Chelsom v. Hinojosa-Chelsom 2017 ONSC 5937

COURT FILE NO.: FS-16-51856

DATE: 2017-10-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Glenn Chelsom, Applicant

AND:

Narvy Hinojosa-Chelsom, Respondent

BEFORE: The Honourable Madam Justice L. Madsen

COUNSEL: Yervant Boghossian, Counsel, for the Applicant

Shokheen Singh, Counsel, for the Respondent

HEARD: September 20, 2017

AMENDED ENDORSEMENT

AMENDMENT:

Corrected Decision: The text of the original judgment was corrected on October 10, 2017.

The Order at paragraph 78 is amended as set out below. Amendments are underlined.

ENDORSEMENT

[1] The Applicant father, Glenn Chelsom [“Mr. Chelsom”] brings a Motion for assorted relief including custody, primary residence, a holiday schedule, telephone access, disclosure, child support, and spousal support. The Respondent mother, Narvy Hinojosa-Chelsom [“Ms. Hinojosa-Chelsom”] brings a cross Motion seeking retroactive and ongoing child and spousal support, proportionate sharing of special and extraordinary expenses, and an irrevocable beneficiary designation on Mr. Chelsom’s life insurance policy. Both parties made arguments about imputation of income to the other party, retroactively and ongoing.

[2] At the hearing of the Motion the parties were able to agree on the appointment of the OCL, use of Our Family Wizard, and to third party information about the child being available both parents.

[3] For the reasons set out below, this Court declines to make a temporary custody Order for Emma Susan Natalia Chelsom, born July 20, 2009 [“Emma”], but finds that she shall have increased time with her father, including holiday time as set out below. This Court also declines to make retroactive child and spousal support Orders or to impute income to either party as sought, as these are issues best decided at Trial on fuller evidence tested by cross examination. Temporary child and spousal support arrangements, as well as life insurance terms, are provided for below.

[4] The Court is concerned about the level of the conflict between the parties in this matter and of the potential impact on Emma. Mr. Chelsom and Ms. Hinojosa-Chelsom are encouraged to move this case to resolution so they can focus on jointly parenting their child, and giving her the best start in life. The limited resources of this family would be better spent on raising this little girl rather than on continued Court involvement.

BRIEF SUMMARY OF THE FACTS

[5] The parties married on July 18, 1998 and separated after a seventeen-year marriage, on July 1, 2015. They have one daughter, Emma.

[6] The parties continued to reside together in the matrimonial home until October 2015, when Mr. Chelsom found other accommodation.

[7] The matrimonial home was sold in January or February 2016. When Ms. Hinojosa-Chelsom moved from the home, she refused to provide her new address to Mr. Chelsom, who learned the information from a third party.

[8] Emma has lived with her mother since separation.

[9] Following separation the parties attempted to negotiate temporary parenting and support arrangements but did not arrive at a written agreement. Since approximately October 2015, Emma has spent alternate weekends with her father from Fridays after school until Sundays at 5:00 pm. Although there were discussions about also having parenting time for Emma with her father on Thursday evenings, Ms. Hinojosa-Chelsom would not ultimately agree to this.

[10] Mr. Chelsom started proceedings in September 2016 seeking, among other relief, primary residency of Emma or in the alternative increased parenting time with Emma, and either sole decision-making for Emma or in the alternative joint decision-making.

[11] This is the first Motion brought by either party in this matter.

[12] There has been significant conflict between the parties. Mr. Chelsom filed copies of many text messages between himself and Ms. Hinojosa-Chelsom in which he either seeks additional time with Emma, or the ability to speak with her by phone. Although Ms. Hinojosa-Chelsom complained that the text message exchanges are incomplete (which they appear to be), she did not file the complete text exchanges in her responding material which was open to her to do if she thought that material would assist her. In the texts filed, it is clear that Ms. Hinojosa-Chelsom has been very hurt and angry about the conclusion of the parties’ relationship and has not been open to Emma having additional time with her father. Many of the messages from her to Mr. Chelsom are disrespectful and insulting.

