J. IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Ezurike v. Ezurike, 2006 NSSC 73 Date: 20060307 Docket: 1201-59217 (SFHD-36204) Registry: Halifax Between: Christie Chika Ezurike v. Levi Chucks Ezurike Respondent Judge: The Honourable Justice Leslie J. Dellapinna Heard: January 18, 19, February 16 and 21, 2006 in Halifax, Nova Scotia Counsel: Cheryl Arnold counsel for the Petitioner Levi Chucks Ezurike, Self-represented By the Court: [1] This is divorce proceeding. Christie Ezurike (the Petitioner) and Levi Ezurike (the Respondent) were married on October 15, 1986 in Nigeria. They separated on October 18, 2004 after which the Petitioner petitioned for divorce and the Respondent filed Counter-Petition. [2] The parties have four children. At the present time the two older children reside with their mother when they are not attending university and the two younger children live the majority of the time with their father. The parties are unable to agree on the ongoing custodial arrangements with respect to the two younger children. They have also not agreed on the division of their assets and debts or on the issue of child support. It was agreed that the issue of custody would be heard by the Court first with the financial issues deferred to later date. [3] The parties met in Nigeria on October 7, 1986. They were married just over week later in traditional Nigerian ceremony. It was the first marriage for the Petitioner and the second for the Respondent. The Respondent has three children from his first marriage. He is older than the Petitioner by approximately twenty-four years. She was twenty-two on the date of their marriage and he was forty-six. [4] After their marriage the parties moved to Canada where the Respondent had been living for many years. They took up residence together in Nova Scotia. [5] The Respondent was employed with the federal government, first with the Department of Transport and later with the Department Fisheries and Oceans. He also maintained taxi driver’s license and drove cab on part-time basis. He retired from the federal government on February 12, 2004. [6] Less than year after their marriage the parties had the first two of their four children. Nneka Connie Ezurike and Ndidika (Didi) Claudette Ezurike were born September 25, 1987. They were soon followed by Abuchi Justin Okeome Ezurike, who was born May 15, 1990, and Nkemjika (Nkem) Natalie Ezurike, on March 19, 1992. [7] Initially the parties assumed so-called traditional roles in their marriage. The Respondent provided financially for the family and the Petitioner maintained their home and cared for the children. [8] Beginning in 1991 the Petitioner began her studies in Early Childhood Education and worked part-time at daycare in the summer of 1992. She eventually obtained her Bachelor of Arts degree from Mount Saint Vincent University. She studied part-time beginning in 1994. She took one year off from work in 1999 to study full-time. She graduated in 2000. She then obtained her Bachelor of Social Work degree from Dalhousie University, graduating in the spring of 2002. It was her evidence that her husband provided her with little moral, physical or financial assistance during the years that she studied. She claims that he did not help with the care of the children and at times even created additional hurdles by refusing to assist in transporting the children to daycare during the year the Petitioner was studying on full-time basis and refusing to co-sign her student loan application. [9] The Respondent controlled the finances throughout most of the parties’ marriage. When the Petitioner was employed on part-time basis she would hand over her pay cheque to her husband who would then determine how much she needed for groceries and other households expenses. Unless he paid the bills himself he would tell her what was to be paid. When she obtained student loan he insisted on taking those funds too and he then decided how the funds were dispensed. The Petitioner gradually but increasingly resisted the Respondent’s insistence on controlling her income. The Respondent’s inability to accept his wife’s growing desire for independence caused considerable friction in the marriage. [10] The Petitioner began her employment as social worker with the Department of Community Services in July of 2002 and remains in that position. [11] Throughout the marriage the Respondent tried to assert his authority over the Petitioner and the children. The Petitioner claims that at many times she was physically assaulted by her husband and on at least two occasions he was charged as result and on one of those occasions convicted. [12] When it was clear that the marriage was breaking down the parties attended two marriage counselling sessions but they did not continue due in part to the Respondent’s refusal to contribute to the cost. Throughout the Respondent’s presentation of his case, it was evident that he has been and continues to be preoccupied with financial issues. [13] In June 2004 the matrimonial home was destroyed by fire. The family was forced to move. Initially they moved to house supplied by their church but in October of 2004 they were told that they had to find other accommodation. The Respondent instructed his wife to search for suitable apartment. Nothing she found was acceptable to him and eventually he located two bedroom apartment in Dartmouth, Nova Scotia. On the eve of the family’s move to the new apartment the Respondent advised the Petitioner that she was not to move into the new apartment but instead was to secure her own place to live. This came as total surprise her. After sleeping in her vehicle and staying with friend for approximately week she was able to obtain her own apartment in Sackville. Shortly after the Petitioner moved into her own apartment the two older children moved in with her. At first the Respondent refused to allow his daughters to take their beds and other belongings with