CITATION: Kacpura v. Kacpura, 2016 ONSC 771

COURT FILE NO.: 37229/14

DATE: 20160202

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Tom Przemyslaw Kacpura

Applicant

– and –

Anzhalika Kacpura

Respondent

Rochelle Cantor, for the Applicant

Douglas Quirt, for the Respondent

HEARD: December 8, 9, 10 & 11, 2015

Gray J.

[1]

Overview

Of the many issues that were originally in dispute, only three remain, namely, custody; the access schedule; and child support. To their credit, the parties have resolved everything else, including property issues and spousal support.

2The applicant seeks an order for joint custody and increased access, while the respondent seeks sole custody and the continuation of the exiting temporary access schedule. Child support does not appear to be much of an issue unless section 9 of the Child Support Guidelines has application, and it is doubtful that it does.

Background

[3]

Background

The parties were married on June 2, 2002. The respondent was visiting Canada before the paries married. She was a student in Warsaw, Poland. After she finished her studies, the applicant sponsored her to come to Canada.

4It was not a happy marriage. There were many conflicts, but the parties stayed together for the sake of the children. There are now two children, both boys, aged six and four. Their names are Alexander and Daniel, respectively.

5Both boys have done reasonably well in school. It is not disputed that each party is a good parent, although the respondent has some issues with the applicant’s parenting abilities. She complains that he customarily provides the children with improper food. He generally takes them to McDonald’s after he picks them up for access visits. She complains that during visits with the applicant’s parents the children’s grandfather behaves too roughly with them.

6The applicant is employed by the Toronto Dominion Bank as an information technology expert. He generally works from home, and his hours are flexible. He earns approximately $125,000 per year.

7The respondent has had part-time employment until recently, but she is now employed full time by the Royal Bank of Canada in a customer services capacity, and she earns approximately $34,000 per year.

8In October, 2013, it became clear to both parties that the marriage was not working. They consulted Maureen Smith, a mediator, who met with the parties and brokered a form of separation agreement. Neither party had legal advice. It provided for spousal support of $1,030 per month and Guideline child support of $1,670 per month, based on the applicant’s then income of $120,000 per year.

9The agreement purported to give the respondent sole custody of the children, and provided, with respect to access for the applicant, for “very flexible arrangements with regards to access”. The agreement also stated “The husband and the wife have joint guardianship of the children above described and further agree as follows: both have joint guardianship.”

10The agreement purported to deal with the division of assets, and occupation of the matrimonial home. A schedule was set out for “child rearing during separation”.

11The applicant testified that Ms. Smith did not explain many of the provisions of the agreement, particularly those relating to custody and guardianship. There was no discussion about financial disclosure.

12The Applicant testified that the agreement was not signed on the day Ms. Smith met with the parties; rather, it was signed about two weeks later. He said he signed the agreement under some pressure from the respondent.

13The matrimonial home is located in Milton. After signing the agreement, the applicant testified that he began looking for another place to live. Ultimately, he settled on a condominium in Hamilton. He testified that the respondent was involved in his search for a new place to live, and she came to look at the condominium that the applicant was interested in. He put in an offer to purchase the condominium on November 23, 2013 and that is where he lives now.

14The applicant testified that the condominium has two bedrooms and is fully equipped. When staying over at the condominium, the boys sleep in their own room, which has two beds. When the boys are there, the applicant sleeps in the other bedroom on an air mattress.

15Until March, 2015, the applicant had no overnight access with the children. On March 19, 2015 and April 1, 2015, Miller J. made orders for overnight access. The appearances before Miller J. had been preceded by some other proceedings.

16The respondent applied, ex parte, for a restraining order against the applicant, which came before Coats J. on January 5, 2015. Coats J. granted a temporary restraining order until January 8, 2015, when the matter came before me. On that date, I made a temporary order for non-overnight access each Saturday and alternate Sundays, until further order of the Court.

17Following the holding of a case conference on February 10, 2015, the applicant brought a motion on March 19, 2015, before Miller J. The respondent did not appear. Miller J. ordered that the boys be in the applicant’s care each Tuesday and Thursday from 3:30 p.m. to 7:30 p.m., and every other Saturday from 10:00 a.m. until 7:00 p.m., and alternate weekends from Friday at 3:30 p.m. to Saturday at 7:00 p.m. She ordered that exchanges of the children occur at a Tim Horton’s parking lot at the south end of Milton. She specifically ordered that both children be at that location on time.

