J. 1999 SKQB 178 A.D. 1997 No. 639 J.C.S. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON RESPONDENT K. Seto Davis for the petitioner [R.C.D.] on his own behalf JUDGMENT WILKINSON J. November 10, 1999 [1] Although custody was the most conspicuous issue in this proceeding, there are questions of child support and division of matrimonial property that require resolution before the parties can put an end to their acrimonious marital breakdown. The father was unrepresented at trial with the unfortunate result that these proceedings became an extended replay of past domestic arguments. [2] The parties were married on May 22, 1982 and had three children: [T.B.D.], born […], 1985; [M.M.D.], born […], 1987; and [L.C.D.], born […], 1991. [3] The parties separated on October 28, 1997 and petition was immediately issued. The respondent remained in the matrimonial home at 205 Cartier Crescent in the City of Saskatoon, while the petitioner and the children obtained rental accommodation close by. The petitioner obtained interim custody of the children by order of this Court dated December 19, 1997. The respondent was ordered to pay child support of $405 per month, based on an annual income of $21,600. Maintenance was to commence January 1, 1998. To date of trial, the respondent had made only one voluntary payment of $100 in January, 1998 and otherwise ignored the maintenance order until garnishees were implemented by the Maintenance Enforcement Office. The respondent was to have access on his scheduled days off work. [4] On May 6, 1998, the respondent was ordered to list the matrimonial home for sale by June 10, 1998 if he could not obtain financing to buy out the petitioner’s share. The order of Noble J. specified that the sale was to be at price recommended by licensed real estate agent of the purchaser’s choice. The net sale proceeds after payment of the mortgage, real estate commissions and legal fees were to be held in trust or divided equally between the parties. That order was appealed but the respondent agreed the appeal would be abandoned at the commencement of this trial. [5] The father’s employment with the Canadian Corps of Commissionaires was terminated shortly after the order for sale of the matrimonial home was made. He was on employment insurance for short time and subsequently obtained brief employment with Lake Diefenbaker Potato Corporation but he continued to default in his maintenance payments. The father came to resent the fact that access was always exercised on his day off and he had no time to himself. He accused the mother of pushing the children on him. He encouraged the children to come whenever they wanted and problems multiplied. An order of August 12, 1998 was ultimately issued by consent giving the father specified access every second weekend and every second Wednesday. [6] custody and access assessment was prepared for the Court on February 19, 1999. It reports that the parties have been struggling since early on in their relationship. There was prior separation in 1984 when the mother had one-night affair and the father raised questions whether he was in fact the biological father of the eldest son. The relationship did not improve, despite producing two more children. The mother had serious concerns regarding the father’s abuse of alcohol and his anger towards the children, particularly the eldest son. The father felt the mother was mentally ill and abusive to him and the children. [7] The assessor, Garry Prediger, described [T.B.D.] as fairly mature thirteen-year-old who internalizes many of his emotions. He is reportedly in frequent conflict with his sister, [M.M.D.], who he sees as playing off both parents to get what she wants. He stated unequivocally he had no wish to live with his father who he views as dishonest and disinterested in him. [8] Mr. Prediger described [M.M.D.] as bright and somewhat precocious child. She stated baldly to him that she feels her mother has never loved her, is physically abusive and, as result, she will not live with her mother and will run away if forced to. She acknowledged conflict with her older brother, [T.B.D.]. Mr. Prediger acknowledged the possibility that [M.M.D.] had been able to avoid responsibility for unacceptable behaviour and play one parent off the other i.e. call and be “rescued” by dad when in conflict with mum. [9] In Mr. Prediger’s assessment, [L.C.D.] has more appearance of being neutral and he enjoys the company, support and care of both parents. [L.C.D.] has had some behaviour problems following his parents’ separation. He also has some special needs due to difficulties with auditory processing and requires much assistance in reading and spelling. He needs consistency and routine. It was the assessor’s view that due to [L.C.D.]’s young age, he might be more insulated from the conflict in the family. [10] The report outlines the mother’s recognition of past problems with depression and her progress in dealing with it through medication and counselling. She is at the point her doctor describes her as “well managed” and without