to determine is “whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis”: see Warcop v. Warcop, 2009 6423 (ON SC), 2009 CarswellOnt 782 (S.C.).
[37] The Ontario Court of Appeal has clearly stated that one parent cannot create conflict and problems with the other parent by engaging in unreasonable conduct, impeding access, marginalizing the other parent, or by any other means and then claim sole custody on the basis of lack of cooperation and communication: see Lawson; Ursic v. Ursic, 2004 CarswellOnt 8728 (S.C.); aff’d 2006 18349 (ON CA), 2006 CarswellOnt 3335 (C.A.); Andrade v. Kennelly, 2006 CarswellOnt 3762 (S.C.); aff’d 2007 ONCA 898, 2007 CarswellOnt 8271 (C.A.).
[38] While both parents may be attentive and loving, a joint custody order may not coincide with the child’s best interests. As Pazaratz, J. stated in Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (S.C.), at para. 504, “[I]n the wrong family circumstances, a joint custody order can perpetuate hostilities, indecision, and power struggles. Children - particularly children already exposed to the upset of family breakdown - look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully.”
C. Analysis re Custody and Access
[39] Although the parties have different perceptions about what caused the conflict between them, they are both generally in agreement with respect to the nature of the conflict and the fact that they cannot communicate. Both sides present as good parents who simply cannot work together.
[40] In my view, the father has shown poor judgment with respect to his contact with CAS. The father takes the position that he was obligated to raise concerns with CAS regarding inappropriate behaviour by the children. Although he appears to have continuing concerns about the issues that he raised with CAS, there is no evidence to support any wrongdoing by the mother.
[41] The father’s description of his most recent contact with CAS was particularly revealing. He testified that, a few weeks before trial, he called CAS to ask for a recommendation to a counsellor. He denied wanting to involve CAS in yet another investigation. He failed to acknowledge the seriousness of calling CAS, especially in light of the past investigations. He could not explain why he did not call the family’s previous counselor, Ms. Bodonovich, instead of calling CAS. Curiously, he said that he “had no idea that CAS would investigate” after that phone call, and that his intention was not to initiate an investigation.
[42] In my view, the decision to call CAS in these circumstances was a decision meant to create further conflict between the parties. This triggered yet another investigation, which further involved the children. The father’s actions were not in the best interests of the children.
[43] I have assessed the totality of the evidence in this case, and have come to the conclusion that there is insufficient evidence of cooperation and communication that would justify a joint custodial arrangement as being in the best interests of the child.
[44] The following are some of the reasons that lead me to the conclusion that a joint custody regime should not be imposed:
i) The parties cannot communicate with each other, especially about matters involving the children;
ii) There is no evidence of the mother making any poor or questionable decisions regarding the children. On the other hand, the father has made poor choices regarding discussions with the children and involving the authorities. The numerous investigations and interviews by the authorities have not been in the best interests of the children;
iii) The mother has taken a job with a schedule that addresses the children’s needs during the week. She has made herself available to attend medical and dental appointments, to volunteer at the school, and make essential day-to-day decisions for the welfare of the children;
iv) There is no need to order joint custody to preserve the father’s relationship with the children. There is no history of the father being denied access. I am awarding fairly generous weekend access to the father, plus generous summer and holiday access;
v) The mother is obliged to seek input from the father before making decisions and a clause to this effect will be in the order; and,
vi) I have taken into consideration the recommendations of Peter Martyn, an experienced OCL clinician and investigator. I agree with his assessment that the conflict and communication issues between the parties would make a joint custody arrangement unworkable.
[45] I conclude that an order for sole custody of the children in favour of the mother is in the children’s best interests. In reaching this decision, I have given considerable weight to the evidence regarding the nature of the parties’ relationship over the past several years. I find that there has been significant conflict, and the parties’ ability to work together in a collaborative manner to meet the needs of the children has been minimal. The serious difficulties in the parties’ relationship are such that a joint custody arrangement would not be feasible and would impede effective decision-making concerning the children.