[13] The Children’s Aid Society has been contacted on several occasions. There is no open file with the agency with respect to either parent’s care of the child.

[14] Ms. Hinojosa-Chelsom alleges that Mr. Chelsom was financially, emotionally, and physically abusive during the marriage. She has called the police numerous times in relation to access exchanges. The police records attached to Mr. Chelsom’s affidavit indicate numerous verbal disagreements between the parties, but contain no evidence that Ms. Hinojosa-Chelsom has ever alleged to police any physical abuse despite her numerous calls to them.

[15] The parties have had difficulties scheduling activities for Emma. She was enrolled in ringette, which she enjoyed, but Ms. Hinojosa-Chelsom was not prepared to take her to that activity on her time. Emma missed many games and practices. She was also enrolled in Spanish for a period of time, but this fell partly on Mr. Chelsom’s time, and although he took her initially, as at the hearing of the Motion he was no longer doing so as he felt it interfered with his very limited time with her.

[16] There have been some difficulties with pick-ups and drop-offs which have been at a Tim Hortons.

[17] Mr. Chelsom has had some difficulty obtaining educational information from Ms. Hinojosa-Chelsom about Emma and he asserts that she has not allowed Emma to bring her homework to his home on his weekends.

[18] During the marriage, Mr. Chelsom was a graphic designer. He worked for 17 years with Transcontinental Interactive Inc., before he was laid off on April 26, 2015 as part of a downsizing of the company. When he was let go, his income was approximately $83,000 per year. For five months he was in negotiations with the company regarding a termination package. On September 28, 2015, Mr. Chelsom received a severance package whereby he received $74,917 less legal fees ($2,300), covering an eleven month period from the termination date. In the termination agreement, Mr. Chelsom was under a non-competition clause until October 20, 2015, six months after his termination.

[19] Mr. Chelsom’s materials indicate that he looked for work between January 2, 2016 and March 30, 2017, during which period he states that he applied for approximately 50 positions within his field of expertise. He provided a detailed list regarding his job search but the supporting documentation was not in evidence. From June 2016 onwards, Mr. Chelsom received Employment Insurance. Finally in May, 2017, he secured work as a graphic designer, earning approximately $40,396 per year, according to his most recent sworn Financial Statement. This is approximately half of what he was previously earning.

[20] Ms. Hinojosa-Chelsom was employed intermittently during the marriage, although there is little evidence in the record about what her income from employment was. Mr. Chelsom believes that at one point her income may have been between $40,000 and $45,000 per year, but he indicates that she did not share specific income information with him during the marriage. Ms. Hinojosa-Chelsom states that she was a home-maker and full time mother during the marriage and that she was employed on and off during the early years of the relationship. Mr. Chelsom attaches receipts for full time day care when Emma was very young (2011 and 2012). Roles played during the marriage are disputed.

[21] The only information before the Court of Ms. Hinojosa-Chelsom’s income during the marriage is the uncontroverted evidence that she earned $811 from employment in 2013, and $1,271 in 2014. Other income in the years 2013-2015 was comprised of withdrawals from RRSP’s and the Universal Child Care Benefit. There is no evidence of any earned income in 2017.

[22] Mr. Chelsom was the breadwinner during the parties’ marriage. After separation, including after he vacated the home, he states that he continued to cover expenses of the home as well as other expenses such as cell phones and vehicle insurance for a period of time until the house sold in January 2016. Ms. Hinojosa-Chelsom disputes this evidence.

[23] Mr. Chelsom did not pay ongoing child support, taking the untenable position that he would not pay child support until there was a Parenting Agreement or Order in place (on the basis that he did not agree to the parenting arrangements). In August 2017, however, Mr. Chelsom wisely made a catch-up payment. He paid $10,778 based on his calculation of child support owing since the date of separation (including during the period of time he was covering expenses of the home). This may or may not be the correct amount of child support for the period in question.

