QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB 352 Date: 2015 11 05 Docket: DIV 361/2015 Judicial Centre: Regina BETWEEN: BYRON GRANT BABICH and ERINN MARIA BABICH Counsel: James J. Vogel for the petitioner Ronald J. Miller for the respondent JUDGMENT MEGAW J. November 5, 2015 [1] There are total of five applications before the court in this matter. The two substantive applications have number of parts to them. For ease of review, am going to refer to the part of each application when making my decision on that discrete issue. The parts of the various applications are as follows:1. Application for Divorce – brought by the petitioner;2. To register the child, Jude Babich, in a Montessori School – brought by the petitioner;3. To take the child, Jude Babich, to a speech therapist – brought by the petitioner;4. To vary the existing parenting arrangements set forth in the decision of Megaw J. dated January 20, 2015 – brought by the petitioner;5. To set the arrears of child and spousal support – brought by the respondent;6. To return the 2005 Volkswagen Beetle vehicle – brought by the respondent;7. Objections to the petitioner’s affidavit of September 28, 2015 – brought by the respondent;8. Objections to the petitioner’s affidavit of October 16, 2015 – brought by the respondent. [2] In addition to all of the foregoing applications, there was discussion at the chambers appearance of whether this matter should proceed on to the high conflict mediation program through direction by the court. That issue was raised by counsel for the petitioner and was not disagreed to by counsel for the respondent. However, counsel for the respondent had not had an opportunity to speak to his client and obtain instructions with respect to that matter. [3] It is apparent these parties are in some conflict at this stage. There was some discussion at the hearing of this matter of certain misrepresentations made by one party or the other. The affidavit material contains areas of conflict. [4] This is an interim application. find that to make the decisions necessary on the applications before me, am not required to make any determinations on either the creditability of the parties or on any allegations of misrepresentation having been made. Rather, the facts of this matter, at this stage, speak for themselves and allow for decisions to be made on the various issues. [5] There is more important reason to refrain from making these types of determinations at this stage. In my view, to make any findings of credibility or misrepresentation at this early stage of the proceedings, is not in the best interests of either the parties or the children. The parents have many years of parenting ahead of them. They both obviously love and cherish their children. To seek to have either of them reflected badly in the eyes of the court, or the public, is something that is neither necessary nor desirable. It is hoped they will each take the court’s reluctance in this regard to heart and attempt to move forward with their parenting, concentrating only on the best interests of their children, recognizing always that it takes both parents to carry through on those best interests. [6] In the event the matter proceeds to trial it may be these evidentiary assessments will need to be made. However, now is not the time. [7] The background facts are set out in detail in my initial decision of January 20, 2015 (2015 SQKB 22). am not going to repeat those facts here. am going to attempt to put those facts into context and to highlight those things which have changed or developed over the course of the last year and which are relevant to the applications now before me. [8] At the time the first application was argued, the respondent was five days removed from having given birth to the third child, Roman. As result of that circumstance, matters involving the children and the petitioner’s parenting were very much in flux. It was my view then, and remains my view, to have then ordered an in depth parenting arrangement with shared obligations ignored the realities of the situation facing both of the parties at that time. [9] As well, at the time of the initial application, the respondent indicated she was, and planned to continue to be, stay at home mom. This was necessarily so based on her history while married to the petitioner. It was also necessarily so based on the fact she had mere days previously given birth. It was expected she would be staying home with the new baby for period of time. It was understood there would be recovery and adjustment period as she dealt with the fact there was new born and the two older, but still infant children, needing time to adjust to everything that was happening with this family. [10] Yet further, at the time of the original order, the respondent was going to remain in the family home and the petitioner was going to live at the lake cottage some distance out of the city of Moose Jaw. The family home was very short distance from the public school and the Montessori program, in which the oldest child had been enrolled and the middle child, Jude, was going to be enrolled. [11] It was expected the petitioner would be able to return to live