18The respondent brought a motion on an emergency basis on March 20, 2015, to set aside the order of Miller J. on the basis that she had not been served with the motion material until March 19, 2015 at 9:00 a.m., and was thus unable to attend. Gibson J. stayed the order of Miller J. until April 1, 2015, and ordered that the respondent’s material be served.

19On April 1, 2015, the matter came on again before Miller J., who noted that the respondent was opposed to any access “even for a few hours”.

20Miller J. confirmed the access schedule she had ordered on March 19, 2015. She ordered that for the Tuesday and Thursday access visits, the applicant was to pick the children up from their babysitter at 3:30 p.m. and return them to the Tim Horton’s parking lot. For the alternate Saturday access visits, she ordered that the exchanges of the children take place at the Tim Horton’s parking lot. For the alternate weekend visits, she ordered that the applicant pick up the children from the babysitter and return them to the Tim Horton’s parking lot. As she had in her order dated March 19, 2015, she specifically directed that the children attend for exchanges on time.

21Miller J. also ordered that while the children are in the care of one parent, they would be permitted to contact the other parent by telephone each day between 5:00 p.m. and 6:00 pm. She ordered that the parent in whose care the children are at that time facilitate the call.

22Miller J. ordered that the parties could communicate by email, but that any such communication must be related to issues regarding the children’s care, health care appointments, and arrangements for access. She ordered that neither party speak in a derogatory way of the other to or in the presence of the children.

23Some minor variations of Miller J.’s order were subsequently made, but none that materially affect the issues before me.

24The applicant acknowledged during his evidence that on occasion he was a few minutes late in picking up or delivering the children. He acknowledged that the respondent complained about this. He also acknowledged that his behaviour was less than ideal during the period between May and June 2014. He said he was frustrated and his emotions got in the way. He also acknowledged that he stopped paying spousal support for a period of time, and he claimed that there was a strain on his finances at the time.

25The applicant testified that during access visits he does the normal parenting tasks, such as feeding, changing, and putting the children to sleep.

26The applicant testified that it would be preferable for the children to have overnight access with him on Tuesdays and Thursdays. At the moment, because he has no overnight access it is not practical to take the children to his place in Hamilton after he picks up the children on Tuesday and Thursday. As a result, they simply spend time in Milton until he is to deliver them back to the respondent’s residence. He generally takes them to McDonald’s because they like the food, and because he is not in a position to cook them meals at home. If he had overnight access, he could take them to Hamilton and cook meals for them.

27Furthermore, if he were able to take the children to his home in Hamilton, he could do homework with them and engage in other activities with them. There would be less travelling to do.

28The applicant testified that the time for him to drive from the boys’ school to his home in Hamilton is approximately 30 to 35 minutes. He does not think that would be a significant issue for the children.

29The applicant acknowledged that communication with the respondent has been less than ideal. In particular, he said that in the period between May, 2014 and the end of the summer of that year he was frustrated and he probably said some things he should not have said. However, he said communication is now primarily through email and there is less likelihood that emotional issues will have the same importance.

30The applicant testified that he would like to travel with the children, but that has not been allowed to date. He notes that the respondent took the children to Cuba. He would like to take the children camping, and their great grandparents live in Poland.

31The applicant testified that because of his flexible hours with his employer, he is well able to take sufficient time to be able to exercise the expanded access that he seeks.

32The applicant testified that he is in regular contact with the children’s school and their teachers. He attends activities in which the children are involved at the school.

33On cross-examination, the applicant acknowledged that the respondent is a good mother. He acknowledged that she cares well for them, and she feeds and clothes them well.

34The applicant acknowledged that he had an adequate opportunity to consider the terms of the proposed separation agreement, as he signed it two weeks after it was discussed with him. He acknowledged that he did not seek legal advice before he signed it. With respect to the term “Guardianship” used in the agreement, he insisted that he understood that both parties had decision making with respect to the children.

35The applicant acknowledged that he had failed to pay spousal support for approximately five months. He said it was because he had financial difficulties.

36The applicant acknowledged an incident during which he swore at the respondent over the telephone in August or September 2014. He said it arose out of frustration and his emotional state at the time.

37The applicant testified that he does not recall telling the respondent that her grandparents would never see the children.