them but eventually he acquiesced. He refused to allow the Petitioner to take the two younger children with her and did not allow them to contact her. As result the Petitioner applied to the Court for an Order for interim access. [14] On an interim basis the parties agreed that the Petitioner would have the care of the two older children and the Respondent would have the care of the two younger children. The Petitioner testified that she agreed to the interim split care arrangement in order to get the parties and the children through Christmas of 2004 with at least some kind of access arrangement in place knowing that it was only an Interim Order. After hearing it was also ordered that the Petitioner would have the care of the two younger children each week from Monday at the time of their dismissal from school until the following Thursday at the time of the commencement of school. The Respondent continued to have the care of the children the remainder of the week. [15] The Petitioner has applied for the primary care of the two younger children and proposes that the Respondent have access to them every second weekend as well as for reasonable periods of time during the week provided they are home in time to do their homework. The Respondent also seeks primary care. THE DIVORCE [16] find that there has been permanent breakdown of the parties’ marriage. They separated on October 18, 2004 and have not resumed cohabitation as husband and wife since that date. There is no possibility of reconciliation. Divorce Judgement will be issued. specifically retain jurisdiction to make final disposition with respect to all corollary issues and in particular the division of the parties’ assets and debts and with respect to child support and costs. THE PETITIONER’S POSITION [17] The Petitioner argues that throughout the marriage she was the primary parent to all four children and that her husband did little to assist her with the care of the children. Even now, she says, although the two younger children spend more than half of the week with their father, she still buys their clothes, toiletries and other necessities and drives them to many of their sporting events even during those times when they are residing with their father. While in their father’s care, she says, they are often left to provide for themselves including cooking their own meals and doing their own laundry. Although they are fifteen and thirteen, she believes that they should not be left totally unsupervised for lengthy periods of time. She says her husband drives cab frequently during the evenings and weekends and leaves the children entirely by themselves (which he denies). THE RESPONDENT’S POSITION [18] The Respondent believes that the children should remain in his care, especially during the week. Both children are heavily involved in sporting activities, particularly soccer and both stand chance of being selected for the national soccer team for their age group. It is his evidence that for them to make the national team high degree of commitment is expected of them and he is in better position than their mother to ensure their attendance at their various practices and games because he is retired and has no work commitments during the week. Because of the Petitioner’s employment he says she cannot be relied upon to get the children to their practices and games on time. [19] Since the matrimonial home was destroyed in June, 2004, the Respondent has been gradually reconstructing the home. Although not yet complete he and the children are living in the home. He anticipates completing the house in the near future. He argues that the house is what the children consider to be their home and he says it “provides the children with conducive environment and good neighbourhood to grow.” The children have close friends living in the neighbourhood and it is within the district of the high school that they will attend. By contrast, he argues, the Petitioner’s neighbourhood “does not measure up”. He considers it to be unsafe and haven for drug traffickers. [20] The Respondent also argues that the Petitioner has extra-marital “sexual indulgences” which he says create an unhealthy environment for the children. He expressed concern for the kind of moral example their mother is setting for them. He says that he believes the Petitioner’s custody application is financially motivated. He also accuses her of being involved with “Underground Drug Traffickers outside the country” and of belonging to an “occult organization that promises her new life filled with 1,000 joys, love, luck and money.” [21] The Divorce Act, 1985 provides as follows: (1) court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. (4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons. (5) Unless the court orders otherwise, spouse who is granted access to child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child. (6) The court may make an order under this section for definite or indefinite period or until the happening of specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. (7) Without limiting the generality of subsection (6), the court may include in an order under this section term requiring any person who has custody of child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child. (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child. (10) In making an order under this section, the court shall give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [22] In Young v. Young, 1993 CanLII 34 (SCC), [1993] S.C.R. 3, the Supreme Court of Canada, among other things, discussed Section 16 of the Divorce Act and the “best interests” test. At paragraph 17, the Court stated: ... the test is broad. Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access is so diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful. Rather, it has been left to the judge to decide what is in the “best interests of the child”, by reference to the “condition, means, needs and other circumstances” of the child. Nevertheless, the judicial task is not one of pure discretion. By embodying the “best interests” test in legislation and by setting out general factors to be considered, Parliament has established legal test, albeit flexible one. Like all legal tests, it is to be applied according to the evidence in the case, viewed objectively. There is no room for the judge’s personal predilections and prejudices. The judge’s duty is to apply the law. He or she must not do what he or she wants to do but what he or she ought to do.” With respect to Section 16 (10), the Court stated at paragraph 18: ... Section 16(10) provides that in making an order, the court shall give affect “to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. This is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge must consider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact is maximized. The modifying phrase “as is consistent with the best interests of the child” means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may he restricted, but only to that extent.” [23] Goodfellow, J. in Foley v. Foley 1993 CanLII 3400 (NS SC), 1993 CarswellNS 328 attempted to provide list of various factors for the Court to consider in determining what is in child’s best interest. He stated, beginning paragraph 15: In determining the best interests and welfare of child the court must consider all the relevant factors. The diversity that flows from human nature is such that any attempt to compile an exhaustive list of factors that could be relevant is virtually impossible. 16 Nevertheless, there has emerged number of areas of parenting that bear consideration in most cases including in no particular order the following: 1. Statutory direction Divorce Act 16(8) and 16(9), 17(5) and 17(6); 2. Physical environment: 3. Discipline; 4. Role model; 5. Wishes of the children if, at the time of the hearing such are ascertainable and, to the extent they are ascertainable, such wishes are but one factor which may carry great deal of weight in some cases and little, if any, in others. The weight to be attached is to be determined in the context of answering the question with whom would the best interests and welfare of the child be most likely achieved. That question requires the weighing of all the relevant factors and an analysis of the circumstances in which there may have been some indication or, expression by the child of preference; 6. Religious and spiritual guidance; 7. Assistance of experts, such as social workers, psychologists, psychiatrists, etcetera; 8. Time availability of parent for child; 9. The cultural development of child: 10. The physical and character development of the child by such things as participation in sports: 11. The emotional support to assist in child developing self esteem and confidence; 12. The financial contribution to the welfare of child. 13. The support of an extended family, uncles, aunts, grandparents, etcetera; 14. The willingness of parent to facilitate contact with the other parent. This is recognition of the child's entitlement to access to parents and each parent's obligation to promote and encourage access to the other parent. The Divorce Act s. 16(10) and s. 17(9); 15. The interim and long range plan for the welfare of the children. 16. The financial consequences of custody. Frequently the financial reality is the child must remain in the home or, perhaps alternate accommodations provided by member of the extended family. Any other alternative requiring two residence expenses will often adversely and severely impact on the ability to adequately meet the child's reasonable needs; and 17. Any other relevant factors. 17 The duty of the court in any custody application is to consider all of the relevant factors so as to answer the question. 18 With whom would the best interest and welfare of the child be most likely achieved? 19 The weight to be attached to any particular factor would vary from case to case as each factor must be considered in relation to all the other factors that are relevant in particular case. [24] would add to Goodfellow, J.’s fourteenth consideration the willingness of each parent to foster positive relationship between the child and the other parent and, where appropriate, the willingness of each parent to work cooperatively with the other in the raising of the children. [25] In August, 2005 the parties consented to an Order which provided that Abuchi and Nkem would be “referred to an assessor to be assigned by the Supreme Court (Family Division), for the purpose of ascertaining the views of the children....with respect to their living arrangements.” That assessment was conducted by Elizabeth Simms, M.A. who provided report to the Court dated October 15, 2005. Ms. Simms interviewed the children as well as the parties and number of named collaterals. In her report she said “Abuchi impressed me as warm and intelligent person who expressed that he felt exactly the same for both of his parents and had no preference or opinion regarding living arrangements... In general Abuchi appears to be an adjusted, mature teenager who has emotionally disengaged himself from the conflicts between his parents.” Further, “As with her brother, Nkem expressed having no preference in regard to living arrangements. She said that she was glad that the fighting had stopped since the separation of her parents. Also, as with her brother, found Nkem has put her focussed (sic) on her goals with academics and sports which consume most of her time and energy.” Ms. Simms also interviewed the parties’ two older daughters, Didi and Nneka, and said “I found them to be bright and mature. As with their younger siblings, found them to be distant and guarded regarding their parents; they expressed no preference or opinion about living arrangements for their siblings. Both girls were extremely loyal to both parents and gathered that the (sic) would prefer that