J. D.I.V. A.D. 1997 No. 532 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: SANDRA DAWNE TUBELLO and ADRIANO GIAVONNO TUBELLO RESPONDENT Noel S. Sandomirsky, Q.C. for the petitioner Reginald E. Sauer for the petitioner JUDGMENT McINTYRE J. March 3, 1999 [1] The parties were married July 24, 1993. There are two children of their relationship: Travis Anthony Tubello, born October 6, 1993; Jonathan Stefano Tubello, born May 16, 1995. The petitioner also has child from her first marriage in her care, Greyson Alexander Blaha, born June 17, 1985. The primary issue is the appropriate parenting arrangement for Travis and Jonathan. [2] The parties resided at 2335 Ottawa Street, Regina, Saskatchewan, until their separation August 31, 1997. Upon separation the petitioner obtained accommodation elsewhere. The respondent continues to live in the matrimonial home. [3] It must be noted at the outset that both parties are good parents. Neither had any criticism of substance about the ability of the other to parent the children effectively. [4] During their married life together both parties were involved in the day-to-day care of the children. Apart from maternity leave the petitioner was employed outside of the home throughout the marriage. The respondent was unemployed at various times and during these periods played substantial role in the day-to-day care of the children. The respondent’s parents played significant role in providing child care services during the day, particularly when both parents were working. [5] During the first two months of the separation the children spent alternate weeks with each parent. During the day the children were looked after by their paternal grandparents with the exception of two or three days spent with babysitter. [6] On October 3, 1997, Madam Justice Dawson made the following interim order: IT IS HEREBY ORDERED AND ADJUDGED that the Petitioner and Respondent shall have interim joint custody of the children, TRAVIS ANTHONY TUBELLO and JONATHAN STEFANO TUBELLO. The Petitioner shall however provide the primary residence for the children. IT IS FURTHER ORDERED AND ADJUDGED that the Respondent shall have reasonable access to include alternating weekends from Friday evening until Sunday evening, and in the event that the Respondent is not working on the Friday prior to such weekend or the Monday following such weekend, the access shall extend to include the extra day or days. The Respondent shall further have access on each Friday that is his earned day off that is not attached to his access weekend, except when such Friday is the Petitioner’s earned day off. The Respondent shall also have the children for such earned Friday off from Thursday evening until Friday evening at 6:00 p.m. In addition, the Respondent shall have access to the children one evening per week until 8:00 p.m. The particular day of the week shall be arranged by agreement between the Petitioner and Respondent. IT IS FURTHER ORDERED AND ADJUDGED that the Respondent shall have reasonable telephone access with the children and access at such other times as the parties may agree. The parties shall share the holidays equally the particulars of the dates to be arrived at by agreement between the Petitioner and the Respondent. IT IS FURTHER ORDERED AND ADJUDGED that the paternal grandparents shall care for the two children two days per week to be such days that the child TRAVIS is not in pre-school, except in the event that either parent is caring for the children by reason of day off work. [7] Beginning in November, 1997, the children attended the YWCA Daycare three days per week, spending the remaining two days with their paternal grandparents. At this same time the petitioner became more adamant about following the letter of the access regime set out in the interim order. The respondent kept requesting additional time and the petitioner agreed the respondent could have the children every weekend. [8] When the petitioner advised the respondent she had made plans and wanted to have the children on weekend in December, the respondent agreed but wanted additional mid-week access as compensation. At this point the petitioner insisted upon strict compliance with the terms of the interim order. [9] The interim order required the respondent to pay child support of $424.72 per month together with 52% of the net cost of child care. Initially the respondent failed to pay the child support as ordered. In cross-examination he said he first paid $200.00 per month as he had decided that was what he could afford. He later increased it to $250.00 per month and testified he felt the petitioner could meet the children’s needs with the support he was paying and that the support ordered was not needed for necessities. It was only with the intervention of the Maintenance Enforcement Office that the respondent eventually began paying the full amount ordered. [10] The petitioner testified that when they initially separated they could converse to some degree about matters involving the children. However, communication became strained to the point they could not communicate directly and began communicating through e-mail at work. The petitioner says when they tried talking directly to each other they continually argued as she says the respondent was insistent upon things being done his way. [11] The respondent says the reason they went to e-mail as means of communication was because he was always getting different story from the petitioner. He said he went to e-mail so that he would have it down on paper. Indeed the respondent had printed out their correspondence by e-mail and the messages filed with the Court for the period January to May, 1998, were voluminous. [12] The petitioner rents three bedroom bungalow in Whitmore Park. Travis and Jonathan share room. Travis is now in kindergarten attending St. Matthew’s School which is about five minute walk from the house. The petitioner is employed by SaskPower. At trial she was on fulltime term position and expected to eventually revert to permanent part-time position involving three to four days per week. [13] Greyson has ADD and is on medication. He is in Grade at St. Matthew’s. The respondent expressed concern about Travis and Jonathan being left alone with Greyson. The petitioner acknowledged that Greyson was unable to look after his siblings for more than one-half hour at time. The respondent expressed concern over what appeared to be the petitioner’s plan to leave Travis and Greyson alone for an hour in the morning prior to taking the bus to school. [14] There was also evidence