38The applicant acknowledged that there were some occasions on which he returned the children late. He agreed that there were some emails exchanged about that. He said he tried to be on time, and his lateness was not on purpose.

39The applicant denied that his conduct, including cutting off spousal support and being late, was intended to upset the respondent. He acknowledged sending the respondent one email during which he requested that she pay for his gas to drive from Hamilton to Milton.

40The respondent, in her evidence, testified that the parties discovered how different they were after they got married. They did not live together before marriage. The situation got worse after they got married.

41The respondent testified that the applicant blamed her for many things over which she had no control. For example, a rock had hit their car after being thrown up by a truck. The applicant blamed her for this. If their dog defecated in the backyard, and created spots on the lawn, she was blamed for it. If there was a mark on the wall, it was her fault.

42The respondent testified that the applicant rarely assisted with the care of the children.

43The respondent testified that after their first child was born, it was agreed that the respondent would stay home. After maternity leave, she started part-time employment. She is now employed full time by the Royal Bank of Canada.

44The respondent testified that it is important that the children maintain a routine. Normally, they have a bath at 7:00 p.m. She reads a book to them, and they are in bed by 8:00 p.m.

45The respondent testified that when the children are with the applicant, they are very often not home by 7:00 p.m. Regularly, they are home as late as 7:30 p.m. or 8:00 p.m. It is only in the two weeks before trial that the respondent has started bringing the children home on time.

46When the applicant is late, the respondent will sometimes send him text messages or emails. When the applicant responds, it is often to say simply that the children are having a good time or that something has happened to make him late.

47The respondent testified that the applicant ignores her most of the time. There is very little communication. The respondent testified that when she telephones the children during times that they are with the applicant, most of the time he does not pick up the telephone. Accordingly, telephone contact with the children is irregular at best. By contrast, when the applicant telephones the children when they are in her care, there is no hesitation about picking up the phone or letting the children speak to their father.

48The respondent testified that the applicant’s lateness ultimately became very difficult for her. At first, he was generally on time. Then he began being late, and it became more frequent. His lateness became a real problem when she began to be late for work. She said the applicant ignored her complaints. Finally, the respondent was forced to hire a babysitter.

49The respondent testified that when the applicant stopped paying spousal support in August 2014, he still saw the children. He said the respondent should pay him for babysitting the children. He then said she should pay him for the gas he uses to drive from Hamilton to Milton. She said the applicant’s behaviour became worse and worse over time.

50The respondent testified that when she told the applicant she might have to sell the house if he did not pay her the support he owed her, he said “you’ll figure it out.”

51The respondent testified that the applicant made threats. She testified that he told her he would destroy her. She said he called her parents in Belarus and told them they would never see the children. She identified an email in which the applicant said he would make sure his kids would not understand Russian as long as he lived.

52The respondent testified that the applicant came to her workplace and asked questions. It was very embarrassing for her.

53The respondent testified that on one occasion the school asked that a document be signed by both parents. The applicant refused to sign it.

54In May, 2015, the applicant asked if he could borrow the children’s bicycles for the weekend. The respondent agreed. The applicant took the bicycles to his parents’ place east of Toronto, and has never returned them, notwithstanding requests that he do so.

55On one occasion, the respondent was at the hairdresser’s, and it became necessary for her to pick the children up from the applicant’s residence. He refused to tell her his address, and it was necessary for her to look it up and then drive to Hamilton.

Submissions

[56]

Submissions

Ms. Cantor, counsel for the applicant, submits that there should be an order for joint custody, and the current access schedule should be amended so that the applicant has the children each Tuesday and Thursday overnight, and alternate weekends from Friday after school to Monday morning.

57Ms. Cantor submits that decision making, as far as important issues are concerned, has not really been an issues between the parties. There is no issue as to schooling or religion or medical care. Thus, she submits, an order for joint custody is appropriate notwithstanding conflicts between the parties. Conflict, standing alone, is not a sufficient reason to deny an order for joint custody, as long as the parties are able to communicate and make decisions about important matters involving the children.

58Ms. Cantor notes that the significant conflicts between the parties, for the most part, occurred at times before they had retained counsel. Since they have both retained counsel, things have greatly improved. Indeed, they have agreed on some significant orders that should ameliorate any conflict of a serious nature in the future.

59As far as the access schedule is concerned, the starting point is that each parent should have as much contact as is possible, having regard to the best interests of the children. That is clearly the case here.