any need for psychiatric care. The depression has been ascribed to environmental stresses which the mother specifies as the stress of being in co-dependent relationship with problem drinker. Her counsellors consider her issues are situational rather than innate. The petitioner currently maintains full-time employment at SIAST and was recently promoted to higher-paying position. [11] The custody and access report notes that in July, 1998 the father accused the mother of abusing the children. full investigation was conducted by child protection worker who found no protection concerns and that despite strong alliances ([M.M.D.] with dad, [T.B.D.] with mum), the children had no fear of either parent. [12] The report states the father denied having an alcohol problem. He appeared sincere when he said he had discontinued drinking. [13] Concluding that both parents were involved in “protracted pattern of dysfunctional, conflictual communication” and having regard in particular to the age and unwavering antagonism of the two eldest children, Mr. Prediger recommended that custody of [T.B.D.] remain with the mother, the parents have joint custody of [M.M.D.] whose primary residence would be with the father, and custody of [L.C.D.] remain with the mother. He recommended that access remain as set out in the interim order. [14] The respondent rejected the custody and access assessment. At trial, his opening bid was to introduce into evidence some 14 hours of telephone conversations he taped with the wife and children which he forcefully asserted would demonstrate the level of abuse occurring in the petitioner’s home. Only by hearing the tapes, he suggested, could the Court truly understand the petitioner’s violent nature and her dysfunctional relationships with the children. The respondent was adamant that the custody and access assessor never obtained an honest opinion from the children and the Court should not avoid the opportunity of hearing the children in their own words. [15] The father wished to present selected portions of the tapes for reasons that ultimately became obvious. Counsel for the mother objected strenuously to the tapes being admitted and particularly to any edited version of the recordings. In the ordinary course, tape recordings are inadmissible unless their authenticity is established, they are shown to be true and unaltered record, and the voices have been properly identified: See Simpson Timber Co. (Saskatchewan) v. Bonville et al. (1986), 1986 CanLII 3369 (SK QB), 49 Sask. R. 105 (Q.B.); Hauer v. Hauer, (1959), 1959 CanLII 238 (SK CA), 18 D.L.R. (2d) 742 (Sask. C.A.). They are, of course, subject also to the standard test governing the admissibility of evidence in that they must be relevant and probative. [16] In G.(R.) v. Christison, 1996 CanLII 6791 (SK QB), [1997] W.W.R. 641, 25 R.F.L. (4th) 51, 150 Sask. R. 1, 31 C.C.L.T. (2d) 263 (Sask. Q.B.), the court, relying on Fattali v. Fattali (1996), 1996 CanLII 7272 (ON SC), 22 R.F.L. (4th) 159 (Ont. Gen. Div.), refused to admit audiotapes of similar nature in custody hearing, stating “...[i]n my view, such forays into the gathering of potential evidence are to be discouraged in the strongest terms. Proceedings involving the best interests of the children should not be decided on evidence the product of calculated subterfuge”. Another line of cases such as Reddick v. Reddick (1997), 14 C.P.C. (4th) 175 (Ont. Gen. Div.), Britton v. Britton (1991), 37 R.F.L. (3d) 253 (Ont. Gen. Div.) and H.(M.) v. H.(B.A.), [1996] CarswellOnt. 2907, 10 O.T.C. 277 (Ont. Gen. Div.), have admitted evidence of that nature despite the failure to make full or timely disclosure of its existence, on the grounds that the court should have access to all available evidence when considering the children’s best interests, notwithstanding the court’s “repugnance” with respect to such conduct as voiced in the Reddick, case. [17] With the same degree of repugnance, and with the utmost reluctance, I allowed the tapes to be admitted here in their totality, but on the condition they went in unedited. The father, being without legal counsel, was insistent that the tapes were of central importance to his case and that they discredited the conclusions of the custody and access report and demonstrated the abuse that was occurring in the mother’s home. [18] After listening to the tapes in their entirety, I am of the view they have the opposite effect. They speak volumes about the father’s character and motivations while shedding little light on the mother’s. The tapes are primarily conversations between the father and the children, either individually or all together. There is really very little involving the mother directly. The keynote theme, as orchestrated by the respondent, is that the mother is deranged and violent but the father will always be there to rescue the children. It is hard to describe the tone and content of these interminable recordings without lapsing into cynicism and disbelief. They contain hour after endless hour of the father alternately interrogating the children