[24] When the home was sold in early 2016, approximately $130,000 was advanced to each party from the proceeds of sale. $50,000 was paid to Ms. Hinojosa-Chelsom’s as an advance on equalization.

LAW AND ANALYSIS

Parenting Issues

[25] The best interests of young Emma are the sole consideration in the determination of custody and access arrangements between her parents. Best interests shall be determined by reference to the condition, means, needs and other circumstances of the child.

Parenting Time

[26] Section 16(10) of the Divorce Act, the “maximum contact” provision, provides that the Court shall give effect to the principle that a child of the marriage shall have as much contact with each spouse as is consistent with the best interests of the child, and that for that purpose the Court shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[27] An important consideration in determining interim parenting arrangements is what the status quo has been for the child.

[28] Emma has lived with her mother since separation, now over two years, and has had what can only be considered very minimal time with her father. The evidence before the Court shows that Ms. Hinojosa-Chelsom has not been open to expanding Mr. Chelsom’s time with Emma, and that she has not consistently facilitated telephone time. Her texts show that she has not been supportive of Emma’s time with her father.

[29] Mr. Chelsom seeks an Order that Emma reside with him. In the alternative he seeks a shared parenting arrangement. In the further alternative he seeks greater parenting time than he has now. Ms. Hinojosa-Chelsom’s position is that the current status quo should continue, namely, alternate weekend access only.

[30] In this case, there is a tension between the maximum contact principle and what has evolved as the status quo.

[31] A continuation of this status quo does not respect the principle set out in Section 16(10) of the Divorce Act. The evidence does not disclose any “compelling reason” to limit Emma’s access to her father to the restrictive current arrangement. See Vamos v. Vamos, [2012] O.J. No. 1778.

[32] In Orszak v. Orszak, 2000 CarswellOnt 15745, Justice Himel stated:

Custody and access arrangements following separation and divorce sometimes pose the most difficult problems affecting the family. With the passage of time, positions become entrenched and what may have seemed a temporary or short term solution can become the long term or status quo arrangement. Those arrangements may, however, not meet the test that overrides all else in these cases – the best interests of the children. It is not too late to undo wrongs and rectify or improve situations but that must be done gradually over time, always keeping the best interests of children at the forefront…

In this case, the existing arrangements do not fulfill some of the relevant considerations in the best interests test.

See paragraphs 42 and 49.

[33] The status quo that has evolved is not in Emma’s best interests. Emma should have more time with her father than she does now. For there to be a twelve day gap (from Sunday night to Friday after school two weeks hence) between Emma’s times with her father is not warranted on the evidence in the materials.

[34] At the same time, the evidence does not presently support switching Emma’s residency to reside primarily with her father, or a shared parenting arrangement. As in Orszak, supra, on the facts of this case, Emma’s time with her father should be expanded incrementally.

[35] The parties previously discussed there being parenting time for Mr. Chelsom on Thursdays after school. The Order below provides for evening parenting time from after school to 8:00 p.m. on the Thursdays before his access week-end, and overnight access from Thursday after school to Friday at the commencement of school on the Thursdays following his access weekend. In addition, Emma shall spend Tuesday nights from after school until 8:00 pm with her father. This arrangement will expand her time with her father in a manner that respects section 16(10) of the Divorce Act, while recognizing the need for an incremental transition from a lengthy status quo. I find that this is the amount of contact which is in Emma’s best interests at this time.

[36] If there is to be a further expansion of parenting time this can be addressed at Trial where there will be more fulsome evidence about each parent’s strengths and challenges, and about Emma.

Decision-Making

[37] Mr. Chelsom seeks temporary sole custody pending Trial, or in the alternative, joint custody. Ms. Hinojosa-Chelsom did not seek specific relief related to custody. There is currently no interim custody Order.