such decisions be made by the adults concerned.” [26] In her conclusions Ms. Simms stated: “Christie and Levi Ezurike have exercised traditional male and female parenting roles in raising their children these past 17 years. Christie has provided strong emotional bond and the domestic duties of the home. Levi has provided financially and in assisting with transportation, sports and academic support. The four Ezurike children are intelligent, athletic and successful. Throughout the children’s childhood, however, they have subject (sic) to much conflict and stress between their parents..... Despite the conflict which they have witnessed, the four children remain extremely loyal to both parents and refuse to have an opinion of either parent’s motives or actions. believe that the children have not been personally blamed for the conflict and that they hope that the trauma will not escalate if they stay out of their parents’ issues while trying to be as obedient as possible.” [27] Mr. Ezurike served subpoenas on his daughter Didi and son Abuchi and called both as witnesses. Didi was clearly uncomfortable in the role of witness in trial between her parents and appeared guarded in her responses. She did say however that money and bill payments were the main topic of arguments between her mother and father. Abuchi seemed more comfortable than his sister and was very diplomatic. He credited both of his parents approximately equally for driving him to his various activities and for paying expenses relating to those activities. [28] The parties have reason to be proud of their four children. Judging from their evidence, the report of Ms. Simms and what observed of Abuchi and Didi while giving their evidence, all four children are intelligent, well mannered and respectful of their parents. Abuchi and Nnkem in particular, are also very accomplished athletes. Their involvement in school, soccer and other activities keep them busy just about everyday. [29] The Petitioner and Respondent are both accomplished in their own right. Since immigrating to Canada over thirty years ago the Respondent has had successful career in the federal public service from which he is now retired. The Petitioner since coming to Canada approximately 19 years ago has learned to speak English fluently, has obtained two university degrees and now has career as social worker. She has accomplished all of this while raising four children. [30] It is regrettable that it has become necessary for the Court to determine the custodial arrangements for Nnkem and Abuchi. However, there is considerable disagreement between their parents with respect to the children and neither Nnkem nor Abuchi have expressed preference as to where they wish to live. There is little reason to believe that the parties will ever be able to co-parent in spite of the fact that their children are all teenagers. [31] The Petitioner is 41 years old. Generally she works Monday to Friday from approximately 8:15 in the morning to approximately 4:30 in the afternoon. She says that her hours can be flexible. For example, she can work earlier in the day and leave earlier in the afternoon and use overtime to obtain time off work. [32] Presently the Petitioner lives in three bedroom apartment in Lower Sackville approximately ten minutes walking distance from the children’s school. The parties’ two older daughters stay with her in her apartment when they are not attending university in Wolfville. Abuchi and Nnkem are also with her each week from Monday to Thursday. [33] accept her evidence that throughout the lives of the children she has been primarily responsible for their care. She cooked the majority of their meals, purchased their clothes, maintained the family’s home, did the laundry and took the children to most of their appointments. She attended most of the children’s parent-teacher meetings. When she was attending university and the children went to daycare, the majority of the time she transported the children to the daycare even when that involved taking public transit when it could more easily have been done by the Respondent with the family car. [34] The focus of her evidence was on what she felt was best for the children. She believes that the current interim arrangement is difficult on the children. It sometimes causes difficulty with homework when they leave their school books at the other parent’s residence. She is concerned about the children being left unattended for extended periods of time during the weekend particularly during the weekend nights when they are often in bed and their father is not at home. This is particularly troublesome to her given that it appears from the evidence that their father cannot be reached when he is driving his cab because he does not have cell phone or radio in his car. [35] The Petitioner expressed concern about the Respondent’s inappropriate language around the children and how he portrays her to them. find that the Respondent has discussed these divorce proceedings with the children openly, has involved them far too much in the divorce process and speaks disparagingly of their mother in their presence. [36] It is upsetting to the Petitioner as well that the Respondent does not think it is necessary to celebrate the children’s birthdays and does not buy them Christmas gifts. She gave as an example Christmas, 2005 when the Respondent did not buy the children gifts, put up Christmas tree or other decorations or provide them with any kind of Christmas dinner. Prior to the parties’ separation it has been the Petitioner who celebrates such occasions with the children. [37] She says, and believe, that she continues to buy the children’s clothes as well as such items as shaving supplies for Abuchi and other personal items for both children. [38] She believes that the children do not receive proper meals while with their father. Now that the parties are separated it appears that frequently Abuchi and Nnkem prepare their