Stoklosa v. Stoklosa, CITATION: 2017 ONSC 1697

COURT FILE NO.: FS -16-25493 DATE: 2017-03-15

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jeremy Justin Stoklosa, Applicant AND: Kristy Kathleen Stoklosa, Respondent

BEFORE: Mr Justice Ramsay

COUNSEL: Virginia Workman for the Applicant Patricia Lucas for the Respondent

HEARD: March 14, 2017 at Welland

ENDORSEMENT

[1] The parties married in 2012 and separated in 2016. They have two children – a daughter almost 4 years old and a son age 20 months. The Applicant father is paying child support based on a temporary order that was made on consent at the settlement conference. Both parties are moving today for further temporary orders.

[2] The Applicant father moves for an order setting out residence times for each parent either on the basis of joint custody, or no order as to custody for the time being. His proposed schedule would not affect child support. He also asks to be able to take the children to Florida on vacation beginning at the end of this week. The Respondent mother moves for an order for custody so that she can arrange counselling for the daughter. She says that the father will not consent, so she needs custody in order to arrange the required treatment. The mother also seeks an adjustment to temporary child support based on a change in the father’s income and an order for contribution to extraordinary expenses.

The family history

[3] The father is a paramedic. In 2016 he earned $82,920.

[4] The mother is a registered practical nurse. In 2016 she earned $38,814 working on average 22.5 hours a week.

[5] The parties’ relationship was strained for some time. The father began sleeping in a separate bed in 2015. The parties attended counselling together. In February 2016 the mother flew into a rage and the father decided that he had better leave the matrimonial home. The mother booked a vacation to the Dominican Republic. On March 26, 2016 the parties got into an argument. The mother wanted the father to give her written consent to take the children out of the country. The father would not unless she gave him consent to do the same on a future occasion. During the argument the mother took the father’s phone. When he tried to get it back they together ended up leaning on the toilet tank, causing it to crack. The mother claimed that it was the result of a push. The mother’s mother came over, the situation calmed down and the father gave the consent. While the family was away for three weeks, he moved out. When the mother returned home, the father texted the mother that he had moved out. The text messages over the next week show the father asking to see the children and the mother consistently refusing, for one reason or another.

[6] On April 6, 2016 the mother decided to report the March 26 incident to the police as an assault. She also told them that the father had 8 weeks earlier slapped the daughter’s hand. The father had slapped his daughter’s hand gently so that she would drop a nail that she was trying to eat. The police did not consider either event to be an assault.

[7] Thereafter the mother never agreed easily to any access. For example, she offered him an afternoon when she knew he had tickets to see the Blue Jays. Eventually several dates were ordered by the court. Often the mother made sure that the access exchange was unpleasant for the father, with the result that it was unpleasant for the children as well. She made disparaging comments. The father actually has a photograph of the mother sticking her tongue out at him on one of these occasions.

[8] The father proposes a two week schedule that would give him substantial but not equal parenting time. He wants joint custody, or simply no order as to custody, in order to reinforce the notion that he has parental rights, an idea that he feels the Respondent has failed to recognize.

[9] The mother wants sole custody but has no proposal for access. The Applicant, she says, has to set out further information and she has to be able to figure out something that will work with her own work schedule. She is soon to receive her next six-week schedule.

[10] She also says that the daughter needs to deal with psychological problems caused by the separation before she can be removed from her primary caregiver for extended periods of time. The son is still nursing, so he too cannot be apart from her for extended periods of time.

[11] The Respondent mother’s argument, in essence, is as set out in her factum:

The Respondent seeks an order that the children remain in her care, custody and control. She is opposed to a joint custody regime, as there is significant difficulty between her and the Applicant in communicating. The Applicant refuses to engage in discussions, even concerning the children, communicating only by text message, which are demanding and aggressive in nature. The Applicant has been less than forthright about his living arrangements or his relationship with his present girlfriend, which impacts on the level of trust that the Respondent has with him. The Applicant has failed to address the issue of the nature of his relationship with his girlfriend or the exposure the children would have to this girlfriend and/or her son or what role she has, or would have, in parenting when the children are with the Applicant.

[12] I have looked at the text messages and they do not seem demanding and aggressive to me. They start with the return from the Dominican Republic, when the father asked to see his children, whom he had not seen in three weeks. They continue along that line.

[13] Rather than try to work anything out the mother resisted, coming up with one reason after another. She also reported two incidents to the police that she obviously had not considered reporting when they occurred. Delayed reporting is often understandable, but in the present case we are not dealing with an abusive husband. He has not given her reason to fear him. I doubt the sincerity of her motives in making the police report.

[14] I have had time to look at the record, but not to set out extensive reasons dealing with all the various factual matters. The parties need an answer quickly and this is only an interim order in any event. My view based on the affidavits is that the father sincerely wants to spend as much time with his children as is consistent with their best interest, while the mother is motivated by extraneous considerations to push him out of the children’s lives to the extent possible. Where they differed, I believed the father.