[46] My decision to grant sole custody to the mother is also based on the role which she has played in the children’s lives. I find that she has been the primary caregiver of the children since their birth. Since the separation, she has been the parent who has attended to the children’s day to day needs, arranged all necessary appointments for them and dealt with medical emergencies that have arisen respecting them.
[47] I find that the mother wants the children to have a strong and loving relationship with their father.
[48] I accept the father’s evidence that he truly loves his children, and that he has suffered tremendous pain as a result of the separation and the breakdown of the family unit. However, the decision respecting custody of the children does not turn on the amount of love which he has for them. While this is an important factor, the other considerations which I have discussed above satisfy me that a joint custody order is not in the children’s best interests, and tip the balance in favour of an order for sole custody to the mother.
V. CHILD SUPPORT AND EXTRAORDINARY EXPENSES
A. Position of the Parties
[49] The father agrees to pay the Table amount of child support under the Guidelines. The mother seeks payment of arrears for child support, plus contribution for past and future section 7 expenses.
B. General Principles
[50] I am guided in my determination of the issue of child support by sections 15.1(1), (3) and (4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and by the Child Support Guidelines.
[51] Once the court determines what income is to be applied, that child support should be the guideline amount. This should be calculated based on the fact that three children reside with the mother.
[52] The object of the child support provisions is to ensure, as reasonably as possible, that children are not disadvantaged by the separation of their parents, by providing fair and predictable standards of support, facilitating the calculation of support, and rendering the legal process for addressing child support issues more efficient: see Hiemstra v. Hiemstra, 2006 SCC 37, [2006] S.C.J. No. 37 (S.C.C.).
[53] Section 7 deals with special and extraordinary expenses as follows:
7.(1) In an order for the support of a child, the court may…provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
[54] Section 7(2) of the Guidelines provides that these expenses should be shared by the parents in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child.
C. Analysis
[55] The father made small voluntary payments of child support in 2012 and 2013. These were below the amount of child support that would have been payable under the guidelines.
[56] The application was commenced in February of 2014. The father testified that he had the children in his care for more than 40% of the time prior to the application being commenced, and no evidence was called to dispute this. For these reasons, I am not prepared to assess arrears of child support owing prior to 2014. Commencing in 2014, the children have resided primarily with the mother, and there is no dispute that the mother is entitled to child support.
[57] The mother was employed at Community Living Burlington and earned $17,294.55 in 2015.
[58] The following chart sets out the amount of child support payable pursuant to the guidelines; the amounts that were paid; and the arrears for each year:
| Year | Father’s income | Support amount per month | Annual total | Amount paid | Arrears |
|---|---|---|---|---|---|
| 2014 | $52,983 | $1,023 | $12,276 | $3,660 | $8,616 |
| 2015 | $63,186 | $1,257 | $15,084 | $12,504 | $2,580 |
[59] The father has stated that he does not understand “why back support is being levied on court ordered support payments.” To be clear, that is not what the court is ordering. Although the court ordered the father to commence paying support effective July 2014, it was an interim order only without the benefit of full financial disclosure. It is appropriate for the court to calculate the amount of child support that should have been paid and assess the arrears owing. In this case, I find that the child support arrears up to December 2015 total $11,196.
[60] The mother is requesting an order requiring the father to contribute to the following s.7 expenses: Brownies, Beavers, dance and daycare. The mother testified that she paid for before-school daycare for the children during the week when she was working, and that she paid for some daycare during the summer.
[61] Although the father raises issues about having to pay the mother’s cost of a babysitter, it is clear that these were reasonable expenses for which she has supplied receipts. I am satisfied that the daycare expenses which the mother incurred for before-school childcare were necessary in relation to the children’s best interests and that they were reasonable within the meaning of section 7. The amount of the daycare fees is extremely reasonable, and the mother required before-school daycare in order to work. Accordingly, I am satisfied that the mother is entitled to receive contribution from the father for these expenses.