about their mother and her parenting habits, suggesting the children are being abused, prompting the children to make unfavourable comments about their mother, magnifying every incident of childish squabbling into crisis, manipulating the children’s distress over the marital breakdown, encouraging the children to run to his home at every opportunity and generally undermining the mother’s parental authority at every available turn. [19] It is evident that there is discord in the mother’s household but it is primarily due to petty juvenile disagreements between the children or fairly predictable resistance to rules or discipline. The most mature voice on the tape is often [T.B.D.]’s. He recognizes early on that his father is seeking out disagreement, no matter how trivial, and will try to blow things out of proportion or attempt to turn them to his own advantage. Over time, [T.B.D.]’s distress escalates. He pleads with his father not to continue on in that fashion. [M.M.D.], on the other hand, appears to thrive on the discord between her parents. When the family unit was still intact, [M.M.D.] often voiced complaint that the respondent preferred to spend time with her brothers. In the past, she seemed to feel she was being denied her father’s love and attention and has fairly basked in the newfound attention she received from her father after the separation. [M.M.D.] happily reports every disagreement in her mother’s household because it draws the recognition she craves. Listening to her on the tapes, one gets the impression of headstrong, self-willed child who is somewhat oblivious to the feelings of others. [20] Some of the more memorable exchanges on the tapes are as follows: 1. The respondent interrogates the children about the age of their babysitters, whether their mother has been drinking, whether she has asked them to hide things or lie, what time they go to bed, what time mum left, when is she coming back, is she getting pushy and is she yelling at them? Despite the lack of any satisfactory responses, the respondent nevertheless assures the children he will make sure they can get out of there and he is “working on it”. When he tells them their mother needs to control things, the response is “so did you, you used to call us names and be really grumpy”. The respondent cautions them that their mother is on welfare and lies about things. 2. [L.C.D.], after his bedtime, and obviously in an overtired state, calls his father. [L.C.D.] and [M.M.D.] are arguing. [M.M.D.] complains about [L.C.D.] eavesdropping. The respondent says “it’s stressful at mum’s house, isn’t it”? The respondent says “the whole divorce crap is crazy and getting harder on everybody”. [L.C.D.] starts to cry endlessly. The petitioner comes on the phone, calmly suggesting [L.C.D.] should go back to bed. The respondent wants to come and pick him up and encourages him with the advice “you should tell people what you want and they’ll hear you”. [M.M.D.] interjects at some point with complaints about [T.B.D.] and the respondent’s advice is that “[T.B.D.] just says things to be mean, like mum does”. 3. There is conversation with [L.C.D.], once again where the child is obviously overtired but fretful at being left with babysitter. The respondent keeps him on the phone while he repeatedly suggests he “can’t solve all the problems at that house, these are mum’s problems”, etc. The conversation is interspersed with complaints from [M.M.D.] that she wants quality time with the respondent without the boys or that she deserves turn to talk. For the edification of the listener, the respondent frequently pauses to note that [L.C.D.] has been crying for 10 minutes, 15 minutes, 16 minutes and 30 seconds, and so on. [L.C.D.] eventually calms down after 19 minutes when the respondent starts talking about buying him new bike and helmet for his birthday. The conversation ends with the respondent’s rather smug observation that he has been on the phone 23 minutes while [L.C.D.] cries because he does not want to be at his mother’s house. [L.C.D.] continues to cry and asks his father four or five times to get him off speaker phone. The respondent says “no”. 4. There are numerous jabs at [T.B.D.] throughout the conversations. The respondent makes comments such as “[T.B.D.] is mean”, “[T.B.D.] likes to have his own way”, “the other two ([M.M.D.] and [L.C.D.]) should try to stick together”, “[T.B.D.] is the ‘family enforcer’” or “[T.B.D.] always wants things”. The conversations are always littered with asides about mum drinking, leaving the kids with babysitters, needing psychiatrist, coming from sick family background where violence and swearing is the norm, and cautions that [T.B.D.] will become just like his mother if he stays there. The maternal grandfather is referred to as “a drunken wife beater” and the respondent comments that “Gramma was happy when he killed himself”. The respondent tells [L.C.D.] and [M.M.D.] that “Gramma is sick also and that if mum died, she would give the kids to Gramma.” 