in the new house once construction had been completed. Shortly before their separation, the parties had commenced construction on new residence in Moose Jaw. The parties’ separation had caused that home to be in state of uncertainty. Construction had not been completed. The home was over budget and there were concerns expressed about their ability to complete construction at any time in the near future. [12] It is now fact the new home has been completed and the petitioner has moved into the home within the last few weeks. The new home is few blocks from the family home. As importantly, the new home is within close proximity to both the public school and the Montessori program. [13] At the risk of stating the obvious, the new baby, Roman, is now just about one year old and the petitioner has been having increased parenting time with him. The material indicates Roman is still being breast-fed. However, there is no indication he has any particular special needs. He is, by all accounts, healthy, happy boy and both parties are parenting him in an appropriate fashion. [14] The parties, through their counsel, are making strides to have this matter proceed through to an ultimate resolution. Appraisals have been arranged, and perhaps received, with respect to the farm land. Those appraisals will then need be referred to an accountant to allow for valuations, tax considerations, and available funding to be commented upon. At the hearing of this matter, it was indicated by both counsel, the case was still some distance from being in position to proceed to settlement pre-trial, much less trial. [15] When the case does go to pre-trial, am advised all issues, both property and parenting, will continue to be before the court. In the event there is no resolution, all of those issues will then be the subject of trial. That is to say, the primary residence of the children and parenting remain ultimate issues as between the parties. However, on the applications now before me, primary residence for the children is not the subject of inquiry. [16] The family property aspect of this matter is complicated. It is complicated by the size of the operation; by the dollar amounts that flow through the operation; by the intertwining of various corporate and personal operations; and, by the petitioner’s original suggestion the operation was in financial difficulty. All of these complications lend support to the suggestion this matter is not ready to proceed to pre-trial, at this stage, and will require considerably more work to allow it to be put in that position. It was submitted in argument by both counsel, pre-trial conference is several months away. Even that loose time frame cannot be viewed as entirely accurate because it is dependent on the availability of various experts to prepare timely reports. [17] On the parenting issue, the parties have agreed to have custody and access report prepared by Dr. Gregory Stevens. It is understood the petitioner will be paying for this report at first instance. Dr. Stevens has been retained and has agreed to complete the assessment. However, he has not yet been provided with all of the material he requires to complete the task. It was indicated in chambers he should have that material shortly. It will then take him some time to complete his report. It is not known how long this will take. [18] Against this factual backdrop and update, now turn to consider the various issues. 1. Application for Divorce – brought by the petitioner. [19] The petitioner applies for judgment for divorce. The parties have been separate and apart for in excess of one year. The statutory requirements pursuant to the Divorce Act, RSC 1985, (2d Supp) for the granting of the divorce are present. The necessary affidavit material has been placed on the court file. [20] The respondent originally opposed the divorce being granted on the basis the petitioner was in arrears of both his child and spousal support payments. [21] The respondent’s original position is not ground for holding up the divorce. Pursuant to s. 11 of the Divorce Act the court is required to ensure adequate arrangements are made for the care of the children. Those adequate arrangements with respect to support are contained in my initial judgment of January 20, 2015. The fact the petitioner is alleged to be in arrears of that support is matter for enforcement and further argument. It is noted the petitioner denies he is in arrears and accordingly, decision on that issue will have to await pre-trial and trial. [22] At the hearing of this application, counsel for the respondent raised further possible reason to delay the implementation of the divorce. He queried whether there would be any adverse tax consequences to divorce being granted in light of the state of the family property as between the parties. There was no indication of what that difficulty might be. Rather, there was simply suggestion there may be some issues. [23] The petitioner seeks to have his divorce in order that he may continue to move forward with his life. He is in new dating relationship. While that relationship is not the reason for the divorce application, it further supports the petitioner’s seeking of divorce. [24] In the circumstances before me, I can see no reason for the denial of the divorce at this stage. Accordingly, the judgment for divorce is granted. The judgment will become effective 31 days from the date of this decision. 