that Travis has an asthmatic condition. There was some suggestion that perhaps the dogs which the petitioner has could aggravate Travis’ condition. However, both parents have dogs and quite frankly am satisfied on the evidence that both parents take Travis’ condition seriously and attend to his needs appropriately. [15] It is clear the children are close to their paternal grandparents. The grandparents have provided extensive child care services in the past and are prepared to continue to do so. Mrs. Tubello Senior is 66 years of age and her husband is 73. The respondent would propose to continue to use his parents’ services extensively. The petitioner recognizes the relationship the children have with their grandparents and is supportive of that relationship. The petitioner agrees the children would continue to be looked after by the grandparents two days per week when required but believes the children benefit from an external child care service as well, such as the YWCA, so as to learn to socialize with other children. [16] Counsel for the petitioner acknowledged in argument that we have, in this instance, two very good parents who are caring, loving and responsible, and each of whom has close relationship with their children. It was suggested that in assessing the two parents and determining the appropriate parenting arrangement that the respondent’s conduct had demonstrated rigidity or inflexibility to co-parenting. It was argued that any compromise offered by the petitioner was never good enough. [17] It was argued that in determining primary residence the petitioner had been the primary caregiver. Maintaining the parenting arrangement will keep siblings together. It was argued the petitioner’s approach to balance between time spent with the paternal grandparents and developing the children’s social and interpersonal skills was in their best interests and demonstrated sensitivity to the needs of the children. Counsel suggested that while an order in which children alternate residence may be appropriate where there is common approach to co-parenting, the parties here have not demonstrated an ability to co-parent effectively as illustrated by their communication problems. Counsel was also of the view the petitioner is the more willing parent to promote maximum contact. She was the one who was always compromising. [18] The respondent argued that primary residence with their father would maintain the status quo which the children had known up until separation. It was argued the petitioner was unwilling to facilitate maximum contact as demonstrated by various e-mail messages in which she would reject requests for additional access by the respondent. It was suggested the respondent could provide greater stability and the support of an extended family. [19] Counsel argued that shared parenting in which the children would spend alternate weeks at each parent’s home remained viable option. However, the respondent acknowledged in evidence it was unlikely this type of arrangement would work in light of the inability of the parties to communicate. agree with that assessment. [20] The Divorce Act, R.S.C. 1985, c. (2nd Supp.) provides: 16.(1) court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. (4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons. (5) Unless the court orders otherwise, spouse who is granted access to child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child. (6) The court may make an order under this section for definite or indefinite period or until the happening of specified event and may impose such other terms, conditions or restrictions in connection therewith as it things fit and just. (7) Without limiting the generality of subsection (6), the court may include in an order under this section term requiring any person who has custody of child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child. (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child. (10) In making an order under this section, the court shall give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [21] I accept the characterization that these are both very good parents. It is unfortunate that they could not demonstrate an ability to co-parent more effectively. They are both somewhat responsible for the present state of affairs. While the parties started out trying to co-parent and had agreed to alternate weeks, the petitioner proceeded to serve motion for interim custody just over two weeks after separation. Their subsequent conduct indicates lack of sensitivity at times, on the part of both parents, to the needs of their children and the interests of each other. There were occasions when the respondent would not be working and rather than have the children spend the day with their dad the petitioner would make them go to daycare. [22] am satisfied, however, the respondent bears the larger share of responsibility for the breakdown in communication and ultimate inability of the parties to show more flexibility. The respondent initially failed to make the child support payments as ordered. He decided he would pay what he thought he could afford. He decided to deprive his children of proper financial support and that he was providing the petitioner with enough to meet the necessities. His conduct could lead to an inference that what mattered most was the money and not his children. [23] am satisfied that the petitioner was prepared in the initial stages to be more flexible than the respondent and prepared to promote maximum contact. In the beginning the respondent’s access went beyond the minimum required by the interim order. The respondent sought, and was given every weekend. When the petitioner requested weekend for herself with the children the respondent would agree only if the petitioner gave him more mid-week access in lieu. agree with the petitioner’s characterisation that the respondent’s attitude was always to push for more. He wants to get, but is reluctant to give. [24] The respondent testified that what he wanted was “equal time”. It was evident in cross-examination of the respondent that an approximation of equal sharing of the children’s waking time when the parents are not working was insufficient as far as he was concerned. [25] The respondent took the position in cross-examination that the lack of information about health and other matters was the petitioner’s fault. It was also his position that for them to communicate better it was the petitioner who had to change her ways. The respondent acknowledges no responsibility in this regard. accept the petitioner’s