5. There are numerous conversations where minor disputes have occurred between the children (i.e. [M.M.D.] complaining about [L.C.D.] throwing things, etc.), and the respondent immediately suggests they sound “wrecked” or “stressed out”, and with false tone of urgency, he suggests he will come and get them out or rescue them from the situation. 6. The respondent misses no opportunity to state that fighting is not allowed at his house, swearing is not allowed at his house and overall, his house is just “more fun” to be at. 7. [L.C.D.] calls his father to complain that mum didn’t give him his birthday present. He is met with the response “you have been talking to me three minutes and nine seconds, and you seem so sad is anyone yelling over there? Tell me what you want and you’ll get it” or suggestions like “talk to Grampa, he’ll get you out”. [M.M.D.] interrupts to observe that [L.C.D.] has had 15 minutes on the phone and he is only mad because he did not get to open his birthday present early. The respondent goes to the house to rescue [L.C.D.] and bring him back to his home. For additional flourish, he leaves an editorial comment on the tape that “[L.C.D.] went to bed stressed and looked like little zombie”. 8. The respondent asks [M.M.D.] if she is scared of something. She answers “no”, she “just bumped her toe”. After much repeated assurance to [M.M.D.] that she is “so special”, the respondent asks if “anyone’s arguing or fighting over there”. [M.M.D.] says “no, mum’s just reading” and she called because she felt lonely. The respondent starts talking about books. [M.M.D.] sharply observes that the respondent never read much before, mum did all the reading. Changing the subject, the respondent says [L.C.D.] went straight to sleep at his house. [M.M.D.] responds “[L.C.D.] was just overtired and wanted his presents”. Not to be outdone of the last word, the respondent says that “kids don’t get overtired here”. 9. In one lengthy conversation [M.M.D.] phones to inform that her mother has taken apart the phone and does so at 9:00 p.m. every night. The respondent expresses disbelief and alarm despite having asked earlier why the kids were calling so late. 10. conversation occurs when the children are in the care of teenage babysitter. [L.C.D.] has refused to go to bed and the babysitter has tried to make him. [M.M.D.] has decided to have tantrum. The babysitter is on the verge of tears. [T.B.D.] assures his father that he had everything under control, except [M.M.D.] started hyperventilating. The respondent, rather than telling the younger children to behave, calls Social Services and sends Gramma to rescue them, all the while commenting on the mother’s need to “grow up and realize the children are the biggest thing in her life”. Calm prevails as soon as [M.M.D.] and [L.C.D.] have got their way and can go to their father’s. [T.B.D.] remains at his mother’s house. [M.M.D.] ends by asking her father for some new clothes. The next day [T.B.D.] calls his father pleading with him to have [M.M.D.] and [L.C.D.] ready to return to their mother’s house and not to make scene. He is obviously distraught at the prospect of Social Services or the police becoming involved. He begs his father to please talk, saying “you just push me away”. The respondent, in an aside to [L.C.D.], who is clearly listening on the speaker phone, says “[T.B.D.] is just like mum when he is at her house”. 11. There is long conversation that occurs between [M.M.D.] and the respondent when [T.B.D.] and the petitioner are anxious to get [T.B.D.] to his cadets on time. What follows is petulant and protracted outburst from [M.M.D.] about the fact she is not allowed to wear black lipstick. [T.B.D.], although obviously wanting to get to his meeting, calmly explains to the respondent he was bothered that [M.M.D.] gets put down by her friends who said she looked horrible in her makeup. The respondent says “that’s [M.M.D.]’s decision”. [M.M.D.] says [T.B.D.] and mum don’t like her wearing makeup but nothing will stop her and she will do as she likes. The conversation goes on for an eternity with the respondent trying to rationalize with [M.M.D.] to no avail and eventually giving up. The petitioner finally interjects to politely remind everyone it is time to leave to drop [T.B.D.] at cadets. [M.M.D.] continues to reiterate she is not baby anymore, despite seeming evidence to the contrary. The respondent’s opening question on learning there was dispute in the house was “has your mother been drinking?” to which [M.M.D.] responded “no, I’ve been watching”, followed by the respondent’s comment “I’ll be around if anyone gets fighting or hitting, I’ll take them down”. There is follow-up conversation between the respondent and [M.M.D.] concerning the fact she has now found some purple lipstick. The respondent closes with suggestion “the more times you phone me, the more I’ll know you need me”. They end with discussion about the new shoes he bought for [M.M.D.]. 