2. To register the child, Jude Babich, in a Montessori School – brought by the petitioner. [25] The petitioner, in his materials, indicates Jude is somewhat delayed both in his speech and other development. It is suggested this delay is as result of his lack of interaction with other children his age. [26] The respondent does not disagree with Jude attending the Montessori program in Moose Jaw. However, she was of the view the fact Jude is not yet fully potty trained was an impediment to him attending the school. She indicates it was her intention to have Jude commence the program in January 2016 when he would, hopefully, be fully potty trained. [27] The petitioner has consulted with the Montessori staff and been advised Jude’s ongoing potty training is not an issue for him to be now enrolled in the Montessori program. Despite indications the respondent had paid this enrollment, the petitioner indicates he in fact has made the payments. Presumably, these payments were made in order that Jude’s place in the school could be preserved. [28] Both parents agree the Montessori program is appropriate for Jude and will be of assistance in his development. On the basis of the evidence before me, it is therefore appropriate Jude now be enrolled in the Montessori program. Both of the parties are able to transport him to the program. The evidence indicates it would be beneficial to Jude to have the interaction and the development that the Montessori program provides. The evidence further indicates his lack of full time potty training is not prohibitive to him being enrolled in the program. [29] This item is one of those things that arose during the course of an action and following an interim order being made. Not all matters involving the children can be reasonably anticipated at the time an initial interim order is made. Accordingly, decision on this matter is required now. [30] While the request to register this child in the Montessori program is change, it is not variation of the existing order. Rather, view this as new matter brought by the petitioner and an addition to the existing order. [31] Accordingly, I order Jude may be registered in the Montessori program by the petitioner and begin attending as soon as the program is able to accommodate such attendance. The cost of that program shall be paid, at this stage, by the petitioner. This direction as to cost is without prejudice to any ultimate decision that might be made in that regard at the trial of this action. Hopefully, the parties will be able to agree on who will transport Jude to his Montessori classes. However, in the event they are unable to agree, and the respondent is unable to transport Jude, she shall immediately advise the petitioner and he will then be responsible for getting Jude to the program. 3. To take the child, Jude Babich, to a speech therapist – brought by the petitioner. [32] It appears this issue was resolved prior to the matter coming to chambers. The fact it continued to be argued in chambers is perhaps more reflection of the lack of communication between the parties than any real issue surrounding this part of Jude’s development. [33] The evidence indicates Jude’s speech development is potentially delayed. The petitioner wanted to take Jude to speech therapist in Regina, with which his family had some familiarity. He was prepared to pay the entire cost of the appointment and any treatment. His desire was to avoid the public health system in order that Jude’s treatment might be acted upon more promptly if it proceeded through private stream. [34] In the meantime, the respondent has taken steps to have an appointment booked with speech therapist in Moose Jaw to allow Jude to be assessed and, presumably, speech treatment program to be developed. The rationale for the Moose Jaw appointment is that it allows the respondent to more conveniently have Jude’s treatment attended to. She would not then have to travel to Regina to participate in the assessments, treatment and program. [35] It appears the petitioner does not oppose the respondent’s suggestions. The real concern, likely for both parties, is some assurance the matter be proceeded with and acted upon expediously. As result, direct that this specific issue remain with me. Either party has leave, upon providing two days notice, to have the issue of the speech therapist brought back before me for further argument, if necessary. This argument may proceed either in person or by telephone conference call to be arranged by the Local Registrar. [36] am making this direction simply to ensure the speech therapist issue can be resolved if there are any difficulties experienced with the parties not attending to it promptly or in an appropriate fashion. In light of the direction have made here, there will be no order as to costs with respect to this aspect of the application. will now leave it for the parties to proceed with resolution of this issue. If further court