A.D. 1997 No. 443 J.C.S. IN THE QUEEN‘S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON RESPONDENT T.E. Forsyth for the petitioner G.W. Crookshanks for the respondent JUDGMENT M-E. WRIGHT J. January 18, 1999 [1] The petitioner, [K.O.], and the respondent, [C.O.], married on November 14, 1987 and separated for the final time on November 4, 1995. They have four children, [J.M.O.], born […], 1985, [A.S.O.], born […], 1987, [A.J.O.], born […], 1988, and [N.R.O.], born […], 1991. [2] The primary issue between the parties is custody of their four children. Ancillary to and dependent upon determination of the custody issue, is the quantum of child support that will be payable by either party. Matrimonial property owned by the parties at the time of separation has largely been divided between them to their mutual satisfaction, with the exception of few items to be dealt with by way of court order. Both parties agreed that the application for dissolution of the marriage proceed pursuant to the counter-petition. The evidence demonstrated breakdown of the marriage as established by s. 8(2)(a) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.). [3] [K.O.] and [C.O.] met in October, 1986, while both were residing in North Battleford. [K.O.] was working at financial institution which had employed him in various Saskatchewan localities since 1979. [C.O.] had one child at the time, [J.M.O.], who was some 20 months old. [4] In December, 1986, [K.O.] and [C.O.] became engaged. They were living in common-law relationship by February of 1987. [A.S.O.] was born in […] of that year and the parties married in November. In the following year [A.J.O.] was born and [K.O.] adopted [J.M.O.]. [5] Due to the nature of [K.O.]‘s employment, the early years of the marriage were occasioned by several moves. Shortly prior to their marriage, [K.O.] was transferred from North Battleford to Rockglen. In 1988 he was again transferred, this time to Leader. That was followed by move to Meadow Lake. It was while living in Meadow Lake that [N.R.O.] was born in 1991. In July, 1992 the family moved to Prince Albert. [6] It was after the move to Prince Albert that the parties‘ relationship became strained and the marriage began to deteriorate. [C.O.] found her life stressful. [K.O.] was working and she was at home with four small children. [C.O.] developed new friendships and began leaving the home three or four evenings each week, often staying out until the early morning. By her own admission, [C.O.] relied too heavily on alcohol. [K.O.] felt as though he had two full-time jobs—one to earn the family income and the other to maintain the family and household while at home. [7] The first separation occurred on October 27, 1993 when [K.O.] learned that [C.O.] had been concealing unpaid bills. When [K.O.] returned home later that day he discovered [C.O.] and [N.R.O.] gone. The school advised [K.O.] that the three older children were absent that day due to “family illness”. [8] On October 28, 1993, [K.O.] obtained an ex parte order granting him custody of the children. On November 23, 1993, he obtained an order for interim custody and exclusive possession of the matrimonial home. [C.O.] was awarded reasonable access on reasonable notice. [9] [C.O.] and [K.O.] reconciled in February, 1994. By all accounts, things went well between them until the summer of 1995. By then, according to [K.O.], [C.O.] began again to spend considerable time away from the home. [K.O.] and [C.O.] separated in November. On this occasion [K.O.] left the matrimonial home and obtained an apartment for December 1, 1995. He exercised access to the children minimum of every second weekend and overnight each Tuesday and Wednesday evening. [10] In May, 1996, the parties entered into an interim separation agreement. It was agreed that [K.O.] and [C.O.] would have joint custody of the children who would reside with [C.O.]. [K.O.] would have access every second weekend, overnight access during the week, alternate school vacations, and one month each summer. [K.O.] agreed to pay child support in the amount of $693.80 per month by way of payment of certain marital debts and household expenses. On an interim basis, [C.O.] was to continue to enjoy possession of the matrimonial home. [11] Following execution of the interim agreement, [K.O.] continued to exercise access as he had done since the separation as well as additional evenings when [C.O.] had other plans. This arrangement worked well. [K.O.] and [C.O.] were able to communicate and co-operate with respect to planning for the children. They were successfully co-parenting. In August, 1996, [K.O.] was transferred to Saskatoon. [K.O.]‘s weekday access was by necessity reduced. He continued to have the children with him every second weekend and travelled to Prince Albert regularly to attend the children‘s activities. When the children were not with him, [K.O.] telephoned them every Wednesday and Sunday evening. [12] [C.O.] relocated to Saskatoon with the children in April, 1997. Her reasons for doing so in the middle of the school year could not be explained by [C.O.], who acknowledged that [J.M.O.] was not doing well in school. Despite there being no urgency to move at that time, [C.O.] denied that the move was in any way related to new relationship she had formed. [13] Unfortunately, with both parties residing in Saskatoon, their relationship, co-operation and communication with each other deteriorated. This had detrimental impact on their ability to effectively co-parent the children. [K.O.] had begun dating [L.K.], herself the mother of two children, then aged and 5. [14] Since September, 1997, [K.O.] and [L.K.] have been living in common-law relationship and residing in duplex that [L.K.] has lived in for the past four and one-half years. When all six children are in their care, [A.S.O.] and [L.K.]