QUEEN’S BENCH FOR SASKATCHEWAN Date: 2012 07 11 Citation: 2012 SKQB 275 Docket: Div. No. 37 of 2010 Judicial Centre: Swift Current, Family Law Division BETWEEN: SHERRI LYNN KNUTTILA and JACOB JOHN EVERET KNUTTILA Counsel: A. McBride for the petitioner M. Sheppard for the respondent JUDGMENT WILKINSON J. July 11, 2012 1) The parents of two young boys, nine and 11, require framework for parenting. Joint custody is not opposed. The father, Jake, has had primary residence by interim order but that arrangement has been fraught with difficulty for reasons which will be explored. The two households are within blocks of each other and, in an ideal situation, the children could have transitioned easily between homes. This has not occurred and the mother, Sherri, asks that the boys’ principal residence be varied, and awarded to her. 2) The parties met in 2000 when the mother was working in bar in Eatonia. Jake is currently 41 years of age. Little was said of his background other than that he had been in the military for year (1991‑1992), was honourably discharged, and had several years employment thereafter with local farmer. Shortly after the relationship began he found seasonal work with the R.M. of Eatonia. The couple began living together in 2001 and resided in home they rented from Sherri’s mother. 3) Jake and Sherri were married on July 30, 2005 and separated in June or July, 2009. There are two children of the marriage, Jacob Ron Allan Knuttila, born May 25, 2001, now 11, and Johnathan Dwight Knuttila (“Johnny”), born May 14, 2003, now nine. 4) The petitioner, Sherri, is 34 years of age and has four older children of other relationships. They are Damion, 17; Tyler, 16; Seth, 14; and Chelsea, 12. Damion and Tyler’s father lives in Alberta. Seth’s father lives across the street, but is moving to Alberta. Chelsea’s father lives in the Kindersley area. She has amicable parenting relationships with the three individuals who fathered those children. 5) Tyler is the one child in the older sibling group who has encountered difficulties. He has ADHD and difficulty following rules. He has been in trouble at school. He tried living with his biological father, and his maternal grandfather, but both these placements broke down. He may suffer from depression. He has had brushes with the law for alcohol infractions and was involved in break and enter at local store where he stole alcohol. He is on probation. 6) According to the mother, the father is nice person, but lazy and unmotivated. He was dictatorial towards the older children and when she left him list of daily chores to accomplish, he delegated the work to her children. He was preferential in his treatment of Jacob and Johnny, his biological children. 7) She claims he had spotty work history. He was not employed when he moved in with her. After stint doing seasonal work at the R.M. of Eatonia, he moved to seed grain company. When he left that employment, she had to find him work in the maintenance department of the Kindersley Hotel after he had been without work for six months. At the hotel, he worked the night shift from 11:00 p.m to 5:00 a.m., sometimes 6:00 a.m. 8) Jonathan was born on May 14, 2003. In 2001and 2002, the mother worked in tavern at minimum wage, then found work in care home in 2003 or 2004. She started as housekeeper, but achieved the position of head cook, which required her to work long hours from 6:00 in the morning to 6:00 at night. She out‑earned the husband although his hourly wage was higher. She handled all the family finances. She did the housework and the majority of the driving for the children’s activities. 9) All the older children were involved in intramural sports and, in addition, the boys played hockey and/or football. Chelsea was involved in figure skating. All Sherri’s older children did moderately well to well in their academic studies. 10) Sherri says that if the respondent helped at all, it was only with his two biological children. Jake disputes this, and says he coached or assisted all the boys in various sports, played road hockey with them, assisted in the driving, and attended many games. As seasonal worker he enjoyed the summers off (June to mid‑August). 11) The mother gave up and found someone more to her liking in 2009. She asked the respondent to leave the family home. He refused. 12) At or around the time of the marital breakdown, concern was raised with the Ministry of Social Services that the mother was drinking or doing drugs. The source of the complaint is not known. Sherri suspects it was Jake. Jake denies it, although admitting in an affidavit that he went to the RCMP with concerns about Sherri’s parenting. The mother agreed to supply toxin screens and blood and urine samples and entered into s. agreement with the Ministry of Social Services, (between July 27, 2009 and August 31, 2009). Sherri moved to nearby community (La Porte) for six months and stayed with friend. Jacob and Johnny remained in the family home with their father. 13) Sherri said it was false complaint. She has back trouble from work, for which she was taking anti‑inflammatory medication for brief time, but quickly discontinued after it provided no relief. 14) The screens came back negative. No further action was taken by the Ministry. 15) Sometime in November, 2009, Jacob called his mother, crying, and asked her to come and pick them up, complaining that their dad was staying out late and leaving them on their own. Jake’s response was that he was working late on “renovations” at work. Ultimately, it was agreed that Jacob and Johnny would live with Sherri in La Porte while Jake completed the renovations. The boys came to live with their mother from November 18 to December 12, 2009. 16) On November 26, 2009, Jake was in serious motor vehicle accident on his way to work. female occupant in the vehicle was killed. Jake broke his leg and fractured both ankles but was not hospitalized. For short time, he moved in with his elderly mother, resident of Eatonia, who assisted in his care. Two of Jake’s sisters lived in proximity to the mother his older sister, Amy, who runs daycare, and his younger sister Patsy, single mother of two. They were both actively involved in the care of the Jacob and Johnny. 