Court File and Parties

COURT FILE NO.: FS-15-84046-00 DATE: 2016-11-16

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Diana Shishkin v. Mikhail Shishkin

BEFORE: Barnes, J.

COUNSEL: Michael Stangarone, for the Applicant Mikhail Shishkin, Self Represented

HEARD: April 05, 2016

AMENDED ENDORSEMENT

[1] The Applicant seeks various relief described in her Notice of Motion. Upon considering all the material filed and the submissions of the parties this court makes the factual findings and orders described below.

[2] The parties have been separated since December 2013. There are two children of the marriage namely Mikhail Shishkin born September 10, 2007, (“Mikhail”) and Vera Shishkin born August 3, 2011, (“Vera”).

[3] The Applicant has been the primary care giver of the children at the very minimum since the date of separation in December 2013.

[4] The children have resided with the Applicant since the date of separation. The parties’ child Vera has special needs. This has resulted in the Applicant staying home full time to care for Vera.

[5] The Respondent asserts that the Applicant should assume full time or part time employment in order to pay for special therapy associated with Vera’s condition. I am satisfied that the Applicant is very cognisant of Vera’s condition and at this time needs to stay home to care for Vera. The Applicant’s mother also assists her with the care of Vera.

[6] I am also satisfied that the Applicant has been taking/making efforts to find suitable employment in order to pay expenses related to Vera’s care. The costs are approximately $15,600 (six hours per week at $50 per hour).

[7] The Respondent’s bald assertion that the Applicant should go out and get employment without an explanation of how Vera will be cared for is not helpful or in Vera’s best interest.

[8] Vera has special needs and requires a form of therapy not covered by Private Insurance Plans. A plan of care which allows the Applicant to work and care for Vera properly should be explored due to the high cost of the therapy.

[9] The Applicant and the Respondent have a high conflict relationship. This has resulted in conflict between the Respondent and the Applicant’s family members. This atmosphere of conflict between the parties exposed the children to disparaging remarks about the parties. This history of conflict has escalated to the extent that the Applicant fears for her safety and wishes the court to impose a restraining order.

[10] The Respondent asserts that he currently has no employment. He said his income has been reduced due to an injury. He has produced copies of text messages between him and his employer to show instances when he did not report for work due to injury.

[11] The text messages alone are insufficient to support the Respondent’s claim that his hours of work have been reduced due to injury. The Respondent’s tax returns plus a medical opinion indicating that reduced work activity is required will at the minimum, be necessary to support a finding that reduction in the Respondent’s earning ability due to injury has occurred. Therefore, I do not accept that the Respondent’s income has decreased.

[12] Money to pay for the needs of the children appears to be in short supply due to a variety of reasons, some of which I have identified above.

[13] The children spend the majority of their time with the Applicant. The Respondent only sees them on Sundays from 12:00 p.m. to 5:00 p.m. it is in the best interests of the children for their father to maximize his earning power. Sleep deprivation will not contribute to this effort.

[14] The Respondent cannot see the children on Saturdays because of the need to use it as a day of rest.

[15] Under all the circumstances the request to maintain the weekly Sunday access schedule is not unreasonable.

[16] It is undisputed that the Respondent on occasion leaves the children unattended at Chuck E. Cheese’s during his access period. Despite security measures at Chuck E. Cheese’s it is not in the best interests of the children for them to be left unattended.

[17] The Respondent has a personal debt. Payments are now automatically withdrawn from the parties’ joint account. There is no good reason why the Respondent cannot arrange for the monthly loan payment to come out of his own bank account.

[18] I have articulated reasons why I do not accept the Respondent’s assertion that his income has decreased and, therefore, he cannot pay the costs order of Baltman J.

[19] The debt to the Government of Quebec is a joint debt of the parties and they should both contribute equally to its repayment.

[20] The Respondent’s T4 for 2015 indicates an income of $48,195. I find the Respondent’s income to be $48,195.

[21] Because of the hostile nature of the relationship between the parties the Applicant has enrolled the children in extracurricular activities without the consent of the Respondent, resulting in disagreements on whether extracurricular expenses are warranted.

Interim Custody and Primary Residence

[22] The sole determining factor on the custody issue is the best interests of the children. Divorce Act R.S.C. 1985 c. 3 s. 16, Kaplanis v. Kaplanis , [2005] O.J. No. 275 (Ont. C.A.) at para. 10-11.

[23] Degree of hostility makes joint custody unworkable. No evidence of any deleterious effects to the children from the status quo. Therefore, interim sole custody of the children is awarded to the Applicant. The children’s primary residence shall be with the Applicant.

Access

[24] The Respondent must continue to maximize opportunities to work. Costs with respect to children’s upkeep must be paid. Mother already spends significantly more time with children. There is no need to curtail Respondent’s access to the children.

[25] The Respondent shall have access to the children on Sundays from 12:00 p.m. to 5:00 p.m. Exchanges shall take place at the bus stop located at the corner of Winding Trail and Dixie Road.

[26] The Respondent shall be responsible for all pick-ups and drop offs of the children. Access is forfeited if the Respondent is 40 minutes late to pick up the children.

Safe Environment for Children

[27] It is in the best interest of the children for the significant hostility between the parties to be eliminated.

[28] The parties shall communicate by e-mail or text message regarding the children, such communication shall be limited to twice a day except in an emergency.