‘s daughter share bedroom, [J.M.O.] and [N.R.O.] share basement bedroom, [A.J.O.] sleeps in the downstairs family room and [L.K.]‘s son has separate bedroom on the main floor. Both [K.O.] and [L.K.] view their relationship as long-term. [K.O.] intends to remain in his present employment in Saskatoon. [15] [C.O.] has resented [L.K.] having any contact with her children and took steps to limit and restrict [K.O.]‘s access, including an attempt to illicit support from professionals for her position that the children should have no contact with any present or future girlfriend that [K.O.] may have. By the time of trial, [C.O.] had still refused to meet or speak with [L.K.]. Even so, she maintained at trial an unsubstantiated belief that [L.K.] was “not fit” to care for the children. [16] [C.O.] has now also formed new relationship. She and [G.P.] met in September, 1997. [G.P.] resides in Clareshorn, Alberta, approximately one hour south of Calgary. He has four-year-old son who resides in Calgary and with whom [G.P.] exercises regular access. [G.P.] and [C.O.] see each other approximately two times each month, either in Clareshorn or Saskatoon. [17] By December, 1997, [C.O.] and [G.P.] were engaged. At that point, [G.P.] had met [C.O.] and [K.O.]‘s children on only two occasions, once for brief visit shortly after he and [C.O.] met and for one weekend in December. [C.O.] and the children then spent eight days in Clareshorn at Easter, 1998. The fourth time [G.P.] had contact with the children was at the time of the trial in this proceeding. [18] Although [C.O.]‘s intentions in January, 1998 were to marry [G.P.] in August, 1998, those plans were modified by trial to marriage date sometime in the future. She and the children would then move to Clareshorn, Alberta. By the time of trial, [C.O.] had been to Alberta to visit [G.P.] on four occasions, and he had come to Saskatoon on six occasions. THE CHILDREN [19] [J.M.O.] is now 13 years of age and attending Q.[…] School. Following her move from Prince Albert to Saskatoon in 1997, her academic performance improved and she successfully completed her year. According to [K.O.], [J.M.O.]‘s marks continue to improve. [20] While she was still living in Prince Albert, it was determined that [A.S.O.] was learning disabled and required specialized attention. Yvonne Beuker, special needs resource teacher at H.[…] School testified that [A.S.O.] has been in her integrated special needs program since August, 1997. According to Ms. Beuker, [A.S.O.] will require specialized training throughout her schooling including modified high school program. Without this specialized program, [A.S.O.] would struggle in the regular classroom setting. [21] [N.R.O.] too has special needs. Since the fall of 1997 she has attended Q.[…] School only in the afternoons. Each morning she is bused to W.[…] school for specialized speech therapy program. Her teacher at W.[…] school, Krista Ford, is also speech language pathologist. According to Ms. Ford, children remain in program such as this for year or more, depending upon the child. Left unremedied, the language difficulties encountered at present by [N.R.O.] often result in negative social and academic consequences. [N.R.O.] is making good progress in the program and is highly motivated. [22] No evidence was presented that [A.J.O.] is not doing well academically and socially. However, an unfortunate incident occurred in the summer of 1997 when the children were in [K.O.]‘s care. [J.M.O.] discovered [A.J.O.] and [L.K.]‘s son engaged in sexually inappropriate conduct. On the advice of an individual at MacNeill Clinic, the incident was reported to the Department of Social Services and then to the police. [23] The investigation by the Department and the police did not lead to any charges or any recommendations other than that both children receive counselling. Notwithstanding this outcome, [C.O.] used this incident to deny [K.O.] overnight access during the week, but continued to allow weekend access. She went so far in her efforts to support her denial of this access that she intentionally misrepresented the position of the Department of Social Services by suggesting that it was the Department that recommended that the children should not overnight with [L.K.]‘s children. This misrepresentation led to strongly-worded letter from the Department of Social Services refuting [C.O.]‘s position. THE PROFESSIONALS [24] Eunice Koehler, family counsellor, testified with respect to her involvement with the [O.] family. She was first contacted by [C.O.] regarding parenting issues, and concern that [A.S.O.] was quiet and withdrawn. [C.O.] was also seeking advice as result of learning of [K.O.]‘s new relationship with [L.K.]