17) Throughout this time frame, friend, Laurie Weaver, had been staying in the family home (and apparently had resided with the family prior to separation as well). 18) During this time frame, Jake was in another motor vehicle accident, this time with the boys in the car. The air bag went off, striking Jacob who was in the passenger seat. Jacob was bleeding in the head and suffered concussion. He was rushed to the hospital and missed several days of school. 19) On or about December 12, 2009, Jake took the boys for sleepover and refused to return them. His explanation was that the children were unhappy living with Sherri, and had expressed fear of their stepbrother, Tyler, saying he had held knife to their throats. He withheld the children from school for week, claiming this was done on the advice child welfare professionals and counsellors, because he was concerned Sherri would snatch the children from school. 20) Sherri’s mother complained that Jake had not paid the rent on the family home and asked that he be evicted. Sherri gave two weeks notice to Jake and another occupant of the home, their mutual friend Mr. Weaver, to vacate by the end of December, 2009. 21) The home was in considerable disrepair and there was mould on the walls. Jake claims he instructed Laurie Weaver to clean up. Sherri and her son Tyler did two weeks of renovations to make it habitable. Sherri moved back into the home with her four older children. She had to pay arrears for water bills that Jake had failed to pay. She paid the arrears of rent ($800) to her mother. 22) Jake moved into mobile home in Eatonia, but was evicted after six months for non‑payment of rent. There was another individual living there as boarder, an individual named Bryce, who was presumably sharing the cost of living. Nothing else was provided about his personal details or background. The Sheriff’s department served Writ of Possession on behalf of the landlord demanding he vacate the premises by July 14. The Sheriff’s department attended on the 14th and found he was in the process of moving out, but had left the premises in dirty and untidy state. 23) After being evicted from the mobile home, he found one-bedroom home in Eatonia. The boys slept on the couch, although later the sleeping accommodations were rearranged so that Jacob would sleep in back room addition, Johnny in the bedroom, and Jake on the couch. 24) Jake returned to work in March, 2010. During his recovery from the accident, he received income replacement benefits of $800 biweekly. 25) Sherri launched petition in May, 2010 seeking custody of Jacob and Johnny, and child support. 26) An interim application was heard in July, 2010. The Court determined that the status quo since December, 2009 had been that the children resided primarily with the respondent father and should remain so. The Court directed pre‑trial settlement conference to be held as soon as possible, ordered interim joint custody, and awarded generous access to the mother, including every Wednesday overnight, alternate weekends (extending to Monday on long weekends), and shared school vacations. The Court directed that the mother would be the caregiver of first resort whenever the father was unable to look after them. Medical and educational information was to be shared. 27) Jake continued to ensure the boys received counselling. Sherri says she was not invited to participate. Jake says that at or around the time of separation, the whole family (other than Damion) had counselling session, and that Chelsea was participating in counselling after that, but Sherri refused to let her continue on once the Court gave him primary residence of Jacob and Johnny. 28) Sherri rarely received her weekly Wednesday access. She complained, and the parties agreed to change the Wednesday access to alternate Sundays from noon to 7:00 p.m. 29) Sherri was not utilized as the caregiver of first resort. When Jake was unable to care for the children they were left with his mother, or his sisters. Jacob and Johnathan were having difficulty in school. Johnathan has ADHD, but his teacher was concerned that his medication was not been administered. Both children needed extra support at home. 30) Jake began working late doing renovations at the Kindersley Hotel bar. Sherri recalled one occasion the boys were with her and Jake called to say he would be late picking them up because he had to change light bulb. Four or five hours later he showed up at her home at 11:00 p.m. at night and insisted on taking the boys home with him in their pajamas. There was “kerfuffle”. Jake’s version is that he called when he was five minutes from Eatonia and she was okay with him picking them up, but then she changed her mind. When he was trying to remove the boys, Jacob wanted to go with his dad and ran to his grandmother’s to call the RCMP. 31) pre‑trial conference was held on December 2, 2010. The parties agreed that until their issues were resolved, Sherri would continue to receive the Child Tax credit for all the children, and pay $300 month of that to Jake. Sherri did so. At the time, the Child Tax Credit and child support paid by the fathers of her older children were her only source of income. Jake does not dispute that was the arrangement. Sherri was concerned he used the money to buy liquor. She saw Jake in tavern shortly after she gave him cheque. He says it was only one drink with friend. 32) The only other outcome of the pre‑trial conference was an agreement to pursue mediation. Mediation never occurred, purportedly because Jake was unable to afford it. There is no reason why this should be. He was employed full time, and receiving $300 month from Sherri. Furthermore, from January to March 2011, Jake had additional income. He took on extra weekend work providing security in the Kindersley Hotel Bar. He had an arrangement with his employer to leave the children in room at the hotel while he worked. The hotel provided caregiver. Jake testified he was making significant overtime so significant, in fact, that the new general manager of the hotel ended the arrangement in March because he did not like the amount that was being paid. 33) conclude Jake had no intention of pursuing mediation. In February and March, 2011 the parents completed the Parent Education Program. It seems that parent education did not inspire Jake to adopt spirit of compromise. 