intervention is required, the matter can then be brought back before me with such additional materials as counsel think appropriate in the circumstances. [37] view this issue on the same basis as the previous one. This is new matter which has arisen and upon which decision is required to be made. 4. To vary the existing parenting arrangements set forth in the decision of Megaw J. dated January 20, 2015 – brought by the petitioner. [38] The order of January 20, 2015 was an interim order. It was given at that time to deal with the situation which was then before the court. As indicated, it is important to remember that situation involved newly born infant. The respondent was uncertain as to the plans and the need for nanny. That situation has now developed over the last year such that the respondent has hired full-time nanny and accordingly, her parenting obligations are not full time with the children. As importantly, the youngest child is now one-year-old and has been developing relationship with the respondent and with the petitioner. [39] It is noted the respondent does not necessarily oppose the petitioner having an increased parenting role with all three children. However, she wants to remain in control of that development. [40] When reviewing an interim order, it is incumbent upon the court to remember the threshold test with respect to any changes or variations of that order. In Guenther Guenther (1999), 1999 CanLII 12554 (SK QB), 181 Sask 83 (Sask QB) [Guenther] Laing J. settled the threshold as follows: What this application ignores and there have been others recently, is the consistent case law which states the courts should not vary interim custody arrangements whether legal or de facto in the absence of evidence that the child or children are in some way at risk, or other compelling reason. In Harden v. Harden (1987), 1987 CanLII 4876 (SK CA), 54 Sask. R. 155 (C.A.), Sherstobitoff J.A. on behalf of the Court adopted the statement of Kerans J.A. of the Alberta Court of Appeal in R. v. R. (1983), 1983 ABCA 156 (CanLII), 34 R.F.L. (2d) 277 at p. 284 wherein Kerans J.A. stated: it is at the time of an interim disposition that one should not lightly disturb de facto arrangements: see Cropper v. Cropper (1974), 16 R.F.L. 113 (Ont. C.A.). We should remind ourselves that interim custody is just that: makeshift solution until the correct answer can be discovered. If judge could tell what is best at the outset, there is no need for an interim order. Interim orders are designed to minimize conflict between parents and cause the least harm to the child and determination of the cause. It appears from the foregoing case law, it constitutes an error in principle, and reversible error in law to vary interim custody arrangements pending trial in the absence of evidence of risk to the child. The foregoing case law indicates that once an interim custody arrangement has been in place for some time, whether de facto, by court order, or by agreement of the parties, the non-primary care parent should not apply on an interim basis to vary the arrangement (except where risk to the child exists), but proceed to final order. In this province, that means obtaining pre-trial date for pre-trial conference, and if the matter is not resolved at that stage, proceed to trial where the Court will determine what is in the best interests of the child. [41] This threshold test was then commented on by Sandomirsky J. in Agawa Davis, 2011 SKQB 214 (CanLII), 378 Sask 136 [Agawa] when he stated as follows: 14 However, Guenther must be read with s. of The Children’s Law Act. In particular the court notes ss. 6(3). Here, in ss. 6(3) is clear legislative authority to vary an interim order on any terms and conditions the court considers appropriate, before (emphasis added) the granting of an order under ss. 6(1). 15 The underlying rationale of the Guenther decision and authorities upon which it relies, is quite practical. However, it must be taken in proper chronological context. If the existing interim order is recent and there are no new factors which have arisen since the existing order was made, the effect of which renders the existing order obsolete, then the parties are required to move on to trial or pre-trial. At pre-trial or trial the issues of custody and access may be resolved upon the best evidence, that is given in open court under oath and subject to cross-examination. In open court the trial judge has the opportunity to observe each witness, to listen to the testimony of the witnesses as they testify, to observe the witnesses testifying, and to ask questions where appropriate. On an application to vary presented in affidavit form, the evidence is often conflicted and poorly suited to making such an important decision. 