. Ms. Koehler met on approximately six occasions with [C.O.] and [A.S.O.], once with [K.O.] and [A.S.O.], and once with the entire family. She spoke to each child alone on one occasion. [25] At no time did Ms. Koehler advise [C.O.] that the children should not have contact with [L.K.], an issue that was regularly raised by [C.O.]. [C.O.] however incorrectly represented to [K.O.] and others that it was Ms. Koehler‘s position that such contact should be restricted, again in an attempt to effectively limit [K.O.]‘s access to the children due to his relationship with [L.K.]. [26] Ms. Koehler‘s observations of and communications with [C.O.] caused her to be concerned about [C.O.]‘s negativity towards [K.O.] and even more so towards [L.K.]. This negativity was having an adverse impact on the children who Ms. Koehler believed to be caught in the middle of the conflict. All children were very protective of their mother and worried about her while in their father‘s care. They all spoke highly of [L.K.], with the exception of [N.R.O.], who indicated that [L.K.] sometimes yells. Overall, Ms. Koehler felt that Kerry had more stabilizing effect on the children. more disciplined environment in his home offered routine that provided security and stability to the children. [27] Although her involvement with members of the [O.] family, other than [C.O.] and [A.S.O.], was limited, Ms. Koehler‘s impression that [K.O.] has stabilizing effect on the children was confirmed by the report and testimony of Gloria Martens, B.S.W., R.S.W. [28] Ms. Martens completed custody and access assessment dated January 19, 1998. Her report was entered as an exhibit at trial and she testified as Court witness. In preparing her report Ms. Martins conducted home, office and telephone interviews with both parents. She observed the children in both homes. She also conducted extensive interviews with relatives, references, teachers and other professionals involved with the children. [29] Her recommendations included that [K.O.] and [C.O.] continue to share joint custody of the children and that the children alternate between the two residences every two weeks. School vacations should be shared or alternated. In her testimony, Ms. Martens stressed that the most important consideration for the children at this time was to have stability in their lives. Ms. Martens was aware when making her recommendation that [C.O.]‘s future plans may include move away from Saskatoon. [30] In her visit to [C.O.]‘s home, Ms. Martens observed that the children‘s affection towards their mother was sound. The same observation was made about the children‘s relationship with [K.O.] and [L.K.] during the visit to that home. Ms. Martens did not observe any preferential treatment as between [K.O.]‘s children and [L.K.]‘s children. It was evident to Ms. Martens that the children were happy at [K.O.]‘s home. They were open and forthright about their father during the home visit, marked contrast from the office visit where they were guarded in any such comments. [31] continuing concern of Ms. Martens was the negative influence that [C.O.]‘s attitude towards [K.O.] and [L.K.] has on the children. During her office visit with [J.M.O.], [J.M.O.] questioned Ms. Martens regarding the trial and was pre-occupied with what should be adult issues. Again, at the home visit, [C.O.] raised matters in the presence of the children regarding their father‘s home which, according to Ms. Martens, promoted negative attitude towards their father. It was clear to Ms. Martens that the children were aware of the purpose of her involvement with them and aware of the dispute between their parents. [32] According to Ms. Martens, all children are now doing well. [A.S.O.] in particular however has special needs that require consistency and stability to ensure that she does not regress. It is in their father‘s home that the children have the most stability and where they receive the most structure and support in their educational endeavours. The children are however bonded to their mother, leading to Ms. Martens‘ recommendation that the children spend equal time in each of their parent‘s homes. While there would be disruption at the commencement of their stay at one parent‘s home, that disruption would occur only once every two weeks. [33] In considering an application for custody, the relevant provisions of the Divorce Act, are: 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. (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. [34] Each of [C.O.] and [K.O.] have strengths and weaknesses in their respective roles as parents to [J.M.O.], [A.S.O.], [A.J.O.] and [N.R.O.]. They each have the necessary knowledge, skill and ability to parent these children. Both have acted as primary custodial parent, at different times, since their first separation in 1993. They have in the past co-operated with one another, notwithstanding their own marital discord, to the extent that they were able to effectively co-parent the children. [35] [K.O.] agrees with the recommendations of Ms. Martens. [C.O.] does not, although she does agree that she and [K.O.] should retain joint custody. She candidly acknowledged her belief that once this ongoing litigation is concluded the animosity between herself and [K.O.] would diminish and they would be able to effectively co-parent. She wishes however to have the children reside primarily with her and visit with their father only on alternate weekends and one or two evenings each week, as well as holiday time. [36] Apart from her obvious distain for [K.O.]