34) Not long after, an issue arose over the Child Tax benefits. Although Sherri had paid Jake the $300 month as agreed at pre‑trial, review by the Child Tax benefit authorities reached the conclusion that Sherri was not entitled to the Child Tax benefits and had been overpaid. Sherri testified the amount of the overpayment she is being asked to repay is about $19,000. Her ongoing benefits have been reduced from $1,600 month to $500 month. It was severe blow to her family’s finances, as the Child Tax benefits and employment supplement were the only source of income Sherri had, apart from child support relating to the older children. 35) In May 2011, she learned (via letter from Jakes’ legal counsel) that Jake’s accountant had inadvertently checked the box claiming the two children as resident with him. The indication to her was that this could be corrected by the two of them signing form consenting to their arrangement as made at pre‑trial and Jake would arrange to do so. Sherri thus continued to provide the $300 payment to Jake. She was also advised that Jake was making arrangements to pay his share of the deposit to the mediator so that mediation could proceed. For whatever reason, none of these assurances were carried through to completion, and have grave doubts Jake ever intended to do so. 36) The most recent information available (June 20, 2012 Child Tax Benefit Notice to Jake Knuttila) indicates that Jake is not eligible for the child tax benefits as he does not meet citizenship requirements. Jake is, again, completely bewildered by this advice and can provide no explanation. The letter, on its face, seems to indicate he is not Canadian citizen. 37) The parties acknowledge there is little the Court can do with this confusing situation. All that can be said is that from the Court’s perspective, and in respect of the Child Tax benefits for 2009, 2010 and 2011, Jake has received everything he was entitled to receive under the agreement reached at pre‑trial conference. Sherri has met her obligations under that agreement by payment of $300 month. 38) In June, 2011, Jake and the boys moved into his mother’s three-bedroom home, which was under renovation. Jake says he was given the opportunity to rent‑to‑own. The arrangement was that his rent would go towards renovations to the home. The purchase price will be determined through discussions with his sisters. It is beneficial arrangement for him financially. 39) The pre‑trial settlement conference reconvened on October 6, 2011. Jake was self‑represented, having failed to contact or instruct his lawyer who withdrew shortly beforehand for that reason. No settlement was reached and the matter was set for trial in February, 2012. divorce judgment was granted, uncontested. 40) On November 27, 2011, Jake was involved in another serious motor vehicle accident. He broke his leg, foot and both wrists. He was hospitalized until January 20, 2012. The boys lived with Sherri for roughly month. 41) Jake requested an adjournment of the trial. To accommodate an earlier date, the matter was moved to Saskatoon to be heard on June 25 and 26, 2012. What he did not disclose until the course of this trial is that arising from that accident he was charged with impaired driving causing bodily harm, dangerous driving causing bodily harm, and driving over “.08”. He was ticketed for driving without licence and driving without due care and attention. 42) After numerous adjournments, his matters are set for plea on July 3, 2012. He intends to plead “not guilty” to all charges. He expects it will be six months or more before he can return to work. He had appealed the issue of income replacement benefits and was recently notified he will receive those benefits from SGI based on 90% of his income ($30,213 being the income utilized). Accordingly, he will receive $836.28 every two weeks from December 4, 2011. He received lump sum payment of $8,041.86 retroactive to December 4, 2011. Prior to that, he had financial assistance from his co‑workers (through fund‑raiser) and social assistance benefits for period of one week. 43) Late in 2011, Jake’s mother moved into assisted living, and her home continues to be under renovation, and occupied by Jake and the two boys. Despite his physical injuries, he is assisting in the renovations, with additional help from friends. There are no boarders at the present time. The legal framework 44) The “best interests” test governs the determination on the issue of primary residence. Although this is Divorce Act, R.S.C. 1985, c. (2nd Supp.) application, s. of The Children’s Law Act, 1997, S.S. 1997, c. C-8.2 comprehensively addresses the relevant considerations: In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child. 45) Willingness to facilitate access to the other parent is also an important consideration, one given prominence by explicit recognition under s. 16(10) of the Divorce Act: 16(1) In making an order under this section [for custody or access], 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. [Italics added] 46) The Court is also required to consider the impact upon the child of any change in custodial arrangements: see Haider v. Malach (1999), 1999 CanLII 12363 (SK CA), 177 Sask. R. 285, 48 R.F.L. (4th) 314 (C.A.). 