[38] Emma is eight years old and already enrolled in school. The materials disclosed no evidence of upcoming medical or religious decisions which need to be made for her. In this case, it is likely that there are few, if any, major decisions that would need to be made for Emma pending Trial.

[39] The case law generally eschews joint custody where there is a high level of conflict between parents. Having said that, a parent cannot rely on his or her own conflict-generating behaviour as a shield against a joint custody Order. In some cases, an Order of joint custody is necessary to help ensure that a parent is not marginalized by the other parent. See Nderitu v. Kamoji, 2017 CarswellOnt 8107 and Lawson v. Lawson 2006 CanLII 26573 (ON CA), 2006 CarswellOnt 4789 (Ont. C.A.).

[40] Since separation, Mr. Chelsom has had some difficulty obtaining information about Emma’s schooling and other issues related to her care. There is evidence that Ms. Hinojosa-Chelsom has been unwilling to communicate with him about Emma. However, the evidence as it pertains to decision-making for Emma is limited.

[41] The record is inadequate to make a temporary sole or joint custody Order at this time. In the circumstances, there shall be no temporary Order as to custody. Neither party shall make any major decision in respect of Emma’s education, health, or religion, without the agreement of the other party. If the parties are unable to agree on a major parenting issue, the matter may be returned to Court for a determination to be made.

Holiday Schedule

[42] Mr. Chelsom sought a specific holiday schedule in his Notice of Motion. Ms. Hinojosa-Chelsom did not take a position on that proposal or propose a different schedule in her responding materials. The schedule appears reasonable and in the best interests of Emma. The holiday schedule is set out below.

Activities

[43] The parties have had conflict arising from scheduling activities on each other’s time, in particular in relation to ringette and Spanish.

[44] An unfortunate consequence of separation is that it is simply difficult to select activities that do not interfere with the other parent’s time. Difficult as it may be however, that is the expectation, while at the same time parents should strive to cooperate so that the child’s involvement in activities is not unduly restricted.

[45] Either party may schedule activities on their own time with the child. However, if an activity will impact the other parent’s time, consent must be sought in advance. If a party chooses to enrol a child in an activity that does impact the other parent’s time, he or she must be willing to live with the possibility that the other parent may not always be able or willing to get the child to the activity. Mr. Chelsom and Ms. Hinojosa-Chelsom are encouraged to cooperate to select an activity for Emma that they can both agree on, each season, so she does not miss classes (as in the case of Spanish) or miss practices or games (as in the case of ringette).

Police Enforcement

[46] Mr. Chelsom seeks a police enforcement clause for access. This Order is not necessary or appropriate on the facts of this case.

Child and Spousal Support

Retroactivity

[47] Ms. Hinojosa-Chelsom seeks retroactive child and spousal support from the date of separation. Mr. Chelsom asserts that in making the catch-up child support payment in August 2017, he has brought himself current to the date of this Motion. He also stresses that for a period of time he covered the expenses of the home, cell phones, insurance, and other expenses. Ms. Hinojosa-Chelsom asserts that he did not cover those expenses.

[48] To address retroactivity requires the determination of incomes for both parties since separation, which itself requires addressing retroactive imputation arguments by each party against the other. Determining retroactivity also requires an assessment of what payments Mr. Chelsom has made, and what credits, if any, he should have for those payments. There are credibility issues that are not resolvable at this stage without viva voce evidence.

[49] The evidence is insufficient on the Motion to address the claim for retroactive child and spousal support, including the claim for retroactive special and extraordinary expenses. There is no urgent or compelling reason which would justify ordering retroactive support on this Motion. See for example M.(T.I.) v. M.(T.L.), 2003 CarswellBC 3168. See also Bowerman v. Bowerman, 2017 ONSC 5192.

[50] The parties need an opportunity to testify and be cross examined before retroactivity is addressed. Accordingly, the issue of retroactivity is reserved to the Trial Judge hearing this matter.