[62] With respect to the childcare during the summer, I agree generally with the father’s statement that he could have been contacted to take the children into his care on some of those days. He testified that he was not contacted to ask whether he wanted to have the children in his care on those days and was not challenged on this evidence. It is unfortunate that the mother did not contact him. In the circumstances, I find that the mother has not established that the father should pay for daycare during the summer.
[63] With respect to the expenses which the mother has incurred, the guiding principle is that the net expenses should be shared in proportion to the parties’ respective incomes. In light of the incomes of the parties, the father’s portion of the s. 7 expenses is 70%. I therefore find that the father’s share of the s. 7 expenses is as follows:
| Expense | Cost | Father’s Portion (70%) |
|---|---|---|
| Dance | $640 | $448 |
| Beavers | $80 | $56 |
| Brownies | $80 | $56 |
| Before-School Daycare | $1,200 | $840 |
| Total | $1,440 |
[64] I am satisfied that the expenses set out in the above chart were necessary in relation to the children’s best interests and that they were reasonable within the meaning of s. 7. Accordingly, I am satisfied that the mother is entitled to receive contribution from the father for these expenses. He therefore owes $1,440 for his contribution toward past s.7 expenses.
D. Balancing of Child Support Arrears With Mortgage Payment Credit
[65] As a result, I find that the arrears of child support owing to the mother, including s. 7 expenses, total $12,636. The father states that he contributed approximately $23,924.13 toward the mortgage on the matrimonial home after separation, and seeks credit for that amount. The mother agrees that he should be given some credit for these mortgage payments. In my view, the father lived in the house without incurring additional rental cost during that time, and therefore is only entitled to partial credit for those payments.
[66] I find that the arrears of child support owing to the mother and the appropriate credit for the mortgage payments owing to the father are approximately the same. Therefore, there shall be no payment made to either party in respect of arrears of support or for credit for mortgage payments.
VI. EQUALIZATION
[67] In October of 2015, the matrimonial home was sold. The proceeds from the sale are being held in trust at a law firm. The mother requests an order that the funds be split evenly between the parties. The father submits that the mother should not be entitled to an equal portion of the proceeds because she did not invest in the matrimonial home.
[68] The proceeds from the sale of the matrimonial home should ordinarily be divided equally between spouses. I find that the parties are entitled to an equal portion of the proceeds from the sale of the matrimonial home. They resided in the home during their marriage. There is no basis to make an unequal division in this case.
[69] The father has worked at Canadian Babbitt Bearings for 15 years. It is not disputed that the mother is entitled to one half of the father’s pension that accumulated between August 14, 2010 and October 31, 2012.
[70] There are no other assets of any significance to be divided or assessed as part of the equalization of net family property.
[71] The parties had debt that they each assumed from the marriage. After hearing the evidence, I am satisfied that they each left the marriage with equal debts that set off the other’s debts, and therefore the calculation of debt does not enter into the calculation of the equalization.
VII. DIVORCE
[72] The father claimed a divorce in his pleadings. However, the trial record does not contain a Certificate of Marriage and no evidence was called at trial to support this claim. I direct that the claim for a divorce is hereby severed from the other corollary relief. The claim for a divorce may be brought by either party as a chambers motion.
VIII. TERMS OF ORDER TO ISSUE
[73] Based on the foregoing, a final order shall issue as follows:
The Applicant mother shall have custody of the three children, namely Xaviar James Kalliokoski, born December 20, 2008, Sophia Audrey Kallioski, born July 14, 2007 and Aussie River Kalliokoski, born September 6, 2010 (“the children”).