47) Another important consideration, as noted in H.S. v. C.S., 2006 SKCA 45 (CanLII), 27 R.F.L. (6th) 265, leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 253 (QL), is the relationship of the child to the “psychological” parent, the bond between them, and the importance of maintaining stability in that relationship. Parental attributes and credibility 48) Bewilderment characterized much of Jake’s testimony. He claims he did not understand the “first caregiver” requirements in the interim order. He claims he tells the children to see their mother, and was unaware they were not doing so. He denies being in arrears of rent to Sherri’s mother, or falling behind in utility payments with the Town, despite clear evidence to the contrary. The eviction from the mobile home was not his fault, it was because the rent was too high. 49) He is unable to explain how he came to be indebted to Revenue Canada. He blames his incomplete financial disclosure on not knowing how to complete financial statement despite having done one previously. He resiled from an agreement to pursue mediation. He blames some of the problems with missed medication on the child, saying that Johnny must forget to take his pills at times. do know whether his bewilderment is feigned or innate. All know is that the father presents as irresponsible, incapable and, on occasion, deceitful. There are red flags. 50) Jake is negligent in many parenting aspects, offset to some extent by his efforts to communicate with teachers, an area where Sherri suffers in comparison. Still, have considerable doubts about the father’s lifestyle and these are not allayed at all by his recent disclosure of pending criminal charges. Three motor vehicle accidents are disturbing pattern. 51) Of overwhelming concern is his attitude toward fostering access to the mother. He appears indifferent, bordering on disrespectful. He has been deceptive in his dealings, agreeing to mediation but not following through, and agreeing to resolve the Child Tax benefits but failing to do so. He has been less than candid about his lifestyle issues and his pending criminal charges. 52) The father has bounced from home to home. The boys receive minimal direction or discipline. The boys do not bathe daily, sometimes only two times week. Jake’s attitude to homework is offhand. In his opinion, Jacob rarely has homework, and is content to read comics or little books to Johnny. He indicated Johnny only has spelling tests on Friday, and the odd bit of math homework. Jake’s idea of addressing Jacob’s shyness issues are to send him to the store to buy milk and bread, or to have him go and pick up the mail. He says this will make him learn to interact with people. It sounds as dismal on paper as it did when he uttered it in Court. He has no concerns with Jacob’s weight or diet. He says he will grow out of it. 53) There are few rules. Jake is content to let the boys make choices without supervision or follow‑up. He has abdicated a significant chunk of his care‑giving role to his mother and sisters. His unfortunate injuries in the past two years have made him non‑ambulatory and heavily dependent on others. 54) Even when he is working, the boys spend their pre‑school hours at his sister Amy’s daycare. There, they are “helpers” with the younger children. There about four or five youngsters in daycare in the mornings. In total, Amy has upwards of 14 children in her care, all on differing schedules. It is not an atmosphere conducive to learning, or providing the outside educational support the children require. 55) Jacob and Johnny spend considerable time after school with their paternal aunts, Amy and Patsy Knuttila. Before the paternal grandmother moved into assisted living, the boys spent considerable time with her. Although both sisters seem kind‑hearted people, and quite willing to assist their brother, Patsy is openly hostile towards Sherri. Patsy testified there were frequent noisy drinking parties at Sherri’s house, lots of shouting and domestic arguments. This is not borne out by other evidence. 56) Despite serial relationships that suggest some turmoil in Sherri’s history, she was clear and forthright in her testimony. She presents as capable, organized parent who possesses the attention to detail that is considerably lacking on the father’s side. Money is not driving motivation, she says, and child support issues were not primary concern. She has been content with modest amounts from the other fathers and support has never been matter of contention with them. 57) What she wants is her family intact, and structure and stability for her two youngest. The boys have become increasingly distant and disrespectful in the care of their father. She mentioned time when she told Johnny to make his bed and he threatened to call lawyer on her. She believes the father has instilled these attitudes. 58) As compared to Jake, she was more willing to concede her faults, but some tendency to minimize was nonetheless present. Tyler’s adolescent issues seem more concerning than the mother is prepared to acknowledge. The marital breakdown was significant contributor to the children’s difficulties and undoubtedly continues to play role in the children’s attitude toward their mother. She moved rather quickly into another relationship. Children are not easily accepting of such changes. 59) Sherri could not bring herself to admit that she and Damion had written something nice about Jake for their wedding. She suggested, rather oddly, that Damion never wrote letter at all, and that the letter she ostensibly wrote might have been tampered with. She did recall referring to Jake as her “knight in shining armour”. There are sour notes to her personality. 60) As Sherri’s new partner, David has assumed parental role (although he is careful not to encroach, and the children call him “Dave”). It is appropriate to consider his attributes as well. He moved in with Sherri in December, 2011, but spent considerable time in the household before that. He seems pleasant, outgoing individual who has established rapport with the older children. He takes the boys hunting and fishing. Sherri admits that with the cuts in her Child Tax benefits, their family would not have survived without David’s help. David encouraged the children to take on fair share of the household tasks, noticing that Sherri was doing all the work. 61) David says Sherri sometimes get depressed over the situation with Jacob and Johnny and will cry. He acknowledges they drink socially, but do not go overboard. Usually it is couple of beer. He said Sherri does not drink vodka at all (in response to Patsy’s allegation). The older boys do drink, being teenagers, but not at home. They occasionally have friends over, but not too many. There have been no complaints by neighbours. David acknowledges he has had occasional arguments with Tyler. They discipline the children by grounding, or by removing privileges. 