Imputation Arguments

[51] Both parties argue that income should be imputed to the other for the purpose of determining ongoing child and spousal support. This Court is not prepared to impute income to either party at this early stage on the limited and untested evidence before the Court. While there may be cases where imputation is appropriate on an interim basis, this is not such a case.

[52] Section 19 of the Child Support Guidelines governs the imputation of income for support purposes and provides as follows:

19. Imputing Income (1) – The Court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse. Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (Ont. C.A.) is the leading case in Ontario regarding the imputation of income. In that case, Justice Gillese set out the following three-part test to be applied in considering a request to impute income:

1. Is the spouse intentionally underemployed or unemployed?

2. If so, is this required by his or her reasonable educational needs, or the needs of a child of the marriage, or arising from reasonable medical needs?

3. If the answer to # 2 is ‘no’, then the Court is to decide whether to exercise its discretion to impute income and if so, in what amount.

Drygala v. Pauli, supra, as summarized in Tillmans v. Tillmans, 2014 ONSC 6773, 2014 CarswellOnt 16487

[53] There is a duty to seek out reasonable employment that will maximize earnings so as to meet the needs of one’s dependents. Thompson v. Thompson, 2013 ONSC 5500 (S.C.J.), as cited in Tillmans, supra at 54.

[54] The onus is on the party seeking to impute income to establish that the other party is intentionally underemployed or unemployed. The party requesting an imputation must establish an evidentiary basis upon which the finding can be made. Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (Ont. C.A.) as cited in Tillmans, supra at 58.

[55] If a Court finds that a payor is intentionally underemployed or unemployed, it cannot arbitrarily allocate an imputed income. As set out in Tillmans, “The Court must consider many factors including age, education, experience, skills and health of the party; his or her past earning history…” Tillmans, supra at 67. The party seeking to impute income has an obligation to provide a rational evidentiary basis for the amount of income proposed.

[56] Ms. Hinojosa-Chelsom seeks imputation to Mr. Chelsom in the amount of $134,384 per year, which is the income that Mr. Chelsom earned in the year 2015 accounting for both his employment income and his severance package. On the Motion, her counsel acknowledged that this is not a reasonable position given Mr. Chelsom’s consistent employment earnings in the range of $81,000 to $84,000 from 2010 to 2014. Ms. Hinojosa-Chelsom argues that Mr. Chelsom is underemployed in his new employment where he is earning $40,396 and asserts that as a senior graphic designer he should be well able to secure employment at a similar level of remuneration as he had before his termination shortly before separation. She provides no evidence in support of this assertion.

[57] Addressing these arguments requires more fulsome evidence than that available on the Motion, and requires determinations of credibility. At Trial, Mr. Chelsom will have an opportunity to testify about his job search and his ability, or not, to find employment at his previous rate of pay. Ms. Hinojosa-Chelsom will have an opportunity for cross-examination to test that evidence.

[58] Mr. Chelsom seeks imputation of income to Ms. Hinojosa-Chelsom for the purpose of any spousal support determination, arguing that if the appropriate level of income is imputed there is no spousal support obligation at all under the Spousal Support Advisory Guidelines. He asserts that because, on his evidence, Ms. Hinojosa-Chelsom was gainfully employed during the marriage “in different capacities for different periods of time,” because he encouraged her to work outside the home, and because she was terminated from various jobs, she is not entitled to spousal support.

[59] There is virtually no evidence regarding Ms. Hinojosa-Chelsom’s income during the marriage or of her earnings history. As set out above, the only evidence of her income is that she earned $811 from employment in 2013, and $1,271 in 2014. As noted, there is no evidence of employment earnings in 2017. She has been drawing down her RRSP’s.

[60] Mr. Chelsom acknowledges in his materials that Ms. Hinojosa-Chelsom was without employment for the last four years of the parties’ relationship.