[29] The Respondent shall remain away from any place of residence, employment or recreation of the Applicant unless this court orders otherwise.

[30] Both parties are prohibited from speaking ill of or denigrating each other in the presence of any of the children.

[31] Neither party shall leave the children unattended when the children are in their custody.

Child Support

[32] For reasons articulated previously I do not accept the Respondent’s assertion that his income has been reduced since 2015. The Respondent’s income is set at the 2015 figure of $48,195. The Respondent shall pay interim Table amount child support of $723 (two children) commencing July 1, 2016.

[33] The Applicant’s 2015 income of $53,246.17 is no longer available because she quit work to care for Vera.

Special Therapy Costs

[34] Vera has been diagnosed with Developmental Delay / Autism Spectrum. She requires ABA Therapy and Speech Therapy.

[35] This therapy is not covered by private insurance. The cost of such therapy is $15,600 per annum. This constitutes an extraordinary expense under s. 7 of the Child Support Guidelines.

[36] On an interim basis, the parties shall contribute to the portion of the expense not covered by insurance on a 50 per cent each basis. In effect commencing July 1, 2016, the Respondent shall pay the Applicant $650, per month towards this expense.

[37] On or before July 1, 2016, the Applicant shall provide the Respondent with a report (or recommendation) from a qualified Speech Therapy Practitioner or other qualified professional outlining why ABA Speech Therapy is necessary for Vera’s positive development. This should include an explanation of why the Applicant’s unemployment or reduced employment is in Vera’s best interests.

[38] The Applicant shall promptly notify and provide the Respondent with details of any change in Vera’s treatment.

[39] The Applicant shall provide the Respondent with a copy of all receipts/bills relating to the ABA Speech Therapy on or before July 1, of each year commencing July 1, 2016.

Province of Quebec Debt

[40] The parties owe the Province of Quebec $5,427.74 in tax credits advanced for Vera’s care daycare in 2013, when the parties lived in Quebec.

[41] The parties are jointly liable (50 per cent) for this debt. The Respondent’s 50 per cent share of the debt is $2,713.87. The mother has already paid $1,432.03 to the Government of Quebec. The Respondent’s share of this payment is $716.02.

[42] Therefore, the Respondent shall pay $3,429.89 to Government of Quebec (“Revenue Quebec”) within 45 days.

Respondent’s Personal Loan

[43] The Respondent shall forthwith terminate the automatic withdrawals of his personal loan payments from the parties’ joint account and arrange that the monthly loan payments be withdrawn from his own bank account.

[44] The Respondent shall forthwith close the parties’ joint bank account.

Section 7 Expenses Generally

[45] The Applicant has enrolled the children in several extracurricular activities. She has not discussed this with the Respondent.

[46] Given the various expenses with respect to Vera and the retroactive cost order I am about to make, I conclude that a retroactive award of s. 7 expenses to the Applicant would cause the Respondent financial hardship. Therefore, the Applicant request for retroactive s. 7 expense contribution is denied. Despite her current lack of employment the Applicant is willing to contribute 50 per cent to s. 7 expenses.

[47] Going forward commencing June 1, 2016, the Respondent shall pay 50 per cent of any extracurricular activities the children are involved in. Unless the parties agree otherwise such payment is limited to one extracurricular activity per child per annum.

[48] Should the Applicant require contribution from the Respondent over and above the one extracurricular activity stipulation the consent of the Respondent is required.

Retroactive Orders

(i) The Respondent’s 2014 income is $41,484 Table child support in 2014 is $605 per month. (ii) The Respondent’s 2015 income is $48,525 Table child support in 2015 is $723 per month. (iii) Total child support payable by the Respondent in 2014 is ($605x 12 months) - $7,260. (iv) Total child support payable by the Respondent in 2015 to and including February 2016 is ($723 x 14 months) - $10,122. (v) The Respondent has paid a total of $15,231 during 2014, 2015 and up to February 2016. (vi) The Total child support payable for 2014, 2015 to February 2016 is $10,122 + $7,260 = $17,382. (vii) The Respondent is credited the $15,231 he has paid. The Respondent shall pay $17,382 - $15,231 = $2,151 in retroactive child support within 30 days by certified cheque payable to MacDonald and Partners LLP in Trust. (viii) The child support payable by the Respondent for the period March to June 2016 is $723 x 4 = $2,892. The Respondent shall be credited for any child support paid during that period and pay balance as retroactive child support by certified cheque payable to MacDonald and Partners LLP in Trust by July 30, 2016.

Justice Baltman’s Cost Order

[49] The Respondent shall pay the cost award imposed by Baltman J. in the amount of $1,500 plus post judgment interest by June 30, 2016.

[50] This court does not accept the Respondent’s evidence that his employment has reduced and, therefore, he cannot pay. See foregoing reasons. The Respondent has already breached Baltman J.’s order on the time to pay.

[51] Pursuant to my discretion under Family Law Rules 1(8) I shall fashion a remedy in the event the Respondent continues to refuse to pay the cost order: see also Clark v. Clark , 2014 ONCA 175.

[52] Should the Respondent fail to pay the costs ordered by Baltman J. by June 30, 2016, his pleadings shall be struck and the Applicant shall proceed to an uncontested trial by way of Form 23C.

Costs

[53] Should the parties be unable to agree on costs the parties shall submit a cost outline in 20 days.

[54] Approval as to form and content is dispensed with.

Barnes, J.

RELEASED: November 16, 2016