16 The court begins an application to vary by seeking evidence of such material change of facts so as to warrant changing the previous order, whether the previous order was of an interim nature or final order or judgment. The court weighs the same evidence only once. Therefore, absent material change of fact and evidence, variation must be denied. [42] The Saskatchewan Court of Appeal in Napper-Whiting Whiting, 2014 SKCA 33 (CanLII), 433 Sask 235 has endorsed the threshold test set forth in Guenther. [43] am mindful this Court is reluctant to engage upon either review or change to interim parenting arrangements. It has been stated many times, but bears repeating, interim arrangements are intended to be an immediate measure to allow the parties to regularize their parenting arrangements pending final determination by the court. That final determination involves hearing on the evidence and weighing and review of that evidence. At the interim stage, all that is before the court is affidavit material upon which resolutions of disputed fact, credibility or other evidence weighing techniques cannot reasonably be done. [44] However, reluctance to vary or alter interim arrangements should not be seen as an absolute ban by the court. The court must, of course, accept its jurisdictional responsibility to deal with parenting arrangements as they arise. Therefore, as pointed out by Sandomirsky J., all of the circumstances must be reviewed to determine whether an alteration of the interim decision is appropriate at any particular time. Of course, the court is reluctant to interfere in interim arrangements and attempts to tweak them on an ongoing continual basis. As well, the court is reluctant to encourage parties to engage in interim battles rather than simply getting the action on for final determination. [45] But in the words of Laing J., an interim order can be varied if there is evidence of risk to the children or if there is compelling evidence warranting an alteration. There is no suggestion on the material before me that there is any risk to the children. However, thorough review of the factual scenario does reveal compelling evidence, at this stage, to effect variation of the existing interim order. As recognized by Sandomirsky J., if there is compelling evidence of material change, the court may than change what has been in place. [46] note the authorities talk of “compelling evidence” to change interim orders and “material change” to vary final orders. am not certain much stands on this different terminology. Indeed, in Agawa, the court used “material change” on the interim order then under review. [47] Rather than concentrating on semantics, am of the view the court should carefully review the material to determine (in the absence of risk to the child) whether there exists compelling reason to change an interim order. Or, should the matter just proceed through the litigation process. Is the court compelled to change or merely urged to tweak? [48] The interim order here was granted almost one year ago. At the time, parenting arrangements were bit of an unknown. The youngest child was but five days old. The other children were still infants. The respondent indicated she would be the primary parent with the children and no nanny had been hired, at that stage. am aware though of the Court of Appeal direction that the mere passage of time is not sufficient reason to vary an existing order: Wiegers Wiegers, 2008 SKCA (CanLII), 307 Sask 117. [49] The parties are one year removed from the original decision. The matter will not get to pre-trial conference for minimum of several months and perhaps as much or more than year. While the parties are moving diligently towards pre-trial conference, the complicated financial nature of this action prevents pre-trial conference from simply being set in the absence of the expert evidence necessary for assistance. [50] Furthermore, the custody and access report is going to be prepared. While primary residence for the children is not an issue on the application before me, it is an issue generally in this action. The custody and access assessment will presumably assist the court ultimately in determining the primary residence issue and ongoing parenting treatment. In any event, the custody and access assessment will assist the court in determining, ultimately, what the parenting roles should be for each of the parties. [51] As a result of the foregoing, it is not appropriate to have the matter of increasing parenting time proceed to a pre-trial conference, as a stand-alone issue, even an expedited pre-trial conference. There is material that needs to be prepared and the changes sought are not of such momentous occasion they should be avoided simply because they come from an interim order. Rather, it is my view there is compelling evidence before the court warranting the change at this stage with respect to the parenting arrangements. [52] The youngest child, Roman, is now one-year-old. He has been spending increasing time with the petitioner. The respondent, during counsel’s submission, recognized that further time by the petitioner with the child was appropriate and wanted to be the one in control of developing that time. The petitioner seeks to have his parenting time set rather than at the whim of the respondent. [53] There is nothing in the material before me to suggest further time for the youngest child with the petitioner is not in the child’s best interests. Rather, it appears to be accepted such further time is in the child’s best interest. [54] Maximizing the available time between parents is recognized in