Court File and Parties

COURT FILE NO.: 15-D733 DATE: 2018/06/22 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Steven Kruschenske, Applicant – and – Lauren Kruschenske, Respondent

COUNSEL: Caroline Kelly, counsel for the plaintiff Hunter Phillips, counsel for the defendants

HEARD: May 16, 17, 18, 22 and 23 2018 (at Pembroke)

ACCESS DECISION

KANE, J.

[1] The issues proceeding to trial involved:

a) the terms of the father’s access with his children; and b) determination of the net equalization payment owing by the father to the mother.

[2] This decision deals only with access and related issues based upon the joint minutes of settlement filed at the start of trial. A second decision will be released as to the property and equalization issues.

Family Background

[3] The parties:

a) met one another at work in 2002; b) commenced dating and became intimate in 2005 or 2009, the commencement date of which is disputed but is not relevant beyond credibility; c) were married on April 16, 2011; d) have two children of their marriage, namely Andrew Kruschenske, born February 13, 2013, and Alexander Kruschenske, born April 16, 2015; and e) separated on May 2, 2015 when the mother announced that fact and departed with the children who have since resided with her with very limited contact with their father thereafter.

[4] The father is now 55 years old. His past and present employment is as a wildland firefighter, currently with the Department of National Defence at its military grounds in Petawawa. His firefighting employment in the past was seasonal. It is now full-time, year round. As a seasonal employee, he was unemployed from approximately November until April each year during which time he received unemployment insurance and actively pursued his interests in fishing, hunting and trapping of wildlife. He lives in Westmeath east of Pembroke in a home he owned prior to and since marriage from which he commutes to his employment in Petawawa.

[5] The mother is 41 years old. She is a biologist and employed full-time with the Ontario Ministry of Natural Resources in Pembroke. She lives in a home she purchased following separation in Petawawa.

[6] The mother took a 12-month maternity leave from work following the birth of each of her two sons.

[7] Westmeath through Pembroke to Petawawa is approximately a 45-minute drive.

[8] The mother in 2013 requested they attend marriage counseling. The father felt that was not necessary and refused that request.

[9] Upon the separation on May 2, 2015, Andrew was 2 years, or 26 months old. Alexander was 3 weeks old at the time of separation.

[10] The mother slept in the same bed in a separate room with Andrew and then with Alexander until each were approximately 2 ½ years old. The mother testified that Alexander currently leaves his bedroom during the night and comes into his mother’s bedroom at least 4 to 5 times per week, in response to which she either returns him to his bedroom or if she is tired, allows him to sleep with her. She cites this as a reason to limit his overnight access with his father.

[11] The father commenced this proceeding in November 2015 with claims including divorce, custody, access and an unequal division of net family property. He alleged the mother was preventing his access to the children.

[12] The mother in her December 2015 Answer claimed a divorce, child support, sole custody, age-appropriate access to the father and an equal division of net family property. The children were then 2 years, or 34 months old, and 7 months old. The mother submitted access to Andrew should be for 3 hours in the morning once every two weeks and a short dinner or play date once a week. She submitted that it was too early for full day visits as requested by the father.

[13] The mother proposed that Alexander could have shorter visits with his father, in the presence of the mother or maternal grandmother. The mother alleged the father had shown little interest and had minimal involvement with the children prior to and after the separation, was awkward with and not child oriented in his dealings with the children. The mother strictly limited the father’s time with his children.

[14] The father commenced paying child support 6 months following the separation and 3 months after commencement of his new employment in 2015. He agreed in January 2016 to pay table level child support and the appointment of the OCL which produced a report dated September 1, 2016. A subsequent such report is dated May 7, 2018.

[15] No interim custody or access motions were brought before trial.

OCL Report – September 1, 2016

[16] The boys were 3 years and 7 months and 1 year and 5 months old at the date of this report.

[17] This report by a social worker records the mother being concerned about the children feeling comfortable with their father as she stated that he had failed to take an active role or interest in caring for the children prior to separation. She is concerned the father’s outdoor interests would remain his priority, will result in the children being exposed to activities beyond their age and abilities, will result in a lack of their supervision and negatively impact his ability to parent safely. She reported that Andrew has been suffering from separation anxiety since the age of three which she fears will result with increased periods of access including overnights. The mother anticipated the parties are unable to make decisions together about the children. She wanted the children to have a positive and healthy relationship with her father but was concerned as to their safety, comfort and the father’s ability to parent.