‘s new relationship, [C.O.] raised no significant concerns regarding [K.O.]‘s parenting abilities nor any compelling reason why the children should reside primarily with her. There is no doubt in my view, that her predominant motivation in advancing this position is her wish to ultimately relocate to Alberta to marry [G.P.], and to limit the children‘s contact with [L.K.]. [37] In making an order for custody pursuant to the Divorce Act, I must take into consideration only the best interests of the children as determined by reference to the condition, means, needs and other circumstances of those children. am not persuaded that it is in these children‘s best interests that they be removed from an environment that offers them the stability that they require nor from the specialized educational opportunities available to them in Saskatoon. [38] The uncontradicted evidence of Ms. Martens indicated that the most important consideration for these children now is stability. That stability is found in their father‘s home. Neither [C.O.] nor [G.P.] appeared to have any meaningful appreciation that move to Clareshorn, six hour drive from Saskatoon, would have any significant impact on the quality or quantity of contract that the children would have with their father. In the circumstances of these children, that contact is of particular importance to ensure that their needs for security and stability are met. [39] Further, very little evidence was presented regarding the educational opportunities in Clareshorn, town of 4,500 to 5,000 people. [C.O.] was aware that there were three schools in the town, from kindergarten to Grade XII. No evidence was presented which would allow me to conclude that [A.S.O.] and [N.R.O.]‘s specialized educational needs would be met in that locality. [G.P.] was not even aware that [A.S.O.] was learning disabled. [40] For the foregoing reasons, I find it in the children‘s best interests that they be in the joint custody of [C.O.] and [K.O.] and that they reside an equal amount of time in each home, alternating every two weeks. There will be an order accordingly. [41] This custodial disposition is “shared custody” arrangement as contemplated by s. of The Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] which provides. 9. Where spouse exercises right of access to, or has physical custody of, child for not less than 40 per cent of the time over the course of year, the amount of the child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. Also relevant is s. 26.1(2) of the Divorce Act, which sets out that “spouses have joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute” to that obligation. [42] The factors to be considered by the Court and enumerated in s. of the Guidelines recognize that there is an increased cost associated with shared custody as well as joint obligation of the parents to contribute to that cost in accordance with their ability to do so. Maintaining two homes in which children will reside for approximately equal time results in many duplicated expenditures and by necessity, increases the overall cost of providing for the children. While reference must also be made to the amount otherwise payable by each spouse pursuant to the applicable table, set-off of those amounts is not automatic as is the case in situations governed by s. of the Guidelines. Furthermore, the mere existence of shared custody arrangement does not necessarily lead to reduction in the amount of support that one spouse would pay absent such an arrangement. There is broad discretion in the Court to consider the means, needs and circumstances of the children and of the spouses. [43] In Hubic v. Hubic (1997), 1997 CanLII 11103 (SK QB), 157 Sask. R. 150 (Q.B.), Dawson J. considered the application of s. of the Guidelines. She stated at paragraph 17: How should these criteria be taken into consideration? This section differs from “split custody” arrangements, which are dealt with in s. of the Guidelines. Section provides that the amount of child support payable in “split custody” situation is “the difference between the amount that each spouse would otherwise pay if child support order were sought against each of the spouses.” Section is not as limiting. Section 9(a) provides that the amounts set out in the applicable tables should be considered. However, the court should also look at the increased costs of shared custody (9(b)) and any extraordinary expenses incurred by either party or other circumstances which are relevant (9(c)). Section 9(c) contemplates broad discretion in determining the proper award. would suggest that the discretion should be interpreted, having regard to s. 26.1(2) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.); that is that parents have joint responsibility to support their children. The total cost of raising the children should be allocated between the parents having regard to the costs each parent incurs, and their relative incomes. In that case, neither party adduced satisfactory evidence of the increased costs of shared custody such that consideration could be given to s. 9(b) of the Guidelines. Accordingly, child support was assessed by setting off the amounts determined under s. 9(a) with each spouse paying their own expenses for child care and the extra-curricular activities in which they enrolled the children. similar approach was adopted by McIntyre J. in Mertler v. Kardynal (1997), 1997 CanLII 11209 (SK QB), 161 Sask. R. 151 (Q.B.), again where neither party demonstrated the increased costs of shared custody. In that case, the parties had comparable incomes. [44] In this case as well, there was no evidence of the increased cost that would be incurred by [C.O.] and [K.O.] as result of sharing custody of the children. This is not intended to be critical of either party or of counsel. It is difficult to adduce such evidence when, as here, shared custody arrangement has not historically been in place. The evidence would be at best an estimate of the future cost of the new arrangement and necessarily lacking in precision. [45] [K.O.]