[61] There is simply no basis, at this stage of the proceedings and with the limited evidence in the materials, to impute an income to Ms. Hinojosa-Chelsom at this time. While it may be that at Trial that income is imputed to her on both a retroactive and prospective basis, the evidence is presently insufficient to ground the imputation argument. To state simply that “she could work”, with no evidence about where, and at what rate of pay, and regarding how her experience and credentials would qualify her for the proposed employment, does not suffice.

[62] In Siddiqui v. Siddiqui, 2015 ONSC 6544, Justice Lemon stated:

The Court should be slow to impute income on an interim basis without evidence to support the amounts requested. On the affidavits that I have been provided, I cannot make a finding of credibility. Both deny significant items in each other’s affidavits.

[63] This Court finds itself in a similar position with respect to both parties.

Ongoing Child and Spousal Support

[64] On the basis of the foregoing, temporary child and spousal support shall be based on the parties’ respective actual incomes at this time, that being $0 per annum for Ms. Hinojosa-Chelsom and $40,396 for Mr. Chelsom.

Child Support

[65] Accordingly, Mr. Chelsom shall, commencing September 1, 2017, with credit for any payment already made under Justice Sloan’s Order of August 17, 2017, pay child support in the amount of $364 per month, on the first day of each month.

Spousal Support

[66] If a party establishes a prima facie case for relief, a court will determine interim spousal support largely on the basis of the parties’ needs and means. See Knowles and Lindstrom, 2015 ONSC 1408.

[67] It appears at this stage of the proceedings that Ms. Chelsom has, at a minimum, needs-based entitlement to spousal support. She may also have a compensatory entitlement but this issue will be explored at Trial.

[68] The evidence is that Ms. Hinojosa-Chelsom does not have earned income at this time and has been drawing down her RRSP’s since separation to meet her needs. While her sworn Financial Statement shows that she still has some of the proceeds of sale of the matrimonial home, she is not required to liquidate her capital to meet her needs where Mr. Chelsom has some ability to pay temporary spousal support.

[69] Absent exceptional circumstances, temporary spousal support should be within the ranges suggested by the Spousal Support Advisory Guidelines. See Driscoll v. Driscoll, 2009 at CarswellOnt 7393 at 14.

[70] Neither party made arguments as to where in the SSAG ranges spousal support should fall if ordered. The Respondent simply provided the SSAG ranges to the Court while the Applicant argued that there was no entitlement and did not advert to the ranges. Based on the evidence available at this juncture, the Court is of the view that the appropriate range, subject to adjustment by the Trial judge, is presently the mid-range, given the length of the marriage, the Respondent’s current needs, and the Applicant’s current means. Accordingly, interim spousal support shall be payable at the mid-range of the Spousal Support Advisory Guidelines.

[71] Accordingly, commencing September 1, 2017, Mr. Chelsom shall pay spousal support to Ms. Hinojosa-Chelsom in the amount of $699 per month, being the mid-range of the SSAG’s on the incomes set out at paragraph 64.

Special and Extraordinary Expenses

[72] Ms. Hinojosa-Chelsom has sought a proportionate contribution to Emma’s special and extraordinary expenses and acknowledged on the Motion that the only such expenses set out in her materials are uninsured dental expenses and gymnastics (other expenses sought being properly payable by her when she is in receipt of table child support). Based on the incomes set out above and accounting for the payment of spousal support, Mr. Chelsom shall pay 79% of the cost of those expenses while Ms. Hinojosa-Chelsom shall pay 21%.

[73] In the event that either party wishes the other to contribute to other special and extraordinary expenses he or she shall seek the prior written consent of the other party. Such consent shall not be unreasonably withheld.

Disclosure Sought

[74] Mr. Chelsom seeks an Order that Ms. Hinojosa-Chelsom produce an updated Financial Statement including a document brief and a certificate of financial disclosure. That request appears to be moot as of the hearing of the Motion as those materials have been filed in the Record.