[18] The mother at trial pointed to the risks of the father’s property, including its location on the Ottawa River, an adjacent pond and the interior stoves in the house which the father has only now agreed be gated or fenced off when the children are present.

[19] The father reported that he and the mother had dated for several years prior to the marriage in April 2011. That statement places in doubt his trial testimony that their first kiss and subsequent intimacy was not until 2009 or 2010, versus the mother’s testimony that they were dating with intimacy since 2005.

[20] The father told the social worker that he was off work during the winter months that his role was to cook and clean and his wife would take care of bathing, stories and bedtime for the children. He stated he would help with babysitting when Andrew was sick or there was a storm, which supports the mother’s testimony that she performed almost all of the daily care of the children as infants and that the father, for example, seldom changed Andrew’s diapers.

[21] The father expressed the wish that he wanted access on Saturday or Sunday, with Andrew spending the full day with him at his home and eventually every other weekend when he was older. He sought to have Alexander spend half days with him on his day of access until Andrew is two years of age and can communicate his feelings and needs such as the need to go to the washroom.

[22] The mother reported offering that the father could see the children at a center in Petawawa after work, attend Andrew’s fifteen-minute swimming lessons and have short visits before he went home. The father rejected these restrictions and in resisting them elected to not see his children.

[23] The father’s care of these two young children in the presence of the OCL social worker in 2016 indicates he needed occasional directions or suggestions as he undertook that task.

[24] The author reported the mother had made several suggestions as to venues and opportunities for access between the children and their father, which the father found to be inconvenient. The author concluded that these ways to have quality time with the children and opportunities for bonding with their father were missed.

[25] The author expresses the opinion that there had been a lack of flexibility by both parents, no willingness to accommodate the other and rigidity in planning for visits with the children. That rigidity was apparent as each parent testified. They each are responsible for the lack of access to date. This as to the mother creates some doubt as to her reliance on the father’s lack of capacity to care for the children.

[26] The author recommended:

a) sole custody to the mother with prior input from the father as to medical and educational decisions regarding the children with the mother having the final say in the event they could not agree; b) the father participate in service programs with the Public Health, Healthy Babies and Healthy Families as, although he is not a “bad or violent” parent, he is a new father who was not involved in much of the pre-separation primary care of the children and needed some time and additional resources to take on this new role; c) the father’s home did not appear prepared for small children, including Andrew. The father was required to purchase and install such equipment; d) the father needed to build a relationship with Alexander which has been difficult due to their limited time together, which should proceed slowly and in a supportive environment at the Ontario Early Years program on Saturdays; and e) access was to increase to family functions and holidays, starting with periods of four hours and to increase gradually to full days with overnight access to commence after a gradual increase to full day access for Andrew and introduction of Alexander to access.

[27] The father testified that there is limited accessibility to parenting courses in the area where he lives, however, he reference materials recommended by the local public health nurse and had spent several hours online reading parenting articles.

Lavery Report – May 7, 2018

[28] The parties subsequently engaged the services of another social worker, Ms. Lavery, who prepared an updated report dated May 7, 2018 to consider the following:

a) concerns, if any, regarding the father’s ability to supervise the children at the same time; b) concerns regarding any anxieties Andrew had as to sleepovers; c) concerns, if any, regarding unsupervised access visits between Alexander and his father; and d) providing recommendations, if any, as to the parties facilitating a more meaningful relationship between the father and Alexander.

[29] The boys were 5 years, 3 months and 3 years, 1 month old as of the date of this report.