62) Tyler sleeps in the living room area of the basement. There are, in addition, three bedrooms in the basement one for Damion, one for Seth and one that Jacob and Johnny share when they are there. David’s relationship with Jacob and Johnny is not as well developed because they are not in their home as much. They rarely bring homework with them on weekends, but Johnny is more inclined to do so than Jacob. David has helped the boys with homework on occasion. David went to the most recent parent‑teacher interviews for all the children, and plans to participate regularly next year. Children’s personalities and emotional needs 63) Jacob is described as big boy for his age, and extremely shy. He has difficulty with public speaking, although this is reducing as he gets older. He is closed off emotionally. His mother has concerns about his diet and his weight. She feels he could be more active. He does not like to discuss his problems, and when he does, he will become emotional and cry. He used to be close to his mother, but has become more reserved in their relationship. He likes to bike and play football. 64) Johnathan is affectionately described by all concerned as outspoken and outgoing. He likes to be the center of attention. He is loud, boisterous, and fond of making siren noises. He is adept at taking things apart and reassembling them. He likes to have his own way and will have temper tantrums and use inappropriate language when denied. At younger age, he was very close to his mother and physically affectionate, liking to snuggle and exchange hugs, but she notes this has changed significantly since the marital breakdown. 65) Johnathan is on Concerta for Attention Deficit Disorder. He has been heard, on occasion, to make statements indicating he will kill himself, or wait for truck to run him over. This is concern to the mother, and she wants to have him assessed again. 66) Both children have academic challenges and have participated in modified, assisted learning programs. Johnathan was held back in kindergarten. They struggle particularly with reading and math. The mother’s complaints are that the father does not cooperate in sharing school information, provides no academic support at home, and that the father’s house lacks rules and structure. 67) There was significant absenteeism from school while in the care of the father in 2009 and 2010 (41 days for Jacob, 31.5 for Jonathan). Some, but not all, of Jacob’s missed days are explained by adenoid surgery, surgery to install tubes in his ears, and the concussion in the car accident. Both boys also missed some school for counselling sessions, and the full week when Jake decided to withhold them from school for fear that Sherri would come and take them. 68) The mother has never been provided copies of the individualized Student Plan for each child. By the same token, she has never asked for them. 69) The father has been inconsistent with Johnathan’s medications and as times has failed to administer them. His sister, who cared for the boys prior to school, confirmed that the father forgot to renew the prescription on one occasion, and Jonathan went two or three days without his prescribed medication. According to one teacher’s comments, Jonathan was off his medication three times during the school year, for month or more. Jake claims it was only the one occasion that was his fault, when he forgot to renew the prescription. He suggests that perhaps Johnny forgets to take them in the morning. 70) Johnny’s “little books”, which he is allowed to take home from school went missing at one point. The parents blame each other. 71) While Johnny was living with Sherri late in 2011 (after Jake’s November, 2011 motor vehicle accident), she made point of working with him on his spelling tests. They made game of it. He got 100% in five consecutive tests. Johnny was very proud of his achievements. She denies she was trying to make herself look good for the forthcoming trial. She notes that during the month in 2009 when the boys were briefly in her primary care, there were no adverse comments from the teachers in their school journals. 72) In his father’s care, the results are more uneven. Some spelling tests are good, some are inadequate. The number of spelling words in each unit were cut back during the school year, once the teacher realized that Johnny became easily overwhelmed when there were too many at time. Some of his poor results are before the units were cut back. Johnny is slowly progressing. There is no evidence either the father or mother are avid readers. The father’s reading of exhibits in Court was illustrative of the point. If the parents cannot model the behaviour, the children are unlikely to approach it with enthusiasm. 73) Jake has been the primary contact for the school. He attends all the parent‑teacher interviews. Sherri has been uninvolved, for the most part, until very recently. 74) The mother is joint custodial parent. She has, by interim order, unimpeded access to school and medical information. She explained her lack of involvement as unwillingness to attend parent‑teacher interviews in the presence of the father, despite there being no concerns about violence or domestic abuse. She asked that the school set up separate interviews for her. For the better part of three years nothing was done. The school was unable to accommodate her request until fairly recently. Accordingly, she has been “left out of the loop” as she terms it. She acknowledged she should have taken more initiative or simply attended the interviews with Jake, notwithstanding the discomfort. 75) She says she does read with the boys in her home but says her time with the children is insufficient to do anything meaningful in terms of their academic progress. 76) Johnny’s teacher was expecting Sherri to attend with Jake and discuss his 2012/2013 program plan. Sherri planned to attend but fell sick. She did not notify Johnny’s teacher she was not going to be there. am sure that was annoying to everyone concerned. Sherri says it was her understanding that the teacher would call her afterward with the results of the discussion, if she was unable to attend. Sherri seems to have the notion the teachers should be available at her convenience. Jake has been the primary contact with the school. 