both the Divorce Act and The Children’s Law Act, 1997, SS 1997, C-8.2 and generally is to be in child’s best interest. Here, the petitioner seeks to have additional time on Wednesdays and Saturdays with the child. He seeks to have the child from Wednesday’s at 1:00 p.m. to 7:30 p.m. and on Saturdays from 11:00 a.m. to 4:00 p.m. [55] This request is reasonable in the circumstances and in the child’s best interests. As result, order the petitioner have parenting time with Roman on this basis. Arrangements will need to be made for the respondent to express her breast milk while the baby is being breast-fed in order that the petitioner will be able to feed the baby while in his care. Leave is granted to either party to have the matter returned to me on two days notice to deal with any further issues in this regard. [56] The petitioner also seeks increased time with the two older children in order that he may get them to their necessary activities and the children can continue to develop their bond with him. There was recognition in the original order the parties would agree on additional time for the children. On the material before me, it does not appear they have been able to agree on this additional time and accordingly, this order will be imposing some additional time. make this determination on the same basis as was done for the youngest child. [57] In the result, am prepared to extend the parenting time the petitioner has with the two oldest children from Friday after school to Monday morning at 8:00 a.m. In addition, he shall have those children from Wednesday after school overnight until Thursday at 8:00 a.m. [58] Concern was raised whether Kruz would get to his hockey practices and games and whether Jude could be enrolled in the learn to skate program. determine it is in the best interests of the children, due to the history with these athletic endeavours, that Jude be enrolled in the learn to skate program. In the event the respondent is unable to transport either of these children to their hockey or learn to skate sessions, she shall forthwith notify the petitioner of her inability. The petitioner shall then be entitled to transport the children to these activities. In the event any difficulty arises with the children getting to their activities, either party has leave to bring the matter back before me on two days notice. [59] have not dealt with the issue of Kruz’ participation in wrestling. This child is enrolled in one activity now. Participation in other activities is not compelling issue now. This will need to await the pre-trial conference. Or, it may be the parties can agree on this due to the child’s apparent affinity for this sport. 5. To set the arrears of child and spousal support – brought by the respondent. [60] The parties submitted materials dealing with the payments that have been made for spousal and child support. The materials were in conflict and it was generally unclear what payments have been made and how these payments should be credited towards support. It is noted the parties agreed, following the initial support order, the petitioner could make certain deductions from the support in order that financial obligations could be paid directly by him. It may be this precise situation is why such arrangements ought to be the exception. [61] The parties are now agreed, as between themselves, the petitioner shall be entitled to deduct from the support payable the amount due for the mortgage on the family home; the loan payment on the Denali vehicle; the license plate cost on the Denali vehicle; the utilities associated with the family home; the property taxes on the family home; the premiums due on all insurance policies; and, the premium due on the house insurance. [62] Where matters stand with respect to who has paid what and what exactly is in arrears is difficult to discern from the affidavit material filed. Both counsel recognized this difficulty during the course of their submissions. It was proposed by the court, and agreed by counsel, the issue of arrears due under the support provisions of my previous order should await further discussion at the pre-trial conference. This would allow the parties to spend some further time checking their figures to ensure appropriate credit is given for payments which have agreed to be paid. It would also allow more complete accounting to be done. Finally, it would allow the parties to deal with the issue of the life insurance and any arrangements which need to be made to cancel or otherwise deal with this item. [63] As a result of this agreement, the issue of arrears of support and enforcement of any arrears from the date of the order to today’s date is to await the conclusion of the pre-trial conference. In the event difficulties develop in the interim, either party is given leave to have the matter returned to me upon providing the other party with two days notice of their intention to continue the argument. have not limited the circumstances under which this matter may be returned to me. This then leaves return available for any issues that may arise under this heading. 