‘s annual salary is $43,900. He also received “team dollars” in each of the last four taxation years. In the first three of those years, this amounted to an additional $1,200 of income in each year. In the 1997 taxation year, this amount was an additional $2,000 in income. While [K.O.] indicated he could expect to receive this bonus only in six out of every ten years, the evidence demonstrated clear pattern of additional annual income for the purpose of the Guidelines. find [K.O.]‘s annual income for this purpose to be $45,900. Based on this income, the applicable table amount for four children is $962 per month. [46] [C.O.]‘s income is comprised only of the child tax credit, the family income plan supplement and the interim child support that she receives from [K.O.]. Her annual income for the purposes of the Guidelines is below the level at which any child support would be payable by her pursuant to the applicable table. [47] Where as here, there is significant disparity in the incomes of the parties, straight set-off of the applicable table amounts as suggested in both Hubic and Mertler may not in all cases be appropriate. The result in this case would be that [K.O.] would be obliged to pay to [C.O.] the full table amount. While that may be an appropriate result in situations where one party has a high income, in this case it fails to take into account [K.O.]‘s more modest means and ability to pay both the full table amount of child support as well as support four children in his care 50 percent of the time. However, too great reduction in the amount payable by [K.O.] would limit [C.O.]‘s ability to adequately care for the children while with her. Many of her costs will not be reduced merely because the children are with her only one-half of the time. [48] Having considered the foregoing, I am of the view that it is appropriate to reduce the child support payable by [K.O.] pursuant to the table by approximately 30 percent.  Accordingly, there will be an order that he pay child support to [C.O.] in the amount of $675 per month commencing February 1, 1999. [49] The only items of matrimonial property left to be divided are registered retirement savings plan and [K.O.]‘s employment pension. The parties agree that these assets, after payment of associated liabilities, should be divided equally. Accordingly, there will be an order that the registered retirement savings plan be redeemed and the proceeds, after payment of any amount remaining outstanding on the loan, and any associated tax liability be divided equally between [K.O.] and [C.O.]. As well, [K.O.]‘s employment pension will be divided equally at source in accordance with the provisions of his employee pension plan regarding division on marriage breakdown. [50] Finally, there will be an order dissolving the marriage, not to take effect for 31 days. [51] There will be no order as to costs.
The primary issue was custody of the four children and dependent upon that determination, the quantum of child support. Matrimonial property owned at the time of separation in 1995 had been divided except for a pension and RSP. The parties agreed to joint custody in 1996 in an interim separation agreement and the father would pay support of $693.80 per month.HELD: 1)The evidence demonstrated a breakdown of the marriage as established by s.8(2)(a) of the Divorce Act. 2)Joint custody was ordered such that the children would reside an equal amount of time in each home, alternating every two weeks. The most important consideration was stability which was to be found in the father's home. Only the best interests of the children must be taken into consideration as determined by the condition, means, needs and other circumstances of the children. 3)The child support payable by the father was reduced by 30 percent. The table amount for four children based on the father's income of $45,900 was $962 per month. The mother's income was below the level at which any support would be payable. Where there is a significant disparity in incomes, a straight set off as suggested in Hubic and Mertler may not be appropriate in all cases. It failed to take into account the father's more modest means and ability to pay the full table amount as well as support for four childen in his care 50 percent of the time. The shared custody arrangement which fell within s.9 of the Federal Child Support Guidelines, did not necessarily lead to a reduction in the amount payable. There was no evidence of increased costs. 4)The parties agreed the registered retirement savings plan and employment pension should be divided equally after liabilities were paid. 5)No costs.