12. There is conversation late in the evening that occurs when the mother is playing cards at friend’s house and the grandmother is babysitting. [L.C.D.] is again cranky and wants to go to dad’s house. [M.M.D.] asks the respondent for new shoes. The respondent says he knows it is no fun with Gramma, he will come and get them. [M.M.D.] disputes that, saying Gramma was reading to [L.C.D.]. The respondent observes they have been talking for four minutes. [M.M.D.] sarcastically says “he’s got timer”. The respondent starts berating the petitioner to the children and engages [T.B.D.] in an argument about why he would prefer to live with his mother. He encourages [T.B.D.] to call Social Services or the help line. The respondent calls the petitioner at her friend’s house and the children complain she would rather be with her friends than be with them. There are discussions about why [T.B.D.] will not go to his father’s. The petitioner eventually hangs up. The respondent says he is going to call Child Protection Services. [M.M.D.], on the other line, urges her father on, saying he has threatened to do that before and didn’t. The respondent says to her “you’re right Mel, should follow through”. [T.B.D.] asks “what are they going to do” and the respondent says “they’ll pull custody from mum”. The respondent tells [T.B.D.] if he leaves him with his mother, he will be in foster home within year. The respondent calls Child Protection Services and advises he has two stressed-out kids whose mother would rather play cards than look after them and the twelve-year-old is crying. [T.B.D.] accuses his father of lying to them and blowing things up. [M.M.D.] tells [T.B.D.] that mum doesn’t want him. 13. There is long conversation with [M.M.D.] in which she is crying about everyone in Mum’s house calling her names. By turns, [M.M.D.] is alternately complaining, wheedling to get black overalls, teddy bear, CD and walkman, curtly admonishing her father for recording their conversation or saying that he should quit arguing with her. The respondent says he is tired of being bugged for money, he is “dog tired and just wants to read while because they were all over last week”. When [M.M.D.] denies it, the respondent says they all “ate him out of house and home” and “[L.C.D.] and his friends have appetites like hogs”. The conversation ends with the respondent saying their mother is the problem and if she’s got her boyfriend there, [M.M.D.] should just get out. [21] could go on and on, but the conversations are all variations on single theme: the children squabble or want attention, the father overreacts, the father blames it all on the mother, the father rescues the children from the “abusive” home. Particularly with respect to the two youngest, the father manipulates the children and the children manipulate the father. [L.C.D.] and [M.M.D.] can be excused by virtue of their young age and their unhappiness over separation they were ill-prepared to deal with. The father, however, has no redeeming excuse for such calculated, offensive and immature behaviour. He has exploited the children’s unhappiness at every turn and incited and encouraged willful and unruly behaviour to suit his own purposes. Even his current partner, Cheryld Backstrom, is blunt in her analysis of the situation. She was present during some of the exchanges. She heard the tapes and “found them pretty extreme silly situations blown out of proportion”. As she noted “take your pick as to who’s doing it”. She admitted the tapes were controlling and that the children were all aware it was being done and depending what mood they were in, they would ask “should we tape this one or what?” She was of the view if the kids didn’t get their way they were sent to their mother’s or vice versa. She disagreed with the respondent’s practice of putting locks on the children’s doors saying it discouraged the children from learning to share or sends the wrong message that someone may get violent. Unfortunately, her abundance of common sense has not had measurable effect on the respondent. [22] The mother undoubtedly has her faults, though not to the exaggerated degree the respondent alleges. Likely she has yelled and sworn and was difficult to live with during the marriage. Clearly that was standard method of communication during their time together. Living with someone experiencing depression is not easy, nor is cohabiting with drinker. But the mother has made concerted effort to put the past behind her and move on, recognizing her own limitations. She has struggled to keep the children fed, clothed and involved in their extra-curricular activities with little assistance from the respondent, financial or otherwise. She has managed to remain calm in the face of significant provocation from the respondent, fact that only infuriates him further. The father is still mired in the past and thirsty for vengeance. The best interests of the children have been secondary. witness called by the father to discredit the mother refused to do so and was non-committal in his support of the father. Stewart Manz acknowledged he had been friends with the father in the past and they had hunted, fished and golfed together. He acknowledged he had never seen the respondent drunk