60No one has suggested that either parent is unfit, notwithstanding the somewhat minor complaints of the respondent.

61Ms. Cantor submits that in making its assessment, the Court must consider the willingness of each party to facilitate contact with the other. Since the date of separation, the respondent has resisted contact between the children and the applicant. At some points, the respondent has insisted that there be no access, even for a few hours. It was only after the Court ordered overnight access that any occurred. She has steadfastly refused to consider any additional overnight access. This is not in the best interests of the children.

62Ms. .Cantor also points out that if the applicant has overnight access during the Tuesday and Thursday visits, he will able to take the children to his home in Hamilton, change and feed them, and have time to engage in activities with them. This is clearly in the best interests of the children.

63As far as the distance between the parties is concerned, it should not be a major issue. At most, it takes approximately 35 minutes to drive between the school and the applicant’s home in Hamilton.

64As far as summer access is concerned, Ms. Cantor submits that there is reason to believe that this may not be a major issue. She suggests that I remain seized of that issue and receive submissions if necessary.

65Mr. Quirt, counsel for the respondent, submits that the status quo should be maintained. In other words, the respondent should have sole custody, and the existing access order should not be disturbed.

66Mr. Quirt submits that the terms of the separation agreement between the parties should govern. It calls for sole custody on the part of the respondent. Pursuant to that order, there has not been any difficulty in arriving at appropriate determinations of important issues regarding the children. Having regard to the conduct of the applicant, it is uncertain as to what the situation would be if an order for joint custody were made. Since the best interests of the children are being looked after under the current situation, there is no reason to disturb it.

67As far as the current access schedule is concerned, Mr. Quirt submits that it is in the best interests of the children. Among other things, the applicant has interfered with telephone contact between the children and the respondent, and he has been habitually late in picking up and delivering the children. Any alteration of the current order will likely produce further inappropriate, and indeed irrational, behaviour on the part of the applicant.

68With respect to the applicant’s behaviour, Mr. Quirt mentions, among other things, the fact that the applicant stopped paying spousal support for no reason; he has screamed at the respondent in front of the children; he has deliberately breached court orders; he has asked her to pay for his gas to drive from Hamilton to Milton; he has fed the children inappropriate food; he has been emotionally abusive, including threating the respondent and denigrating the fact that her background is Russian; he had failed or refused to return articles of clothing for the children; he has refused to return the children’s bicycles, thus they have no bicycles at the respondent’s residence; he has attended the respondent’s place of work and caused her embarrassment; he has put her home in jeopardy and simply said “you’ll figure out a way”; he has refused to answer the telephone when the children are in his care; and he has no respect for the respondent.

69By contrast, the respondent is a good mother, she packs decent food and clothing for the children, she allows unlimited telephone calls between the applicant and the children, she has been flexible and reasonable, and she encourages a solid relationship between the children and their father.

70Of significant concern is the applicant’s refusal to pick up and deliver the children on time. This has been a continual complaint of the respondent since the separation, and the applicant seems unwilling to change the situation, except, coincidentally, in the two weeks before the trial commenced. The applicant cannot seem to understand that this behaviour is harmful to the children, in that it is very disruptive to their routine, and it is also very disruptive to the respondent herself, who relies on the schedule to govern her own affairs, including her employment.

71In the final analysis, Mr. Quirt submits that the status quo should not be disturbed.

Analysis

[72]

Analysis

I am not at all impressed with the conduct of the applicant. Above, I reproduced a summary as submitted by Mr. Quirt. Having heard and considered the evidence, I am persuaded that by and large that summary is accurate.

73To be clear, all of the conduct summarized by Mr. Quirt is problematical. Without seeking to minimize any of it, I should say that of significance is Mr. Kacpura’s propensity for being late. While he admitted to being late a few times, the emails exchanged between the parties disclose something much more significant. Mr. Kacpura was late many times, and often for significant periods. Not only did his lateness interrupt the children’s routine, it made life very difficult for the respondent. Ultimately, she had to hire a babysitter.

74Mr. Kacpura’s attitude seemed to be “so I’m late – it’s not a big deal”. With respect, it is a big deal. Just because the children may want to stay longer is no answer. It is the parents who must impose discipline in order that a routine may be maintained. Quite apart from the impact on the children’s routine, which can be significant, there is also the impact on the other party. Access schedules come to be relied on by the parties. They schedule other matters, including their work, around those schedules. Any significant deviation from them can be quite upsetting.