The Respondent father shall have regular access with the children every weekend, as follows:
i) on alternate weekends, from Friday at 4p.m. to Sunday at 7p.m. If Friday is a statutory holiday, the access will commence on Thursday at 4p.m. If Monday is a statutory holiday, the access will be extended to Monday at 7p.m. This full weekend access shall commence either June 24 or June 30, according to the Applicant mother’s usual work schedule when she is required to work the longer weekend shift.
ii) on alternate weekends, from Friday at 4p.m. to Saturday at 7p.m. If Friday is a statutory holiday, the access will commence on Thursday at 4p.m. If Monday is a statutory holiday, the access will be extended to Sunday at 7p.m. This part-weekend access shall commence either June 24 or June 30, according to the Applicant mother’s usual work schedule when she is required to work the shorter weekend shift.
The Respondent father shall have the children every Father’s Day from 10 a.m. to 5 p.m., if not already in his care.
The Applicant mother shall have the children every Mother’s Day from 10 a.m. to 5 p.m., if not already in her care.
The Respondent father shall have the children for one full week on March Break in odd-numbered years and the Applicant mother shall have them for one full week in even-numbered years.
With respect to the summer months:
i) Commencing in 2017, the Respondent father shall have two weeks in July and two weeks in August of each year with the children, providing notice of those weeks by May 30th of each year. These weeks are not to run consecutively.
ii) Commencing in 2017, the Applicant mother shall have two weeks in July and two weeks in August of each year with the children, providing notice of those weeks by June 15th of each year. These weeks are not to run consecutively.
iii) With respect to the summer of 2016, the parties shall make best efforts to arrange the father’s summer access weeks in accordance with his vacation time, to a maximum of four full weeks during the children’s summer holidays. The father shall provide the proposal for his summer weeks by June 30, 2016. The mother shall thereafter provide her proposal for her full summer weeks with the children no later than July 7, 2016. These summer weeks with the children are not to run consecutively.
The Respondent father shall have the children from December 24th at 4 p.m. to December 25th at 10 a.m. in odd-numbered years and from December 25th at 10 a.m. to December 27th at 10 a.m. in even-numbered years.
The Applicant mother shall have the children from December 24th at 4 p.m. to December 25th at 10 a.m. in even-numbered years and from December 25th at 10 a.m. to Boxing Day at 2 p.m. in odd-numbered years.
The Respondent father shall have the children from New Year’s Eve at 4 p.m. to New Year’s Day at 4 p.m. in even-numbered years and the Applicant mother shall have the children from New Year’s Eve at 4 p.m. until New Year’s Day at 4 p.m. in odd-numbered years unless she agrees the Respondent father can have them during her time in odd-numbered years.
Each parent shall be permitted to initiate one daily telephone call with each of the children on those days in which the children are in the care of the other parent. If, for any reason, the children are not available to receive the parent’s telephone call at that time, then the parent with who the children are residing shall be responsible for ensuring that the children return the telephone call as soon as practically possible. No restrictions shall be placed on the children’s initiation of telephone contact with either parent, except in reasonable circumstances.
Either parent shall be permitted to travel with the children, for the purpose of out-of-province vacations or visits with extended family, with the consent of the other parent. Such consent is not to be unreasonably withheld. Each parent shall also be obligated to provide a minimum of two weeks’ notice prior to travelling out of province with the children and shall be further obligated to provide the other parent with an itinerary which shall include a description of travel arrangements and an address and telephone number where the children and the parent may be reached.
The parents shall share with one another all information related to significant events in the children’s daily lives, through written email correspondence, in order to minimize exposure to parental tension or conflict. The parents shall also use reasonable discretion in minimizing the extent of such communication. Only information that is necessary to ensure that the children’s needs are met is to be provided.
The applicant mother shall inform the respondent father and shall consult and consider the input and opinion of the father, prior to making major decisions affecting the lives of the children, including those related to the children’s physical and psychological health; education; cultural and religious training; extracurricular activities (especially those that may affect the time spent with the respondent father); and any other major decisions affecting the children’s general welfare. Such communication shall take place through written email correspondence.
In case of an emergency, the parent who is caring for the children shall notify the other parent as soon as possible.