77) am of the view the mother could have attempted to do far more if she was truly concerned on the academic front. Her preference was to take hands‑off approach and focus her attention on criticizing the father’s efforts. Notwithstanding the criticisms, there is evidence the children have made some progress, albeit not in leaps and bounds. 78) Amy Knuttila has tried to help the boys with their homework from time to time. Within her busy work day, am sure that assistance is necessarily limited. She is not sure how she came to be named as an outside learning support in the school’s Student Support Plan. She confirms that Johnny is an “outdoor kid,” and that Jacob is hard to interest in reading, other than comic books. 79) The reality is the school is the main provider of the boys’ academic instruction, and the parents have been relatively passive in terms of supplying educational support at home. It is to be expected in circumstances where one parent is restricted to weekend access and the other has been alternately recuperating from serious injuries or spending long hours away from home whether it be for work or other unacknowledged reason. 80) Johnny’s teacher confirms his attitude is much improved and he is trying harder, although he remains below grade level. She stated there were few individual days where she was sure Johnny was off his medications, and those days were not good. She was not the teacher who made the comment that he had been off for months at time. There were also days that he was absent from school, although they were individual not consecutive. She confirmed that Johnny requires great deal of educational support in the home. 81) The most recent report cards in June, 2012 show the trend continues slow but steady improvement with emphasis on the need for additional support at home. Daily routines/home life 82) Both parents have the necessary “brick and mortar” to accommodate the children. Jake notes that at his house the boys have their own rooms, their own TV’s, DVD’s, games and electronic gadgets. Perhaps this is why mediation was deemed unaffordable. When he is working, he is home by 4:00 or 5:00 p.m. and they eat at 6:00 p.m. He says the boys are home by 9:00 p.m. perhaps little later on weekends. He acknowledged they spend significant time in the company of their aunts, before and after school, and on other regular occasions. Jake says he plays football and road hockey with the boys, and they all like to play X‑box. 83) The mother says the boys are often riding around at night on their bicycles, completely unsupervised. She is concerned that the father has moved numerous times since separation, and the fact that has been evicted in the past. She feels the present house which is undergoing renovation, is still in considerable disrepair. 84) The mother concentrates on fun activities during their limited family time with Jacob and Johnny. They go camping and fishing and building bows and arrows. She claims to have structure and routine in her home. She has only moved twice since separation, once to La Porte, then the move back to the family home. Her family eats sit‑down meal at 5:00 p.m. At her house, bedtime is 8:00 p.m. for Jacob and Johnny. They share room in the basement. The boys are permitted to watch movie until 9:30 p.m. 85) Jake says that due to the medication, Johnny has no appetite at lunch, although he eats good breakfast. By 8:00 a.m. he can be very hungry, and eat large amount. In his view, Jake should be fed when he is hungry, not at designated times. Other significant relationships 86) By all accounts, the boys have close and affectionate relationship with Seth and Chelsea, the two younger children in the other sibling group. These are important relationships to maintain. Both Seth and Chelsea appear to be caring older siblings who have taken their own initiative to keep in contact with Jacob and Johnny. They are to be commended. They have set far better example than the adults. 87) Jacob and Johnny have close ties to their paternal aunts, Amy and Patsy, and their paternal grandmother. These, too are very meaningful relationships and warrant respect. Sherri got along well with the paternal grandmother. Their relationship does not seem to have been strained by the events of the last few years. Amy and Sherri’s relationship appears aloof, but courteous. 88) Patsy and Sherri are different matter. Patsy testified that Chelsea and Seth used to visit her home regularly, but Sherri banned them from doing so after the interim Court order was made. She became emotional when relaying this. do not know if this has any basis in fact. Sherri did not comment. The animosity, for whatever reason, is unfortunate. Despite Jacob’s shyness, Patsy is someone he relates too, and she could very well be instrumental in bringing him out of his shell. Patsy and Sherri need to mend fences for Jacob’s sake. Children’s preferences 89) Jake wanted his 11-year-old son to testify at trial. denied that application. It was made at the outset of trial before had any evidence as to the child’s reasoning capacity, or his level of maturity or judgment. Having the benefit of all the evidence, remained satisfied that the application was properly dismissed. Jacob would not have borne up well under the stress. He lacks confidence and has had difficulty in the past speaking out in class. He struggles to verbalize his thoughts and emotions. To expect him to bear witness in open Court on the matter of his parent’s dispute, even if only to articulate his preferences, demonstrates remarkable lack of judgment on the father’s part. 90) The evidence that do have suggests that Jacob’s wish is to remain with his father. He has told his mother as much, and has asked her to stop fighting for him. He has made comments in similar vein to his paternal aunts. do not doubt his strong attachment to his father. Jake, for his own selfish reasons, has been the prominent parental figure in Jacob’s life for the three years since separation. 