own meals. [39] The Respondent is 65 years of age and retired. He drives taxi from time to time. He was very vague as to when he actually worked as taxi driver but insisted that he never worked during the weekend. The evidence would suggest otherwise. [40] In June of 2005 the Respondent moved with the two younger children back into the matrimonial home. At that time its reconstruction was far from complete. The matrimonial home, according to the parties’ son, is approximately half hour walk from the Petitioner’s apartment. [41] The Respondent’s evidence all too frequently gravitated to what he considered to be his wife’s transgressions and issues relating to money. The Respondent was reminded on numerous occasions by the Court that his evidence and submissions should relate to what he considered to be in the children’s best interests and what custodial arrangements would best suit their needs. In spite of those reminders his evidence and his questions directed to other witnesses continued to stray into the fields of finance and marital fault. When he did speak of the children he rarely if ever spoke of their physical or emotional needs but rather emphasized that they will achieve their full athletic and academic potential only under his guidance. [42] On summation he asked that the Court disregard the conclusions of Ms. Simms in her report. He felt that because of what he considered to be inaccuracies and assumptions made by Ms. Simms and because she conducted interviews of the children at their mother’s home, that her conclusions should be given no weight. He also did not feel that she went far enough in trying to determine the children’s wishes and that her report went beyond the scope of the Court’s order in that she included in her report recommendations regarding the children’s ongoing custody. [43] The Court did not delegate to Ms. Simms the task of determining what is in the children’s best interests. Rather, Ms. Simms was asked to determine the views of the children with respect to their living arrangements and she testified that notwithstanding the wording of the Court’s order, she generally provides the Court with recommendation based on her interviews. Her conclusions and reasons are just one of many factors that the Court takes into account when determining what is in the children’s best interests. find no fault in the way that Ms. Simms conducted her interviews with the children. She felt that with children what is important is to make them as comfortable as possible before soliciting their views. Being at one of their homes provided them with that comfort. She was satisfied that the children’s responses were not in any way influenced by the proximity of their mother and it should be noted that neither of the children expressed any preference to Ms. Simms. [44] After having considered section 16 of the Divorce Act and all of the evidence I have come to the conclusion that it would be in the best interests of the children to be in the custody and primary care of their mother. have come to that conclusion for the following reasons: 1. Until the parties’ separation the Petitioner has been the primary caregiver to the children. It was she who bought their clothes, prepared their meals, cleaned their laundry, took them to their various appointments and cared for them when they were infants and throughout their adolescent years. Even since the parties’ separation she has continued to purchase much of their clothing and personal items. That is not to say that the Respondent has not also purchased such items but not to the extent of the Petitioner. She, much more than the Respondent, is in tune with what the children require. 2. The Petitioner appears to have a stronger emotional bond with the children. In addition to meeting their physical needs, the Petitioner has shown greater concern than has the Respondent for the emotional development of their children. The Respondent seems emotionally distant from his children and seems to lack any appreciation for how his conduct may adversely affect his children emotionally or psychologically. 3. The Respondent has, throughout the parties’ marriage, been physically, emotionally and verbally abusive to the Petitioner and much of this abuse has taken place in front of the children including when they were very young children. He has attempted to control and manipulate his wife through threats and physical violence. The breakdown of their marriage resulted in part from the Respondent’s inability to accept that his wife wanted to have interests outside of the home. Rather than encourage and support his wife in her efforts to obtain an education and career of her own he grew resentful and made it as difficult as he could for her to achieve her goals. While there is no evidence that he has been physically abusive to his children, there is evidence that he has also tried to control them through threats and intimidation. The Respondent had three daughters with his wife from his first marriage. When he suspected his wife of infidelity he abandoned her and his then three infant children (then aged five years, four years and eight months) and thereafter provided his former wife with virtually no financial support or assistance in the raising of the children. He still appears to have little appreciation for just how callous he was to his first family. 4. The Respondent appears incapable or at least unwilling to put the children’s needs before his own. During the course of the trial numerous examples of this were presented. To determine whether he should call either of his older daughters as witnesses, he provided them with printed questionnaire for them to complete. The top of the form read: “Your comments below is (sic) required to help establish the roots of the problems in the family.” At the conclusion of the questionnaire they were to sign the form below the sentence: “I verily believe, to be (sic) best of my ability and knowledge, the above to be statements of the facts as observed them.” He served subpoenas on Didi and Abuchi to require their attendance at the trial. In spite of the Court’s urging not to involve the children he called both of them as witnesses. Even when Didi displayed considerable discomfort, he continued to ask her questions. 