[30] Ms. Lavery in this subsequent report almost two years after the OCL Report states:

a) Andrew is a very articulate child with a keen interest in the outdoors, including fishing; b) Alexander is easy-going and will follow wherever his brother leads; c) the two boys are close and enjoy a warm and positive relationship; d) the mother raised the two boys and has done an excellent job; e) the father has always wanted a meaningful relationship with both of his sons; f) the mother’s concerns include the father’s house not being childproofed, such as his wood stoves which are accessible to the children, whether his children car seats are not tethered property, his lack of knowledge as to the children’s routine, his limited coping skills, his lack of a safety plan and appreciation of the risks of his home’s riverside location and pond adjacent to his home and when he takes the children boating or camping; g) Andrew has a very clear bond with his father, would like to sleep at his father’s home and became distressed at the idea that it was time to leave the father’s home; h) Alexander willingly departed from his mother to visit with his father, which is an improvement since the first report; i) the father was very attentive and remained in close proximity to Alexander in his home and during their time at the park; j) the social worker at no time had any reason to be concerned about the father’s ability to supervise his son; k) the two wood stoves in the father’s home each require a safety barrier or fencing to prevent the obvious risk to the children; l) the mother’s concern is that the car seat may be addressed by the father attending the Early Years Centre to have it inspected and determined adequate; m) Ms. Lavery disagreed with the father’s proposal that the boys at his home would sleep in separate bedrooms on the main floor while he slept upstairs. She strongly recommended that the two boys share a bedroom and that he sleep in the second bedroom on the same floor or alternatively that the two boys sleep in his upstairs bedroom while he sleeps downstairs close to the house entrances to ensure no child leaves the home without his knowledge; n) the father should be permitted overnight access with Andrew, was capable of supervising both boys at the same time and did not require his access to be supervised; o) the father was agreeable to continue to see Alexander at the Early Years Centre while moving towards increased access to full days with this child by the end of June at the latest and then overnight access; p) there was no need for the mother to be present as is occurring during the father’s access at the Early Years Centre; and q) the father should advise the mother in advance and confirm his arrivals and departures for camping trips with his sons.

The Divorce Act

[31] The parties rely upon ss. 16(6), (8) and (10) of the custody and access provisions in the Divorce Act, namely that:

a) the court has jurisdiction to make orders as to custody and access with such terms, conditions and restrictions it determines just; b) in making such an order, the court shall take into consideration only the best interests of the child in reference to the conditions, means, needs and other circumstances of such drugs; and c) as to such determination, the court must give effect to the principle that a child should have as much contact with each spouse as is consistent with the best interests of the child, including consideration of the willingness of the custodial parent to facilitate access to the other parent.

[32] The minutes of settlement provide that the children’s principal residence shall be with the mother and that the father is to have access. The mother is not alleging the father will intentionally harm the children but rather his ability to care for two young children, the risk associated with the use of fire to heat his home in the winter and the presence of adjacent water bodies and boating involving the children.

[33] Surprisingly, the father did not testify as to Ms. Lavery’s recommendation to gate off the wooden stoves until asked by the court, nor as to the car seat inspection or recommended children’s sleeping arrangements at his home. He included a letter of inspection from his office’s Fire Chief which states the car seats are attached as per the seat manufacturer’s instructions. This rather than the inspection recommended demonstrates the father’s rigidity rather than being proactive and resolving simple issues.

[34] Determination and independence are qualities of the father which have served him well over the years in his employment and in gaining financial security. They can be useful qualities in the rearing of children provided they do not result in stubbornness to ignore and not follow recommendations of two experts who have made specific recommendations for the protection of two young children in an environment, the father’s home, which contains elements of risk. For decades, children have been raised in similar environments. That fact does not eliminate the reality of those risks but instead indicates that there are steps parents of young children need to take to reduce or eliminate such risks. The father’s failure since separation to take such steps and develop a plan to address the risks identified are evidence of his stubbornness, notwithstanding his love of his sons.

[35] These boys and their father are fortunate for the love, care and attention the mother has provided. That said, she cannot continue to dictate and minimize future access to the detriment of the children for her benefit as has occurred.

[36] Alexander’s dependency on sleeping with his mother despite now being three years of age, continues and is thereby encouraged by the mother, likely because of her need for the same and must, for Alexander’s benefit, end quickly. The parental encouragement of this dependency at 3 years of age may no longer be utilized by the mother to delay and limit access.

Partial Minutes of Settlement

[37] Upon the commencement of trial, the parties filed two partial minutes of settlement which were incorporated into a final order as to the subjects therein together with the grant on consent of a decree of divorce.