and at most they would consume 12 beer over long weekend, but also agreed that by law they were not allowed to hunt under the influence. He stated the father had good relationship with the children but he would also say he spoiled them with treats. Mr. Manz said he had not seen the respondent in two years and they were not the best of friends any more. Their relationship broke down because he helped the petitioner move out and when he tried to explain things to the respondent, the respondent did not want to hear. Mr. Manz said he had no concerns about the mother’s parenting skills or use of alcohol and he remained friends with her to the present time. [23] Occasionally, the respondent shows flashes of perception, indicating he knows what is required, but has difficulty translating it into action. He says [L.C.D.] needs to have consistency, with no apparent recognition that [L.C.D.] has had exactly the opposite. He said “[M.M.D.] needs to stop playing little mind games but that’s learned behaviour” said without the slightest apprehension that much of that behaviour was learned from him. As to the single, most significant problem in the current state of affairs, the respondent acknowledged he has removed the two youngest children from the petitioner’s house in excess of 100 times but did not feel it was reward system because they have to go straight to bed if he picks them up after 8:00 p.m. [24] The respondent persistently accuses [T.B.D.] of being rough and violent yet urges the children to indulge in play wrestling, pastime the respondent and his current partner will engage in for two hours at time, three or four times week, despite her being eight months pregnant. He acknowledges she sometimes gets bruised but says she is in “good physical condition”. [25] The respondent acknowledges his drinking has lessened but not discontinued as he suggested in the custody and access report. [26] The respondent does have good parenting qualities if they could only be exercised with an absence of malice. At the present time he is consumed by the need to punish his wife for past injustices in the marriage and for making him feel unmanned by her bossy behaviour and control of the family’s finances. In the result, he has created utter turmoil. The two younger children compete for his attention to an unwholesome degree, while the eldest child has all but rejected him. [27] It is the respondent’s view that the legal system is biased and has failed him. The legal system can only help those who help themselves and it is time for the respondent to turn his scrutiny inward. accept the petitioner was unpleasant to live with. Now it is time for the respondent to move on. He is soon to be father again in new relationship that holds the promise of stability and happiness. Until tensions ease, the children require consistency, stability and predictable rules with known consequences. The chaos that has reigned must end and in the current circumstances that can only be accomplished by granting sole custody to one party. I am of a view that sole custody must be awarded to the mother. [28] In one significant aspect have varied from the recommendations of Mr. Prediger who was of the view joint custody of [M.M.D.] was feasible with primary residence to her father. have had the advantage of hearing [M.M.D.] on the tapes in variety of situations. have had the benefit of more detailed evidence from the respondent’s new partner and from Donna Thiessen, long-time caregiver to the children, and this evidence sheds more insight into [M.M.D.]’s motivations and adamant desire to live with her father. [M.M.D.] told Mr. Prediger she hated her mother and was raised without love. Yet when [M.M.D.] calls her mother from the petitioner’s home, their conversations are typical affectionate chats between parent and child. It is only in matters where [M.M.D.] does not have her way that problem develops. Donna Thiessen was pleasant, matter-of-fact witness who has provided day care for [M.M.D.] and [L.C.D.] since Christmas of 1997. She has close and affectionate relationship with [M.M.D.]. [M.M.D.] candidly stated to her that the reason she wanted to move in with her dad was because mum had rules and curfews whereas at dad’s she could do pretty well as she chooses. Shortly before trial, Mrs. Thiessen saw [M.M.D.] crying on neighbour’s doorstep at 11:00 p.m. on Friday night. The house is frequently party location and she was concerned for [M.M.D.] but thought her interference might be resented. She feels [M.M.D.] is both precocious and impressionable and is apt to get into some trouble if not more carefully supervised. She has observed that when not with her mother, [M.M.D.] is apt to wear excessive makeup and clothes that display her navel. She is developing keen interest in boys. The respondent was quite aggrieved that Mrs. Thiessen had not informed him of the Friday night incident. Perhaps that oversight can be explained by the respondent’s rather rude dismissal when Mrs. Thiessen attempted to introduce herself to him early on, when she started looking after the children. He called the petitioner “fucking bitch” in [M.M.D.]’s presence and said he did not share his wife’s taste in babysitters. [29] Cheryld Backstrom was quite blunt in her assessment of [M.M.D.]