[75] Mr. Chelsom also seeks an Order that Ms. Hinojosa-Chelsom produce her “employment files” for the duration of the marriage. The request as framed is over-reaching. Having said that, and in order to move this matter along, it would be fully appropriate for Ms. Hinojosa-Chelsom to provide her complete income tax returns and notices of assessment for the years 2010, 2011, and 2012, to Mr. Chelsom, within 30 days of this Endorsement. I make this determination without prejudice to Mr. Chelsom’s right to seek further, better particularized disclosure regarding Ms. Chelsom’s income during the marriage and regarding employment positions she may have held.

Life Insurance

[76] Ms. Hinojosa-Chelsom seeks an Order that she be designated as sole and irrevocable beneficiary of any policy of life insurance currently held by Mr. Chelsom as security for child and spousal support. Mr. Chelsom did not take a position on this issue during the Motion. Mr. Chelsom’s Financial Statement does not disclose an interest in any life insurance policies.

[77] The Order sought by Ms. Hinojosa-Chelsom is appropriate in the circumstances and is granted below, except that the designation is not “irrevocable” at this time.

Conclusion

[78] Based on the foregoing, I make the following Order:

1. OCL Request: On consent, the Office of the Children’s Lawyer is requested to investigate and make recommendations to the Court concerning custody of and access to the child, Emma Susan Natalia Chelsom, born July 20, 2009;

2. Information Sharing: On consent, the parties shall use Our Family Wizard to communicate regarding the child and to share information regarding special and extraordinary expense for the child;

3. Access to Information from Third Parties: On consent, both parties shall have the right to make enquires and be given information as to the health, education, and welfare of the child. Upon request of the Applicant, the Respondent shall provide a signed Authorization and Direction providing her consent to the release of information about the child pursuant to this clause.

4. Temporary Custody: There shall be no Order at this time with respect to temporary custody of the child. Neither party shall make any major decision in respect of the child’s education, health, or religion without the prior agreement of the other party. If the parties are unable to agree as to a major parenting issue, the matter may be returned to Court for a determination to be made.

5. Regular Parenting Time: The child shall reside primarily with the Respondent. Commencing immediately, the child shall have regular time with the Applicant as follows:

Week One:

a. Tuesday from after school until 8:00 p.m.;

b. Thursday from after school until Friday morning at the commencement of school;

Week Two:

c. Tuesday from after school until 8:00 p.m.;

d. Thursday after school until 8:00 p.m.;

e. Friday after school until Sunday at 5:00 p.m.

6. If the child is not in school on a specific day, “commencement of school” in paragraph 5 and 8 herein shall mean the time that school normally commences, and “after school” shall mean the time that school normally concludes.

7. Pick-ups and drop-offs of the child shall be at the child’s school during the school year on school days and at the Respondent’s home on Sunday evenings and/or summer months that the child is not in attendance at school.

8. Holiday Schedule: The following holiday schedule overrides the regular schedule and shall commence immediately:

a. Halloween: The child shall spend Halloween with the Applicant in odd-numbered years and with the Respondent in even-numbered years, from after school until 7:30 p.m. The party with whom the child spends Halloween shall be responsible for the Halloween costume;

b. Christmas: In odd-numbered years, the child shall reside with the Applicant during the Christmas Break from school as follows: from December 24 at 3:30 p.m. until December 25 at 3:30 p.m., from December 27 at 3:30 p.m. until December 31 at 3:30 p.m., and on January 1 from 3:30 p.m. to 7:30 p.m. In even-numbered years the child shall reside with the Applicant from December 25 at 1:00 p.m. until December 27 at 3:30 p.m. and from December 31 at 3:30 p.m. until January 1 at 3:30 p.m. When the child is not residing with the Applicant during the Christmas Break from school, she shall reside with the Respondent;