91) Jacob’s shyness and insecurity has unfortunately been exploited by the father. It is from the father that he derives his sense of safety and feelings of self‑worth. In their mother’s care, Jacob and Johnny are two of six children. They do not feel the same level of importance that they derive from their father’s jealous and monopolizing attention. Jake is unwilling to let go, even when he is not available to the children himself. Hence the inordinate involvement of his mother and sisters, in preference to encouraging access to the mother. 92) There are many indications the children’s relationship with their mother has not been fostered in any meaningful way. There are indications they may still have unresolved issues from the marital break‑up and may be consciously or unconsciously blaming their mother. They have had no meaningful opportunity to adjust to her new relationship with David. 93) According to Amy Knutilla, Jacob is always aware when Court proceeding is coming up and asks her questions about it. Jake is, without doubt, responsible for that awareness. 94) Amy Knuttila testified that Johnny’s wish was to live with both his parents (together), but if that was not possible, then he wanted to remain primarily with his dad and Jacob. There was time when he told Amy he would rather wait for car to hit him than go to his mother’s house. 95) Patsy Knuttila testified that she and Jacob are close. Jacob has told her that Sherri and Dave have had fights, and that Sherri and the older boys have fights as well. He has also told her that his mother drinks all day, vodka being mentioned in particular. Jacob says he wants to live with Dad because that where it feels like home. Johnny has told her people are mean to him at mum’s house. She acknowledges that she took it upon herself to question Jacob where he wanted to live. Broaching child in that manner is inappropriate. Patsy is intensely loyal to her brother. Her contact with Sherri is non‑existent. She is not an impartial observer. 96) Jake has let the children’s preferences dominate his parenting decisions. This abdicates the parental role. At the time of separation he said “we, (meaning “he”) decided the children could choose where they wanted to live”. The children were then eight and six years old. Again, this was highly inappropriate. Capable parents encourage their children to understand the concept of sharing. Conclusions 97) am left with the impression do not have the full picture of what is going in either home. The evidence was, at times, perplexing. 98) There are indications the children fear or dislike Tyler, and whether their fears are baseless or not, if it is an issue from their perspective it needs to be addressed. It should not simply be dismissed out of hand, which was Sherri’s attitude. She simply does not believe Tyler would bully the boys, and says he is not like that. 99) Tyler has returned to the mother’s home after his unsuccessful efforts to live with his father and grandfather. He sleeps in the basement where Jacob and Johnny are. It was mentioned that Johnny has asked for night‑light in the mother’s basement because he is afraid of the dark. Sherri did not comment on these issues, and offered no solutions. 100) Sherri could have benefited from some joint counselling with the boys after separation. think she was rather dismissive of the impact of the marital breakdown on the two youngest. The impression left was that it was good for her, and that was what mattered. She has had multiple relationships, and seems to move on relatively easily. She made comment that she thought the boys’ counselling went on little long. From her side, see no willingness to accept shared responsibility for some of the difficulties the boys have encountered since their parents separated. 101) see two conflicted children, who were not adequately prepared for the aftermath of their parent’s divorce. At the present time, it is the father who provides them with sense of security and continuity. He is viewed as the protector. Unfortunately, that sense of security is an illusion. Jake’s lifestyle is mired in chaos and unpredictability. The late nights, the handing‑off of parental responsibility to family members, the financial woes, the frequent moves, the three car accidents in three years, the pending criminal charges all speak to deteriorating situation and to father without firm grip on his life. This spells uncertainty for the boys. Jake seems desperate to hang on to the children at all costs, whether it is in their long‑term best interests or not. 102) To his credit, he recognizes that the parents’ inability to communicate is one of their greatest stumbling blocks, but he has not shown any will or initiative to improve the situation. He was in the driver’s seat and must accept the disproportionate share of blame. 103) There are handicaps and deficiencies on both sides. If the parents were capable of cooperating, the weaknesses in each home could have been offset and balanced. None of the problems that have been raised were insurmountable. The parents simply preferred to pick at the faults of the other and look to Court process for an answer, instead of seeking help and finding practical solutions. 104) The parents live in very close proximity, as do the aunts. No transportation of the children is required. If all the adults had made an effort to get along, the children would have followed suit. One of the puzzling aspects of the situation is that there has been no apparent difficulty when it comes to sharing the boys’ summer holiday time. They go back and forth without issue. Why should it be so fundamentally different during the school term? 105) Although Sherri does not escape criticism, Jake must bear the greater degree of responsibility. He was the one who rejected mediation. The three years it took for this matter to get to trial were his opportunity to demonstrate openness in terms of facilitating access, and fostering relationship between the children and their mother. He has fallen far short of the mark. Unfortunately, in that time he has carefully constructed situation where the boys see him as the devoted parent, the fun parent, the parent with few rules or expectations. He has delayed and obfuscated in the hope of gaining the upper hand. 106) The difficulty lies in how the children would adapt to change in their parenting arrangement. Jacob will not accept any changes willingly or easily he is fully aligned with his father. Johnny will perhaps adapt more readily, but having his own way with his dad for three years will also make any transition difficult. It is their clinging dependence on their father, one he has unhealthily cultivated, that prevents the boys from moving forward to balanced and respectful relationship with both parents. 