5. The Respondent regularly involves the children in adult issues as evidenced by the questionnaire form and his insistence that they testify at the trial. Further, he has shared with the children his belief that their mother belongs to an “underground drug organization” and cult (none of which he could prove). He has also shared with the children his belief that their mother has been having an extra-marital affair. 6. The Petitioner is much more likely than the Respondent to encourage the children to have contact with the other parent. When the parties first separated the Respondent did not allow the two younger children to have contact with their mother. Since then there has been at least two occasions when the Respondent took one of the children on weekend soccer trip and left the other alone rather than invite the Petitioner to have the care of that child. During his evidence he said that his wife was not interested in meeting the children’s needs and during his summation he said that she was too busy with her “selfish, greedy lifestyle” to have custody of the children. In his summation he proposed that if he was granted custody of the children their mother should have access to them only one weekend month. Throughout these proceedings the Petitioner has proposed that the Respondent have reasonable access to the children on alternate weekends as well as during the week provided such access did not interfere with their ability to complete their homework. 7. For all the reasons stated above, the Petitioner would appear to provide better role model for the children than the Respondent. [45] I am aware that whereas the Respondent is retired he might have more time available to spend with the children. That alone however does not outweigh all the other considerations. Both parties have the financial means to contribute to the support of the children and how that obligation will be shared will be determined at later date. CONCLUSION [46] In conclusion, the Petitioner shall have custody and primary care of Abuchi and Nnkem. [47] Notwithstanding the Respondent’s shortcomings, he is the children’s father and can play an important role in their upbringing. He has been enthusiastic in his encouragement of their athletic endeavours and has stressed to them the importance of excelling academically. He will however have to learn how to put the children’s needs before his own and put the differences that he has with his wife behind him. [48] Because he is retired he has time to spend with the children and the Petitioner is open to that possibility. He shall therefore have reasonable access to the children including access to the children every second weekend from Friday after school to the following Sunday at approximately 7:00 p.m.. In addition, he shall have access to the children one weekday evening from after school until approximately 8:00 p.m. on day to be agreed upon by the parties and provided such access does not interfere with their ability to complete their homework assignments. In addition, with the consent of the Petitioner, he may spend additional time with the children in order to ensure their attendance at their various soccer games, practices and tournaments provided such access does not interfere with the Petitioner’s relationship with the children. It is important to the children and their parents too that they continue to excel at soccer. The Respondent can play an important role in ensuring that the children get to all of their practices and games on time by making himself available to drive the children during the week when it might be less convenient for the Petitioner to do so given her possible work related responsibilities. If the children’s success is as important to the Respondent as he would have the Court to believe, he should welcome this opportunity. [49] The parties’ time with the children during the children’s Christmas vacation from school shall be shared approximately equally. If the parties are unable to agree on the specifics of such access am prepared to hear their proposals and make ruling. [50] The Respondent will also have such other access as the parties agree to from time to time. [51] am prepared to hear both parties on the issue of costs after the evidence on all corollary issues has been heard.
Custodial arrangements for the parties two youngest children (aged 15 and 13), who currently lived with the father the majority of the time, were at issue. The marriage had been traditional, with the wife being the primary caretaker of the children. Both children were heavily involved in sporting activities and the father felt that since he was retired, he would be better able to ensure their attendance at various games and practices. The mother, who had recently commenced employment as a social worker, felt that the current interim arrangement was difficult for the children in that they would forget their school books at the other parent's residence and were sometimes left alone for extended periods at the father's residence. Children placed in the custody and primary care of the mother; until the separation, the mother had been the primary caretaker of the children and she appeared to have a stronger emotional bond with them; the father had been physically, emotionally and verbally abusive to the wife throughout the marriage and seemed incapable of putting the children's needs above his own; and the mother was much more likely than the father to encourage the children to have contact with the other parent. Although the father was retired and might have more time to spend with the children, this did not outweigh all of the other factors.