Child Support

[38] One partial minutes of settlement provides that the father shall pay ongoing child support in the amount of $1,216 and $320 per month contributing towards the net daycare costs of the children, pursuant to the Federal Child Support Guidelines, SOR/97-175, a joint release of retroactive child support claims and terms as to life insurance and RESP accounts for the children. These are the terms of the final order granted.

Access Analysis

[39] The second partial minutes of settlement states that the two children shall reside primarily with the mother subject to access as provided therein to the father. The final is to contain these agreed-upon terms. Several corollary points remain to be determined.

[40] Andrew is now 5 years old and attends all-day kindergarten. Alexander, at 3 years of age and attends daycare during the mother’s workday.

[41] The following summarizes some of the terms of access agreed upon:

a) commencing on May 25, 2018, Andrew, every second weekend, is to have overnight access with his father from Friday after school at 4 P.M. until 6 P.M. on Saturday, commencing Friday/Saturday, May 25 and 26, 2018. That will be Andrew’s first overnight access with his father; b) access as to Alexander is to be four hours on Saturday between 2 P.M. and 6 P.M. commencing May 26, 2018, every second weekend, whereupon both boys will return to the care of their mother. Alexander has had very little contact with his father since separation, which each party faults the other for; c) it is agreed that the 4-hour, by-weekly weekend access with Alexander is to increase to 9 hours (9 A.M. – 6 P.M.) on August 12, 2018; and d) the father shall in addition have access to both children each week late Tuesday between 4 P.M. and 6:45 P.M., commencing on Tuesday, May 29, 2018.

[42] What is disputed as to overnight access with the father is:

a) when overnight access with Alexander is to commence; b) when overnight access every second weekend as to each child shall increase to two consecutive nights; and c) whether there should be three consecutive overnights every second weekend with Andrew during the months of July and August, 2018.

[43] The father indicates his current employment limits his days off during the summer to three-day weekends every second weekend plus the potential of occasional additional days off depending upon unknown future weather and fire conditions. He seeks to maximize his access during summer school holidays and the activities he can do with Andrew during the summer.

[44] The father seeks overnight access every second weekend as follows:

a) the first overnight with Andrew being May 25 to 26, 2018, to increase to two overnights commencing June 28, 2018 and then to three overnights on August 9 to 12, 2018, and August 23 to 26, 2018 and then revert back to two overnights every second weekend onward, commencing September 7 to 9, 2018; b) that the four-hour Saturday access with Alexander will increase to 9 hours (9 A.M. to 6 P.M.) commencing August 12, 2018 and then increase to one overnight every second weekend commencing Friday, September 7, 2018 at 4 P.M. until 6 P.M. on Saturday, September 7, 2018, then increase every second weekend to two overnights together with Andrew, namely Friday and Saturday overnights, commencing the weekend of November 30, 2018 and continuing thereafter; and c) a mid-week overnight with Andrew during July and August if the father becomes entitled to a day off work during that period.

[45] The mother emphasizes the young age of these children and the changes they face with increased access, particularly those proposed by the father. She accordingly submits overnight access every second weekend for Andrew be limited to one Friday overnight and not increased to two overnights until September 2018.

[46] The mother submits the father should have access every second weekend with Alexander as follows:

a) access should remain from 4 P.M. to 6 P.M. on Saturdays until August 9, 2018 and thereupon increase to 9 hours between 9 A.M. to 6 P.M. on Sunday; and b) to increase to and remain one overnight commencing at Christmas 2018.

[47] The mother points to the father’s failure to follow the OCL’s recommendation that he have mid-week access visits with the children and attend Andrew’s swimming lessons, which delayed by one or two hours his departure to his home after work.

[48] The mother however remained present during the father’s short access periods at the center used. Her excuse that she had brought snacks, therefore stayed and the children occasionally wandered in the building and “found her” inside the center, evidence her need or unwillingness to be away from the children. Her presence was intended to control and reduce the father’s periods of access.

[49] Any discomfort expressed by Andrew as alleged upon leaving for access includes his knowledge he is leaving his younger brother. In the reports filed, Andrew expresses his wish to spend time with his father. Alexander, it is stated, tends to follow the lead of his older brother.

[50] The mother cannot limit access as she has done and then present the limited time the father has spent with the children to justify further limited access. The mother was content that the father has remained in the shadows of these children’s lives since separation.