6. To return the 2005 Volkswagen Beetle vehicle – brought by the respondent. [64] Prior to the parties’ separation the respondent had owned and operated 2005 Volkswagen Beetle. At the time of the separation it appears this vehicle was left on the farm. The respondent had demanded return of the vehicle. The vehicle was damaged on the farm and may be total loss. There was no insurance on the vehicle. The petitioner arranged to have the vehicle towed to the respondent’s home. Why he took this step is not clear to the court. [65] It appears the foregoing developments all occurred after the various applications had been served and filed. It was agreed by counsel for the respondent there was nothing further for the court to do, at this stage, on the issue of the Volkswagen. It may be that issue continues to be something requiring resolution as the family property issues wend their way to trial. [66] However, at this stage, there is nothing further for the court to do. Accordingly, this issue will be adjourned sine die. Either party shall have leave to have it returned before me upon providing two days notice. There is no present indication this will be required. However, leave it open in this fashion to provide an avenue for the parties to come back to court for, hopefully, quick resolution in the event further discussions are necessary. 7. Objections to the petitioner’s affidavit of September 28, 2015 – brought by the respondent. [67] There were series of complaints with respect to the affidavit material filed by the petitioner. I do not find the complaints to be generally well founded and rule on each concern as follows: Para. This is relevant and speaks directly to the speech therapist; Para. 16 This is not in violation of the Rule with respect to hearsay. The individual is identified; Para. 17 The letter is hearsay but in the circumstances, allow it; Para. 18 This is not hearsay for the same reasons set forth for para. 16; Para. 21 This is statement of fact and allow it; Para. 22 This is not hearsay. It is provided not for the truth of its contents but rather for the fact it was said; Para. 24 Is not in violation of the Rule. The individual is identified on this interim application; Para. 54 This is not speculation or opinion. It is statement of fact; Para. 61 This is hearsay without the proper basis set and accordingly, the portion of the paragraph indicated is struck; Para. 64 This is statement by the respondent and accordingly, allow it; Para. 65 This is not speculation but rather statement of fact. However, the portion dealing with what the teacher said is hearsay and it will be struck; and Para. 71 This is not speculation. It is statement of fact from the petitioner’s perspective. 8. Objections to the petitioner’s affidavit of October 16, 2015 brought by the respondent. [68] With respect to the notice of objection to affidavit evidence of the petitioner’s affidavit sworn October 16, 2015 find as follows: Para. This evidence is provided with respect to the speech therapist issue and is provided after the original affidavit was sworn. It is not new evidence not in reply. The statement was made by the respondent and accordingly, allow it; Para. find this hearsay to be permissible pursuant to the Rule. The individual is identified on this interim application; Para. find this to be opinion and it is struck; Para. 12 This information is provided in response to that raised by the respondent and accordingly, allow it; Para. 13 This information is provided in response to that stated by the respondent and accordingly, allow it. Para. 14 This information is provided in response to that stated by the respondent and accordingly, allow it; Para. 15 This information is provided in response to that stated by the respondent and accordingly, allow it; Para. 17 This information is provided in response to that stated by the respondent and accordingly, allow it; Para. 18 This is provided in explanation for that which precedes it and allow it; Para. 20 This appears to be new evidence not provided in response and it will be struck; Para. 21 This appears to be new evidence not provided in response and it will be struck; Para. 22 While this is technically new evidence it has arisen since the previous affidavit was sworn and is relevant to the matters before me and allow it; Paras. 23, 24 and 25 These are an explanation of what took place on September 29, 2015 and allow them. Para. 31 This is statement of fact and not of opinion, and allow it; Para. 33 These statements are provided in response to the whole speech therapy issue and allow it; Para. 34 This is statement of fact and allow it; Para. 35 This is statement of fact and allow it; Para. 44 This is statement of fact from the petitioner’s perspective and allow it; Para. 45 This is statement of fact from the petitioner’s perspective and allow it; Para. 50 This is new evidence not provided in response and shall be struck; Para. 60 The general tenor of this paragraph is the provision of argument and opinion. It will be struck; Para. 76 This appears to be new evidence not in response to that raised and it will be struck; Paras. 