observation to be correct that when they tried to talk about the children the respondent would be insistent that things be done his way. [26] I find it is in the best interests of the children that their primary residence be with their mother. She has demonstrated a greater flexibility and sensitivity to their needs. am satisfied that once the issue is resolved, the petitioner is the one who will better promote maximum contact with the other parent. The petitioner acknowledged it would be appropriate for the respondent to have time with the children two weekends out of every three. [27] The petitioner is sensitive to and supportive of the children’s relationship with the paternal grandparents. On the other hand she has appropriately identified that balance is necessary in this regard. [28] There will be an order as follows:(a) The petitioner shall parent Travis and Jonathan, who shall reside with the petitioner, except during those times when the respondent shall parent the children;(b) The respondent shall parent the children as follows:(i) Two weekends out of every three weekends commencing Friday after work to Sunday evening. In the event such weekend shall be immediately preceded or followed by statutory holiday, the respondent’s parenting time shall be extend to include the statutory holiday. In the event the respondent has an EDO on Friday preceding his weekend with the children, his parenting time shall commence on the Thursday after work; (ii) One evening during the week which evening is to be agreed and fixed by the parties; (iii) Such additional time as the parties may agree upon. (c) There shall be an equal sharing of holiday time. At this stage and given the age of the children, any one block of time during the summer shall be no more than two weeks in duration. The parties are to agree by June of each year on the division of the summer holiday period. During the holiday time of either parent with the children, such holiday time shall be exclusive; (d) The children may be cared for during the day by their paternal grandparents on Tuesday and Thursday of each week; (e) The parties shall consult with regard to all decisions regarding Travis and Jonathan, including matters affecting their health, welfare, education and religion, provided, however, that in the event of disagreement the ultimate decision shall be that of the petitioner. Both parents have the right to make inquiries and be given information concerning the health, education and welfare of the children; (f) In the event that either party intends to change his or her place of residence, he or she shall notify the other at least 60 days prior to any change and provide any information as to when the change shall occur and what the new place of residence shall be. [29] In making the order in the manner set forth have assumed that with resolution of this matter the parties can work on improving their communication and parenting in the best interests of their children. [30] With respect to child support, find the respondent to have an income of $31,800.00 based upon his current pay stub. He shall pay child support to the petitioner of $449.00 per month commencing March 1, 1999, and on the first day of each month thereafter. The petitioner has an income of $27,000.00 based upon the payroll change information submitted. Allowance has been made for union dues although the precise figure was not available. Pursuant to s. 7 of the Federal Child Support Guidelines (SOR/97-175) the respondent shall pay to the petitioner 54% of the net cost of child care expenses incurred as a result of the petitioner’s employment, upon the petitioner producing her receipts each month and advising the respondent of the net cost. In the event there are health related expenses that exceed insurance reimbursement by $100.00 annually, the respondent shall pay to the petitioner 54% of the amount which exceeds the insurance reimbursement, upon production of receipts by the petitioner. [31] Two issues were raised with respect to the division of matrimonial property. The first involved the value of the respondent’s 1988 GMC van. The only evidence tendered apart from what the petitioner might think it should be worth was an offer to purchase prepared by Capital Pontiac Buick in which they would allow trade-in value of $3,500.00 and find that to be the value of the van. [32] The second issue is whether Forenza automobile constituted matrimonial property and if so the value thereof. The vehicle was purchased by the respondent prior to marriage as work project. It was used at one point during the marriage as means of transportation. It is said to not be in running condition at this time. It is an asset in existence as of the date of application. The onus is on the respondent to establish an exemption. The evidence in this regard was sketchy and find the respondent has failed to discharge the onus upon him. find the Forenza automobile to constitute matrimonial property. The only evidence of value was $200.00 and find that to be the value. [33] Either party may speak to costs if they wish.
The primary issue was the appropriate parenting arrangement for the two children. The 1997 interim order awarded joint custody with the primary residence with the mother and reasonable access to the father including alternating weekends, reasonable telephone access and equal sharing of holidays. The father initially failed to pay child support as ordered then paid $250 per month rather than the $424.72 ordered. The parties no longer communicated directly with each other except by e-mail so that there was a record. HELD: 1)It was in the best interests of the children that their primary residence be with their mother. She had demonstrated greater flexibility and sensitivity to their needs. The father was granted access two weekends out of every three and additional time as they may agree upon. Although both were very good parents the parties had not demonstrated an ability to co-parent effectively as illustrated by their communication problems. The father's access initially went beyond the minimum required by the interim order. He failed to make support payments as ordered. The father was to pay child support of $449. Pursuant to s.7 of the Federal Child Support Guidelines he was to pay 54% of the net cost of child care expenses incurred as a result of the mother's employment and for health related expenses in excess of $100 of the insurance reimbursement upon production of receipts.  2)The automobile constituted matrimonial property and was valued at $200. 3)Either could speak to costs.