75That is not to say that a parent might not occasionally be late. That is simply part of life, and the parties must make adjustments. However, persistent lateness, and the attitude exhibited by Mr. Kacpura, are unacceptable.

76Mr. Kacpura exhibited much better behaviour in the two weeks preceding trial. However, I give that little weight. In Attorney General for Ontario v. Orange Productions Ltd. et al., [1971] 3 0.R. 585 (H.C.J.), Chief Justice Wells, at page 599, quoted an old aphorism, “when the devil is sick the devil a saint would be”, which is an apt way of describing Mr. Kacpura’s recent improvement.

77While the respondent has not been perfect (she took the position, at one point, that the applicant should have no access), her conduct has not been of the same order as the applicant’s. Generally speaking, she has been willing to accommodate the applicant within reason. She allows him to telephone the children unimpeded, unlike the applicant. She simply wants the applicant to behave in a reasonable way.

78It is with these considerations in mind, among others, that I must assess the competing claims for custody and access.

79First, as to custody. I am not persuaded that an order for joint custody is in the best interests of the children.

80These parties have been in high conflict since they separated. Communication has been difficult, and confrontational. I think most of the fault lies with the applicant.

81In order for an order of joint custody to work, the parties must be able to communicate and jointly make decisions in the best interests of their children. As stated by Weiler J.A. in Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 10 R.F.L. (6th) 373 (Ont. C.A.), at para 11:

There must be some evidence before the court that, despite their differences, the parties are able to communicate effectively with one another .

82While a standard of perfection is not required (see Warcop v. Warcop (2009), 2009 CanLII 6423 (ON SC), 66 R.F.L. (6th) 438 (Ont. S.C.J.)), nevertheless, there must be a reasonable measure of communication and cooperation in place so that the best interests of the child can be ensured on an ongoing basis: Warcop, at para 94. That is not the case here.

83It is true that there does not seem to be any disagreement, at present, as to important matters such as education, religion, and medical care. However, that is likely the case because final decisions in those respects have been made by the respondent. I am not persuaded that if the applicant is given the right to jointly make decisions with the respondent, he will behave in a reasonable manner. I see no reason to change the status quo. In my view, it is in the best interests of the children that the respondent have sole custody.

84For these reasons, I order that the respondent have sole custody of the children.

85I have given anxious consideration to whether the applicant should be given any expanded access beyond what he has now. As noted, his behaviour has concerned me greatly. In the final analysis, however, I am persuaded that it would be in the best interests of the children that access be expanded.

86It is generally considered that maximum contact between a child and his or her parent is to be fostered and is in the best interests of a child. Where the parties live in the same community, that general principle can more easily be accommodated.

87Where the parties live some distance apart, as here, that principle is less readily achieved, however, it remains valid.

88There is no suggestion that the applicant mistreats the children, or that he is not a good parent. The respondent has some criticism of his parenting skills, but in my view they are not serious. It is true that he probably allows the children to eat at McDonalds too much, but it is also true that if he is able to take the children home during his mid-week access vists, it is more likely that they will eat proper meals.

89Ms. Cantor advised me that if I award the access schedule her client requests, her client will do all the driving. That will be part of the order.

90On balance, I think it would be in the best interests of the children that they observe the access schedule proposed by the applicant. Accordingly, effective immediately they will visit with the applicant from after school on Tuesdays and Thursdays until the commencement of school the following day. They will be with the applicant every alternate weekend from Friday after school until Monday before school. I assume that counsel will be able to sort out the details in terms of pick up and drop off times and locations, but if there are remaining issues in that respect I may be spoken to.

91I see no reason why both parties should not be able to travel with the children. If it is proposed that they be taken outside Canada, I order that an itinerary be furnished in writing to the other party, together with contact information. Passports for the children shall be furnished to the travelling parent as required.

92As for child support, it seems clear that Guideline support is payable to the respondent. If there is any remaining dispute, I may be spoken to.

93I accept Ms. Cantor’s submission that the parties be given an opportunity to work out a summer access schedule. If they are unable to do so, I will entertain written submissions.

94The parties were able to agree on certain final orders. The parties are free to incorporate any or all of them into the final order resulting from the trial before me, or to take out separate orders as they see fit.

95Once I have finalized any remaining issues, I will entertain written submissions with respect to costs according to a schedule that I will fix.

Gray J.