[15] I consider the controversy over whether the father’s girlfriend is living with him or not to be an example of such an extraneous consideration. This woman is a police officer with one child, a 16 year old son. There is nothing in the evidence to suggest any concern over the children being exposed to her.

[16] Argument was directed to the question of the mother’s decision not to wean the son yet. I do not think it appropriate for me to weigh in on this intensely private matter. It should be worked out between mother and child. I can say, however, that since the child is now drinking from a cup and eating solids, and the mother has found it possible to accommodate his needs to her work schedule, as a practical matter the son is able to spend time away from his mother without prejudice to his nutritional needs or interference with continued nursing.

[17] I choose not to grant custody to either or both parties at this stage. They both have full parental rights. I think it important for the mother to recognize that she cannot continue to dictate how the children’s needs should be met, including any need for counselling. It is too early to say whether both or one parent will have custody at the end of the day, and if only one, which one.

[18] To me the more obvious reason for the daughter’s psychological distress is her separation from her father and her mother’s behaviour at exchanges, together with the mother’s failure to shield her from information about the grown ups’ controversies. A short family vacation with their father would be in the children’s best interest in my view.

[19] I order that the children shall reside with the parties on the basis of the two-week schedule in paragraph 2 of the notice of motion of February 22, 2017 (C.R. Tab 23), subject to the following: The children shall stay with their mother from the release of this endorsement until March 17, 2017 at 5 pm and then with their father from then until March 25, 2017 at 5 pm. On March 25, 2017 the children shall be returned to their mother.

[20] Week 2 begins on Sunday, March 26, 2017, when the children shall reside with their father commencing at 7 pm. Monday, April 2, 2017 is the beginning of week 1.

[21] The party to whose residence the children are going is responsible for transportation.

[22] I declare that the Applicant has the right to travel to the United States with the children from March 18 to March 25, 2017 without the Respondent’s consent. I order the Respondent to deliver the children’s birth certificates to the Applicant forthwith. She should sign the necessary consents in any event.

[23] Notwithstanding the previous arrangements, the Applicant shall have the children from August 5, 2017 at 9 am to August 12, 2017 at 7 pm.

[24] The Respondent is entitled to two non-consecutive vacation weeks in 2017 on dates to be arranged with the Applicant.

[25] This schedule is set with the father’s work schedule in mind. On a permanent basis, it may well be that a parenting schedule that takes into account both parties’ work schedules should be ordered. If that is not possible, it may be that the parties will each have to work their employment commitments around child care or make other arrangements for child care. At the moment I choose the father’s timetable because that is the only one I was offered, and the more urgent need at this point is to re-establish the father’s place in these children’s lives.

[26] At the end of the day, none of this need be contentious. These children have two fit parents who both earn money. Many children lack such advantages in life.

Child support

[27] The consent order of January 27, 2017 was based on the Applicant’s 2016 income. If it needs further adjustment that can be done at trial if necessary. The difference of a few dollars a month between the current rate and the adjustment requested will not be a burden to either party whatever the outcome.

Section 7 expenses

[28] The Applicant is ordered to pay his share of pre-school tuition, which I fix at $34 a month commencing March 1, 2017.

[29] No other extraordinary expenses have been identified. They can be left to trial. I see no need for babysitting fees when both parties are willing to help out on the other’s time and the children have willing grandmothers on both sides.

[30] The parties are encouraged to agree on costs in a reasonable amount. The father is the successful party but now is not the time to press his advantage. The parties will be in a continuing relationship for many years. If necessary they may address costs in writing within 7 days.

Orders

[31] I reiterate the orders for ease of reference. They are temporary orders:

a. The children shall reside with the parties on the basis of the two-week schedule in paragraph 2 of the notice of motion of February 22, 2017 (C.R. Tab 23), subject to the following: The children shall stay with their mother from the release of this endorsement until March 17, 2017 at 5 pm and then with their father from then until March 25, 2017 at 5 pm. On March 25, 2017 the children shall be returned to their mother.

b. Week 2 begins on Sunday, March 26, 2017, when the children shall reside with their father commencing at 7 pm. Monday, April 2, 2017 is the beginning of week 1.

c. The party to whose residence the children are going is responsible for transportation.

d. I declare that the Applicant has the right to travel to the United States with the children from March 18 to March 25, 2017 without the Respondent’s consent. I order the Respondent to deliver the children’s birth certificates to the Applicant forthwith.

e. Notwithstanding the previous arrangements, the Applicant shall have the children from August 5, 2017 at 9 am to August 12, 2017 at 7 pm.

f. The Respondent is entitled to two vacation weeks in 2017 on dates to be arranged with the Applicant.

g. The Respondent’s motion to vary child support is dismissed except that the Applicant is ordered to pay extraordinary expenses of $34 a month commencing March 1, 2017.

h. The parties may address costs in writing within 7 days.

J.A. Ramsay J.

Date: 2017-03-15