c. March Break: The child shall reside with the Applicant in odd-numbered years from Monday at 9:00 a.m. until Friday at 3:30 p.m. and with the Respondent from Monday at 9:00 a.m. until Friday at 3:30 p.m. in even-numbered years;

d. Summer Break from School: The child shall have two non-consecutive 7-day weeks with each parent, with each week commencing on Friday at 5:00 p.m. and ending the following Friday at 5:00 p.m., each summer. The parties shall notify one another in writing by May 31 each year of their preferred weeks. In the event of a conflict in preferred dates, the Respondent shall have first choice in even-numbered years and the Applicant shall have first choice in odd-numbered years, unless either party is unemployed, in which case the employed party shall have first choice that year;

e. Thanksgiving: The child shall reside with the Applicant on Thanksgiving Monday from 9:00 a.m. to 7:30 p.m. in odd-numbered years and with the Respondent on Thanksgiving Monday from 9:00 a.m. to 7:30 p.m. in even-numbered years;

f. Father’s Day and Mother’s Day: The child shall reside with the honoured parent on Mother’s day and Father’s Day from 9:00 a.m. until 5:00 p.m.;

g. Such further and other holiday time as the parties may agree upon from time to time in writing, in advance.

9. Telephone time: When the child is in the care of either party, the parent having care of the child shall arrange a short phone call (5 minutes) between the child and the other parent before bed-time. If a parent will be unable to facilitate a call at that time, he or she shall advise the other parent by text in advance and propose another time on the same day for the call. Each parent shall give the child privacy for the phone calls and shall refrain from discussing adult issues with the child.

10. Activities: Neither party shall schedule activities for the child on the other party’s time with the child, without the prior written consent of the other party.

11. Child Support: Commencing September 1, 2017, with credit for payment made under the temporary Order of Justice Sloan dated August 17, 2017, the Applicant shall pay temporary child support to the Respondent in the amount of $364 per month, on the first day of each month, based on his income for child support purposes of $40,396.

12. Special Expenses: Commencing September 1, 2017, the Respondent shall pay 21% of the cost of the child’s special and extraordinary expenses and the Applicant shall pay 79%, which expenses shall at this time include gymnastics and uninsured medical and dental expenses. In the event that either party wishes the other to contribute financially to a further proposed special and extraordinary expense, he or she shall seek the prior written consent of the other party, such consent not to be unreasonably withheld.

13. Spousal Support: Commencing September 1, 2017, the Applicant shall pay temporary spousal support in the amount of $699 per month, on the first day of each month, based on the Respondent’s income of $0, the Applicant’s income of $40,396, and the mid-range of the Spousal Support Advisory Guidelines.

14. Disclosure: The Respondent shall, within 30 days, provide to the Applicant copies of her Income Tax Returns and Notices of Assessment from the years 2010, 2011, and 2012.

15. Life Insurance: The Applicant shall, within 30 days, name the Respondent as sole beneficiary of any policies of life insurance on his own life held by him, and maintain such beneficiary designation until further Order of the Court or written agreement between the parties. Within 30 days, he shall provide proof to the Respondent that the designations have been made as required by these paragraphs. He shall file designations with the plan administrators as provided by the Insurance Act.

16. Support Deduction Order to issue.

17. The Respondent is granted leave to amend her Answer, to be served and filed within 14 days. The Applicant is granted leave to amend his Reply, if he wishes, within 7 days after the Respondent’s Reply is served and filed.

18. The balance of the relief sought by both parties is dismissed.

Costs

[79] The parties are encouraged to agree upon Costs, in this case where success appears to be divided. In the event that the parties do not agree, the Court will accept brief Costs submissions (3 pages double spaced) and Bills of Costs by October 20, 2017 and brief responding submissions, if any, by October 27, 2017. If submissions are not received on this timeline, the parties will be assumed to have settled the matter of Costs.

Madsen, J.

Date: October 10, 2017