[51] The mother submits there should be no additional mid-week overnight access with Andrew during July and August, 2018 if the father receives a day off work, unless she receives unspecified adequate advanced notice and only if she has not already made plans for Andrew for that date. Granting that scope of discretion to the mother given her past restriction of access further empowers her and will not be successful.

[52] The father in testimony referred to Alexander as the “little one” or “younger one”, confirming such habit as noted in one of the expert’s reports. The father in enjoying his time with Andrew and sharing his passion for things like fishing is less comfortable and perhaps does not know what to do with infants beyond short time periods.

[53] Parenting involves learning, being patient and adapting, particularly regarding infants and young children. Children should not be put on hold, denied involvement with a parent because the latter has not taken the time to learn how to properly parent young children and identify their needs and best interests.

[54] The father’s passion for the outdoors needs to be altered to cater to the needs of these two young children when they are present and not be a condition to his role as their father. The father can pursue those interests in full form on his own, and with the children as they become older. The father needs to learn more about and assume his parental responsibilities based on the age and needs of the children.

[55] These two children deserve regular involvement with their father who, with time and under safe conditions, can teach and share his outdoor knowledge and passions with them.

[56] This is a parental separation. It should not become a separation of the children, more than their age and current circumstances necessitate. The two children as much as possible should not be separated and away from the other sibling.

[57] Both children should not spend lengthy time driving to exchange parents during access with their father.

[58] The father’s work commitments are real but they are his own.

[59] The father relates more to Andrew than Alexander currently due to their age difference. That has to change as soon as possible and will only happen when the father assumes his full care responsibilities with the younger child, rather than waiting until the younger child gets older. The change needed is by the father, not the child.

[60] Access in this case involves very young children. This trial occurred on the eve of this summer. The limited access to date cannot, given the very young age of these children, simply be fast forwarded because it has been limited in the past and it is now summertime. The father as stated is partially responsible for the very limited time he has had with the children since separation. The priority remains the children, not the parents.

[61] Changes to regular access must be implemented carefully to allow them to adjust given their young ages. The competing interests to the adjustment time required are that regular access with their father needs to start and the quantity thereof increased. Two overnights every second weekend plus a mid-week visit remains a minimal level of contact.

[62] Balancing the above factors, the court concludes the father’s alternate weekend access, in addition to his Tuesday access from 4 P.M. to 6:45 P.M. which is to continue, are as determined below.

Stage 1 – May 25 to July 25, 2018

[63] From May 25 to July 25, 2018, Andrew will have one overnight from 4 P.M. Friday until Saturday at 6 P.M., on May 25 and June 8, 15, and 30, 2018 which also incorporates the need to switch access weekends as a result of the father’s work schedule.

[64] The length of Stage 1 has been extended to permit Andrew to adjust to this change.

[65] Alexander will have access with his father during this period on Saturday between 2 P.M. and 6 P.M.

[66] The father shall pick up Andrew at 4 P.M. on Friday. The parties will meet at the TD Canada Trust branch on Pembroke St. to exchange Alexander on Saturday at 2 P.M. and again at 6 P.M. that day at the end of that access period.

Stage 2 – July 26 to August 11, 2018

[67] Stage 2 will commence if the father in the interim provides the mother with:

a) evidence as to the gating he has installed around the wood stoves in his home and bush camp cottage to prevent the children’s access to such devices; b) a certificate from an inspector at the Early Years Center confirming that the car seats for the children in his vehicle are appropriately installed; c) his written undertaking to comply immediately with the recommendations of Ms. Lavery as to where he and the children will sleep, as per page 201 of her report including the details thereof; and d) a photograph of the equipment in the bedroom the children will be sleeping in at his home and/or bush camp demonstrating their beds and a baby monitoring device as to Alexander when he commences overnight stays with his father.

[68] Subject to the above, commencing July 26, 2018, Andrew’s access with his father will increase to two consecutive overnights every second weekend and continue thereafter commencing Friday at 1 P.M. until Sunday at 6 P.M.

[69] Alexander’s access during Stag 2 will continue as per Stage 1.