107) Jake has given little thought to the fact that he may be preoccupied in coming months with defending his criminal charges, or to the repercussions for the boys should he be found guilty. There needs to be another fully involved parent in the event that Jake’s problems continue to spiral out of control. 108) There is no ideal solution, but giving the mother primary residence will predictably bring its own set of problems unless the boys are psychologically prepared, and fully accepting of the change. Nothing is gained by creating boomerang children, and in this situation it would be all too easy to run to the father, or the aunts, every time the boys perceive problem with their mother’s household. 109) It is my decision that the parents must use this summer to prepare themselves for a shared parenting relationship, one where the boys will alternate week to week in each home once school starts. The parents must participate in at least four mediation sessions with a family mediator to learn an acceptable way of communicating on children’s issues. Repairing their parenting problems is more important than repairing houses, or whatever other plans were made for the summer. Particular attention must be paid to the boys’ perceived problems with the mother’s home. Sherri and Jake must formulate plan to present the new parenting arrangement to the boys as joint arrangement that will be fully respected by both parents. 110) If the parents cannot agree on mediator by July 31, 2012, they are to provide two names each and the Court will make the necessary designation. 111) The costs of mediation will be borne by Jake. Order 112) The parents will have joint custody of Jacob Ron Allan Knuttila, born May 25, 2001 and Johnathan Dwight Knuttila, born May 14, 2003. The parents shall participate in a minimum of four sessions with a family mediator. The selection of the mediator is to be agreed upon by July 15, 2012 otherwise designation will be made by the Court. The costs of mediation will be paid by the respondent. 113) Commencing September 1, 2012, there will be a shared parenting arrangement whereby the boys will alternate week to week between homes. Exchanges will occur every Friday at 6:00 p.m. Within the regular rotation, the following exceptions will apply: (1) The children will be with the respondent on Father’s Day, and with the petitioner on Mother’s Day (from 9:00 a.m. to 6:00 p.m. on each date). (2) For Christmas Day, the parent who does not have the children according to the regular schedule, will have access from noon until 6:00 p.m. (3) The Easter vacation and February break will be divided in half, and shared equally. (4) If the parents are able to agree to more acceptable schedule in mediation they are free to do so, but must apply back to the Court to vary the current order. 114) The parents indicated they were dividing the summer of 2012 equally, and did not anticipate any difficulties on that score. In the interests of completeness, there will be an order that the summer holidays are to be shared equally between the parents. 115) With respect to child support on shared parenting arrangement, have utilized the Childview program [ChildView, Version 2012.1.0, by Evan K. Chan Barry R. Gardiner]. The father’s income is $21,736 (non‑taxable). The mother’s is $7,688 (employment supplement/social assistance). The father will pay child support of $324 a month for two shared children commencing July 1, 2012, and continuing on the 1st day of each month thereafter, until further order, or until the children cease to be children within the meaning of the Divorce Act. The parties will exchange income tax returns by May 31st in each year. Each will notify the other within 30 days in the event of any change in their employment status or sources of income. 116) There will be no order as to costs. J. Y. Wilkinson
The parties agree that joint custody is appropriate, but the petitioner mother asked that the principal residence of the two boys be varied and awarded to her. The parties live blocks from each other, but the transition between homes has not gone well. The children have been primarily residing with the father. The father has been in three motor vehicle accidents within three years and is facing criminal charges as a result of the most recent one. The father works long hours as a maintenance man. The mother has four other children from previous relationships. The children of the marriage indicate that they have some problems with one step brother, who lives in their mother's home. The children's academic performance is not strong and the parents have made little effort to assist their children in pursuing an education. One child has been non- compliant with his ADHD medication while in the father's care. While the mother has a more stable residence, both parties have bounced from home to home. The father has tended to abdicate parenting responsibilities to his relatives and has not used the mother as a caregiver of first resort. The mother's relationship with her children has not been fostered in a meaningful way. HELD: While there is no ideal solution, the Court ordered a shared parenting arrangement where the children would spend one week in each home when school started in the fall. The parents were required to participate in mediation sessions which were to be paid for by the father. Joint custody was ordered. The father was ordered to pay child support in accordance with the Guidelines.