. She says [M.M.D.] dresses inappropriately like her mother (although she had never met the petitioner in person). [M.M.D.] has had tantrums about doing dishes or having showers and it is Cherald’s view that [M.M.D.] “just wants to pick fight” or was “ranting and raving about half an hour about having to do dishes” and the respondent let it go little too long. She says [M.M.D.] is “allergic to water”. She mentioned time when [M.M.D.] was grounded for lying to both of them. One gets the distinct impression she is not taken with [M.M.D.]’s behaviour. [30] The respondent acknowledged he was squeamish about matters involving female development and hygiene and these matters are likely to be referred to his partner. That is concern, but relatively minor one. More significantly, the respondent acknowledged all three children should remain together. That is not an option if the respondent is given custody. The ruptures in his relationship with [T.B.D.] go far deeper than the differences between [M.M.D.] and her mother. In the father-son relationship, there is deep sense of emotional rejection on both sides whereas [M.M.D.]’s rifts with her mother are of more superficial nature. [T.B.D.] once had close bond with his father and it is loss he feels acutely. An order placing him in his father’s custody would be an invitation to disaster. The parties are urged to have [T.B.D.] participate in counselling, and possibly some joint counselling with his father in an effort to reconcile their differences. [31] The petitioner will have sole custody of the three children. The respondent will have access from Friday at 5:00 p.m. until Tuesday at 9:00 a.m. every second weekend. The children will continue to have their lunches at the respondent’s home on school days if the respondent can continue to accommodate this. The respondent will have reasonable telephone access to the children provided it is exercised prior to 9:00 p.m. The respondent will have access to the children for one-half of the summer, Christmas and Easter vacations and the mid-term break. [32] On the matrimonial property issues, the order of Noble J. should now be implemented and the property sold. As far as the division of the sale proceeds is concerned, the parties should be placed roughly in the same position they would have been in had the order of Noble J. been complied with. As the respondent stopped making the mortgagee payments after that order, but has continued to reside in the matrimonial home, I am of the view he should bear responsibility for the mortgage payments from July 1, 1998 until the date of sale and there will be a corresponding adjustment of the net sale proceeds in the wife’s favour. As well, the arrears of child maintenance as calculated by the Maintenance Enforcement Office to the date of sale should be satisfied from the respondent’s share of the sale proceeds. [33] Pursuant to the provisions of The Public Employees Pension Plan Act, S.S. 1996, c. P-36.2, the petitioner’s employment pension as at October 28, 1997 will be divided equally and one-half rolled over into an RRSP designated by the respondent. The parties’ RRSP funds will be divided equally and one-half rolled over to an RRSP plan designated by the wife. The parties will retain the furniture, household furnishings and personal effects currently in their possession. The petitioner will return to the respondent any hunting clothes or supplies in her possession, and one-half of the family photographs. [34] As to the loan from the respondent’s mother, the respondent says there was $3,000 outstanding at separation. The loan represents the ba[L.C.D.] of $5,000 down payment that the respondent’s parents advanced to allow the parties to purchase the matrimonial home in 1987. No repayments have been made in roughly 10 years and there were indications the parents had no intention to seek repayment until these proceedings were initiated. The debt itself is statute barred. At law, proceedings to claim debt must be initiated within six years of the date of the last payment. As noted in Russell v. Russell C.A. Docket No. 2760, September 17, 1999, Saskatchewan Court of Appeal, to the extent that The Matrimonial Property Act, 1997, S.S. 1997, c. F-6.2 permits an adjustment for debts, they must be legally enforceable. Accordingly, the mother’s debt cannot be considered legally binding on the petitioner. [35] The Credit Union mortgage and the line of credit will be paid from the proceeds of the sale of the matrimonial home. The only other debt is against the Chevrolet half-ton which the respondent acquired after separation and that debt is his sole responsibility. [36] Maintenance for the children is the last remaining issue. The respondent made no income disclosure until trial and the evidence regarding his 1999 income was unsatisfactory. His 1998 income, according to his T-4's was as