80, 81, 82, 83, 84 and 85 These are matters raised in response to what is going on with Kruz. Accordingly, allow them; Para. 86 This is argument and it will be struck; Para. 87 This is new evidence not in response to that raised and it will be struck; and Para. 88, 89, 90 and 91 These are with respect to the issue of the hockey practice and generally in response to that stated by the respondent and allow it. [69] The petitioner has generally been successful on his applications in this regard. The respondent was somewhat successful on the notice of objection to affidavit evidence [70] In the circumstances, I direct the petitioner shall be entitled to costs in the fixed amount of $1,000.00 with respect to all of the matters brought before the court. This amount is to be paid forthwith and in any event of the cause. The respondent shall be entitled to costs in the amount of $200.00 with respect to both notices of objection to affidavit evidence. This amount shall be paid forthwith and in any event of the cause. e. The respondent shall be able to offset the costs award in her favour against her costs obligation and pay the difference [71] I have determined not to send this matter to the high conflict mediation program. m. do not consider this matter at that stage yet. There are conflict issues and communication problems. It may be the argument of the issues contained in this judgement will move the parties to attempt to bridge these difficulties. It may be decision on these issues will go some distance to resolving the short-term issues. If so, that is in the parties’ best interest. If not, the mediation suggestion may be raised again.
Family Law – Custody and Access – Best Interests of ChildFamily Law – Custody and Access – Interim – VariationFamily Law – DivorceFamily Law – Evidence – AffidavitThe parties were in a high-conflict situation and brought five interim applications with various requests. They had three children, the youngest being born five days before a previous application. At the initial application the respondent mother was living in the family home and the petitioner was living at the family cottage and expected to move into the new home when it was ready. The petitioner did move into the home, which was a few blocks from the family home. The youngest child was almost a year old and the petitioner was having increased parenting time with him. The parties agreed to have a custody and access report prepared. The issues were: 1) divorce; 2) registration of the middle child in Montessori school. The respondent opposed the child attending the school because he was not yet potty trained. The petitioner advised that the school was okay with the child not being potty trained; 3) to take the child to a speech therapist. The parties ended up resolving the issue before chambers; 4) varying the existing parenting arrangements.  There was an interim order from January 2015 made shortly after the third child was born. The respondent had since hired a full-time nanny. The respondent did not necessarily oppose the petitioner spending more time with the youngest child, but she wanted to be the one to control the developing of that time. The petitioner wanted the child Wednesday afternoon to evening and Sunday from 11:00 am to 4:00 pm. He also wanted increased time with the two older children so that he could get them to their necessary activities and so that they could continue to develop their bond with him; 5) arrears of child and spousal support; 6) the respondent’s request to return the 2005 vehicle. The vehicle had been at the parties’ farm and was damaged beyond repair without insurance. The petitioner then towed the vehicle to the respondent’s home; 7) objections to one of the petitioner’s affidavits; and 8) costs. HELD: The issues were decided as follows: 1) the divorce was granted because the parties had been separated in excess of a year and no satisfactory reasons were argued for not allowing it; 2) the court held that it would be appropriate for the child to be enrolled in the Montessori school. The cost of the program was ordered to be paid by the petitioner. The parties were to agree on the child’s transportation to the school and if they could not agree the petitioner would transport him; 3) the court kept the issue under its jurisdiction so that either party could bring the matter back upon two days’ notice; 4) the pre-trial conference was months away and the court did not find it appropriate to have the matter of increased parenting time proceed to a pre-trial conference, as a stand-alone issue. The court found that it was in the best interests of all the children to have further time with the petitioner as he requested. The court also dealt with transportation for the hockey and the middle child’s skating; 5) counsel agreed that the issue of arrears due under the support provisions would await further discussion at the pre-trial conference with either party having leave to bring the matter back on two days’ notice; 6) the matter was adjourned sine die on two days’ notice; 7) the complaints were not generally well-founded; and 8) the petitioner was entitled to costs of $1,000 in any event of the cause. The respondent was entitled to costs of $200 in any event of the cause. The court declined to send the matter to the high-conflict mediation program.