Stage 3 – August 12 to October 4, 2018

[70] Andrew’s access will remain as in Stage 2 above except that it shall commence at 4 P.M. on Friday, September 7, 2018 until 6 P.M. on Sunday, September 9, 2018 and continue at that level thereafter.

[71] Access with Alexander shall increase to 9 hours, between 9 A.M. to 6 P.M. on Sundays, commencing August 9, 2018.

[72] The father shall be responsible to pick up the children after his work on Friday. The parties shall drive and meet at the Pembroke TD Canada Trust on Sunday morning to exchange Alex and again on Sunday at 6 P.M. regarding both boys.

Stage 4 – October 5 to December 13, 2018

[73] Andrew’s access remains as in Stage 3.

[74] Alexander’s access will increase to one overnight, from Friday at 4 P.M. until Saturday at 6 P.M., commencing October 5, 2018.

[75] The father shall be responsible to pick up and drive the children after his work on Friday. The parties shall drive and meet at the Pembroke TD Canada Trust on Saturday as to Alexander and again on Sunday as to Andrew.

Stage 5 - December 14, 2018

[76] Andrew’s access will remain as in Stage 3.

[77] Alexander’s access will increase to two overnights, together with Andrew, from Friday at 4 P.M. until Sunday at 6 P.M., commencing December 14, 2018.

[78] The father shall be responsible to pick up the children after his work of Friday. The parties shall drive to and meet at the Pembroke TD Canada Trust on Sunday.

Stage 6 – Commencing April 1, 2019

[79] If the father is off work, he may have access with both boys Thursday from 5 P.M. to Sunday at 6 P.M. every second weekend starting April 1, 2019 provided he advises the mother in writing 1 week in advance.

Spring Break

[80] The father is to have four consecutive nights of overnight access with both children during the 2019 School March break provided he so advises the mother in writing 2 months prior thereto.

The Mother’s One Week 2018 Summer Holiday with Children

[81] The mother wishes to take one week of holidays during July or August and requests that access to the father be suspended for that as yet unspecified week. She did not respond to my suggestion that she select and communicate the dates of that one week holiday during this trial.

[82] The mother is to select and notify the father by June 30, 2018 of the dates of that week’s holiday with the children and the location thereof. That holiday week must however be during a week other than the father’s regular alternate weekend access with his sons.

[83] Had the father asked for a late summer holiday of 3 to 4 consecutive overnights with Andrew and the daytime thereof with Alexander, rather than 3 days overnight only with Andrew during the summer every second weekend, I would have granted that.

Christmas Eve and Christmas Morning

[84] The parties agree the children will alternate Christmas Eve and Christmas morning between the parents annually. Each party claims this December 24–25 period in 2018 and accept that the other parent will have that right in 2019.

[85] The mother’s request of that in 2018 notwithstanding she has had each Christmas with the children in 2015, 2016 and 2017 is denied for obvious reasons.

[86] The two children shall be with their father from 4 P.M. on December 24 overnight until 6:30 P.M. on December 25, 2018 with that to alternate for 2019 and thereafter.

Corollary Matters

[87] The mother shall now and hereafter provide the father with updated written information as to the children’s eating habits, food and other allergies, sleeping times and patterns, as well as their medical condition, treatments and medical needs. The father shall advise the mother in writing on the same day if either child is sick, injured, allergic, will not sleep or if he sought any medical attention as to the children and the nature thereof.

[88] The children may not be around bodies of water or in boats without wearing an appropriate sized life vest at all times and only if the father remains constantly present and not performing any tasks beyond care of his children.

[89] The father may not take the children to wilderness locations, including his or other bush camps without first advising the mother as to the location thereof, their departure and return times and must then confirm his actual return to his home.

[90] The father must keep all firearms and ammunition locked and unavailable to the children during their access periods.

[91] The parties, as recommended, are required to use Family Wizard to communicate regarding the children.

[92] In the event either parent will be absent/away during a period exceeding three hours of the children’s residence with them, they are required to offer that the children be with the other parent during their absence and divide the driving to Pembroke’s TD location.

Mr. Justice Paul Kane Released: June 22, 2018

COURT FILE NO.: 15-D733 DATE: 2018/06/22 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Steven Kruschenske Applicant – and – Lauren Kruschenske Respondent

ACCESS DECISION

Kane J. Released: June 22, 2018