follows: Canadian Corps of Commissionaires $9,588.83 Employment insurance 6,081.00 Lake Diefenbaker Potato Corporation 2,066.00 Total: $17,735.83 [37] The respondent also had renters in the house in 1998 who have sporadically paid him rent or given him gifts such as $680 stereo, in lieu of rent. consider the respondent could have obtained $250 or $300 per month had he rented out on more reasonable basis. If rental income of $3,000 to $3,600 was deemed to his 1998 income, his earnings approximate the $21,600 in annual income he was receiving at the time the maintenance order of December 19, 1997 was rendered. [38] For an undisclosed period of time, the respondent has worked for National Cartage/J.T. Trucking, driving truck on short and long distance hauls but the respondent was not inclined to produce any comprehensive details. He suggests his gross income is $1,000 per month although he can make $208 per day on trip to Calgary. In the absence of satisfactory confirmation of his earnings, the prior maintenance award of $405 per month will remain in effect. [39] I make no order for day care costs, again due to the absence of adequate proof as to what was incurred, either through the submission of receipts, cancelled cheques or other documentary evidence, and the absence of proof as to whether the services were required due to the mother’s employment or other reasons. The net after-tax cost of day care has also not been calculated. The petitioner did not provide full copy of her 1998 return and it is therefore unknown what amounts, if any, were claimed in that taxation year. The petitioner is not precluded from returning that issue, on more comprehensive evidence. Likewise, the respondent is not precluded from having review of his maintenance obligation conducted if he produces the necessary income information. [40] There will be a judgment for divorce, to be made final on the expiration of thirty-one days. [41] The petitioner will have her costs of the proceedings, to be taxed.
Custody, child support and division of matrimonial property were in dispute. The mother was awarded interim custody of the three children in 1997. The father was ordered to pay child support of $405 per month but had made only one voluntary payment of $100. He agreed to abandon his appeal of the order for sale of the matrimonial home. He had been unable to obtain financing to buy out her share. The father, unrepresented by counsel, sought to have selected portions of 14 hours of taped telephone conversations with the children and wife admitted into evidence. He insisted the tapes were of central importance to his case; that they discredited the conclusions of the custody and access report and demonstrated abuse was occurring in the mother's home. HELD: 1)Sole custody was awarded to the mother. The father was to have access Friday from 5:00 p.m. until Tuesday at 9:00 every second weekend. 2)The tapes were admitted in their totality, unedited. The two lines of cases respecting the admission of audiotapes in a custody hearing were reviewed. The tapes had the opposite effect to the father's intent. The father 'alternatively interrogated the children about their mother; prompted them to make unfavourable comments about her; magnified every incident of childish squabbling into a crisis; magnified the children's distress over the marital breakdown, encouraged the children to run to his home at every opportunity; and generally undermined the mother's parental authority at every available turn.' The petitioner's depression had been ascribed to environmental stresses rather than innate. The father acknowledged that his drinking had lessened but not discontinued as he suggested in the custody and access report. 3)The property was to be sold. The father was responsible for mortgage payments from July 1998 until the date of sale as he had stopped making mortgage payments after the previous order while continuing to reside in the home. A corresponding adjustment in the net sale proceeds was to be made in the wife's favour. Child maintenance was to be satisfied from the father's share of the sale proceeds. 4)The mother's employment pension was to be divided equally and one half rolled into an RRSP designated by the father. RRSP's were to be divided equally. Furniture, furnishings and personal effects in their possession would be retained by each party. Hunting clothes or supplies and one half of the family photographs were to be returned to the father. The loan from the respondent's mother was statute-barred. No repayments had been made in 10 years. The debt for the half ton acquired after separation was the father's sole responsibility. 5)The prior order of $405 for child support remained in effect. The father made no income disclosure until trial and evidence of his 1991 income was unsatisfactory. Rental income was deemed to his 1998 income. No order was made for day care costs due to inadequate proof. The parties could seek a review if more comprehensive evidence were produced. 6)Judgment for divorce would be made final on the expiration of 31 days.