In all communication between the parties, whether in writing or in person:
i. The parties shall refrain from any subtle or open criticism of the other parent and members of their extended family;
ii. The parties shall refrain from the use of any critical, hostile or derogatory comments;
iii. The parties shall refrain from conflict or derogatory remarks, whether subtle or open, especially in the presence of the children;
iv. The parties shall not rely on the children to communicate information between them;
v. The parties shall refrain from discussion, with or in front of the children, of issues regarding ongoing conflict between the parties, custody, access, residency, property, financial issues, or other court action.
vi. Neither parent shall question the children about what is happening in the other parent’s home.
vii. The parties shall refrain from any interference, direct or indirect, into the lives, activities or routines of the other parent. They shall not schedule activities for the children that would require involvement during periods when the children are in the care of the other parent, without consultation and consent from the other parent.
viii. The parties shall make all possible practical efforts to ensure the children’s attendance at structured activities or special occasions involving their peers or extended family. In facilitating these attendances, “make-up time” shall be discouraged, except in special circumstances in order to ensure continuity of the children’s schedule of residence and routines.
The Respondent father shall have the same right and entitlement to information from third parties relating to the health, education and welfare of the child without the necessity of any release, direction or acknowledgement executed by the Applicant mother and this shall constitute sufficient release, authorization and direction to any third party for the release of such information.
The Applicant mother may apply for and obtain passports for the children of the marriage. The respondent Father shall provide the consent required to obtain such passports, on reasonable notice, and such consent shall not be unreasonably withheld. If a parent is in possession of the children’s passports, they shall immediately provide the other parent with the passports for purposes of international travel with one or more of the children.
The applicant mother shall maintain all of the children’s records and official documents, including their passports, social insurance numbers, birth certificates, etc.
The surname of the children shall remain “Kalliokoski” for all purposes, and neither party shall make application to the court under the Change of Name Act or any similar or successor legislation, to change the children’s surname without the written consent of the other parent.
Both parties shall enrol in a program to help them understand the impact adult conflict can have on children. The Caring Families Program offered by Nova Vita Domestic Violence Prevention Services is an example of such a program.
The Respondent father shall pay child support to the Applicant of $1,257.00 per month, based on his annual income of $64,760.00 and in accordance with the Federal Child Support Guidelines, commencing January 1, 2016.
The Respondent father shall be credited for the $1,042.00 he paid in January, February and for $520.00 he paid in March of 2016.
The Respondent father shall pay 70% of future extraordinary expenses for the children, within 30 days of receiving a receipt.
Each party shall continue to cover the children under any group medical, dental and drug plans available to either party at their present or future places of employment, with any non-reimbursed costs to be paid by the parties proportionate to their applicable income at the time of incurring such expense.
The Applicant mother and Respondent father shall evenly split the proceeds from the sale of the matrimonial home being held in trust at Waterous Holden Amey Hitchon LLP. I direct that the firm of Waterous Holden Amey Hitchon divide the proceeds, including any interest that has accumulated, and pay 50% of those funds to each of the parties.
I find that, as of the date of this judgment, the Respondent father is not required to pay any arrears of child support, including s. 7 expenses.
The Applicant mother shall receive one half of the Respondent’s pension through Canadian Babbitt Bearings that accumulated between August 14, 2010 and October 31, 2012.
Unless the support order is withdrawn from the office of the Director of the Family Responsibility Office or the written consent of both parties, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
For as long as child support is paid, the payor and recipient, if applicable must provide updated income disclosure to the other party each year, within 30 days of the anniversary of the Order, in accordance with section 24.1 of the Child Support Guidelines.
This Order bears post-judgment interest at the rate of 2% per annum, effective from the date of this order. Where there is default in payment, the payment in default shall bear interest only from the date of default.
IX. COSTS
[74] In the event that the parties cannot agree as to costs, they are directed to provide written submissions as to costs. The submissions shall be no longer than two typed pages, double-spaced, in addition to any relevant offers or Bill of Costs. The Applicant mother shall provide costs submissions by July 15, 2016 and the Respondent father shall provide any response by July 29, 2016.
Braid, J.
Released: June 17, 2016