R.D. LAING REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB 144 Date: 2015 05 20 Docket: FLD 423 of 2012 Judicial Centre: Saskatoon PETITIONER RESPONDENT BY COUNTER-PETITION RESPONDENT PETITIONER BY COUNTER-PETITION Counsel: Sherry L. Fitzsimmons for the petitioner Davin R. Burlingham for the respondent JUDGMENT KEENE J. May 20, 2015 Introduction [1] The petitioner [M.D.J. or Ms. J.] and the respondent [C.W.S. or Mr. S.] met in late August 2009. This quickly developed into an intimate relationship. Ms. J. discovered she was pregnant in early October 2009. Shortly after that Mr. S. moved in with Ms. J. at her house in Warman. Their child Z.P.J.S. [Z.] was born in June 2010. The parties separated on November 28, 2012. Ms. J. is presently 37 and Mr. S. is 43 years of age. II Pleadings and Proceedings [2] Ms. J. issued her petition December 3, 2012 claiming under The Children’s Law Act, 1997, SS 1997, C-8.2 [Act], sole custody of Z., specified and supervised parenting time for the respondent, restraining order against Mr. S. and costs. [3] Mr. S. filed his Answer and Counter-Petition on January 9, 2013 contesting Ms. J.’s claims for sole custody, specified and supervised parenting time, the request for restraining order and costs. He counter-petitioned, claiming division of property under The Family Property Act, SS 1997, F-6.3, joint custody of Z. with primary residence of Z. to be with himself and access for Ms. J., child maintenance for Z. under The Family Maintenance Act, 1997, SS 1997, F-6.2, and costs. Mr. S. filed an Amended Answer and Counter-Petition on April 10, 2013 requesting maintenance for himself under The Family Maintenance Act, 1997. [4] Ms. J. brought Notice of Application on December 12, 2012 requesting the return of Z. from Mr. S. This application had been preceded by two applications without notice to abridge time and to deal with service issues. The December 12, 2012 application resulted in the Court ordering Z. to be placed in the interim care of Ms. J. and Mr. S. to receive parenting time. The case was adjourned originally to January 4, 2013, but ultimately the interim application was heard before Dufour J. on January 25, 2013. large amount of conflicting affidavit material was filed. Justice Dufour decided that because of the conflicting evidence he would direct the parties proceed to an expedited pre-trial conference. In the meantime, the Court directed that the parents would have Z. on shared week-on/week-off basis. Justice Dufour ordered that Mr. S.’s mother be present during overnight access. [5] pre-trial conference was held on April 29, 2013 which resulted in provisional agreement to essentially tide things over until trial could be held. This interim agreement provided: Z.’s primary residence would be with Ms. J. and Z. would be in her care for period of nine overnights. Z. would be in the care of Mr. S. for period of five overnights (Tuesday to Sunday) when Mr. S. had his children T. and S. (children from previous relationship) in his care. Psychological counselling was to be undertaken by both parties with the duration of the treatment to be determined by the psychologist. Ms. J. agreed not to request child support from Mr. S. during the six months of the agreement. Exchange protocol and supervised overnight access would remain as per the interim orders. The agreement would remain in effect for six months. [6] The case was to proceed to trial. In the meantime, the parties appeared to have continued to follow the combination of interim orders granted and the minutes of settlement. The trial was commenced on March 16, 2015 and was completed on March 27, 2015. On the last day of the trial (March 27, 2015) Mr. S.’s counsel advised the Court his client was abandoning his claim for spousal support. However, would not have found he was entitled to such support in any event (based on the short duration of this relationship and his income) and will formally dismiss that claim for spousal support. III Evidence on Behalf of the Petitioner, M.D.J., regarding parenting, child support and common-law relationship Evidence of the Petitioner, M.D.J. [7] Ms. J. is 37 years of age. She lives in her home in Warman and is successful real estate agent. She met Mr. S. at the end of August 2009. At that time she was ending relationship. She had no children. [8] Ms. J. and Mr. S. had an instant attraction and started dating, and by October of 2009 she was pregnant. She testified that she did not want to get pregnant and had not made any plans with Mr. S. to get pregnant. In November 2009 Mr. S. moved into her home. According to Ms. J., he had virtually nothing. Mr. S. told her that he was going through divorce with “Lisa”, and that he had two young children (T. and S.) from previous relationship. Ms. J. was willing to let Mr. S. have T. and S. stay at her house while he had parenting time. Mr. S. spoke very negatively about T. and S.’s mother, P.B. [9] Christmas 2009 arrived. Mr. S. tried to give Ms. J. ring. She rejected it because she did not wish to be married. The parties decided to drive (in Ms. J.’s car) to see her parents for part of the Christmas holidays. Her parents live on farm about one hour outside of Winnipeg. Mr. S. brought his two young children, T. and S., with them. Unfortunately, while they were staying at her parents’ place, Mr. S. got drunk. Ms. J. testified he became extremely agitated when she told him she would like to have friend attend during her delivery. According to Ms. J., he became verbally abusive, calling her terrible names in front of her family. She says that he then stated he was packing up and leaving on foot with his two children to walk to Winnipeg. It was nighttime and winter. Ms. J.’s father, H.J., intervened. Ms. J.’s sister M.E.J.J. offered to drive Mr. S. and his two children to motel in Winnipeg. Ultimately Mr. S. agreed to this. M.E.J.J. drove them to Winnipeg. After 16‑hour bus drive back to Saskatoon, Mr. S. went to live at his mother’s residence. Ms. J.’s father encouraged her to end the relationship. [10] However, by January 20, 2010 the parties had reconciled, and Mr. S. was once again living in Ms. J.’s house in Warman. [11] Z. was born in June 2010. Her evidence indicates it was happy time. birth announcement was circulated. The baby was baptized in the Catholic faith. [12] Ms. J. testified that Z. became her priority. She adjusted her previous busy real estate career to level that accommodated Z. first and her career second. She took time off from work, and when she returned she was able to work at home for the most part. Her major client is developer in Warman, and she was able to balance looking after Z. and her career because of the good fortune of having this association with the developer. [13] Ms. J. testified that Mr. S. was not working because of workplace injury when she met him. This continued throughout the relationship. He was receiving Worker’s Compensation benefits [WCB] and top-up from SaskTel. She said he was in constant pain. It appears his neck was permanently injured. Ms. J. said that during her pregnancy and after the birth of Z. and right up to their separation, Mr. S. was constantly using pain medication. She said these medications and his pain caused him to nap lot and take it easy most of the day. According to her, Z.’s care fell almost exclusively to herself. [14] Things progressed in this manner with Ms. J. primarily caring for Z. and Mr. S. on disability and essentially being lethargic throughout much of the day. However, on occasion he appears to have undertaken number of under-the-table jobs for friends doing odd jobs and furnace and plumbing work. She noted he did some minor renovations in the house. She testified that he was quite moody and became irritated quickly when caring for T. and S. and at times Z. Ms. J. said he spent lot of time at his mother, M.S.’s, house in Saskatoon. [15] The couple had circle of friends. People came over for barbeques. They went out to friends’ homes. [16] Ms. J. broached the subject of cohabitation agreement with Mr. S. This appears to have become topic in 2010. She went as far as to get lawyer to draft an agreement. Mr. S. took the draft to his lawyer. However, he refused to sign it. Ms. J. says he became angry when she brought it up, and she finally gave up. [17] There was flare-up on Halloween night in 2010. The couple went to party. Arrangements were made to have Mr. S.’s mother babysit Z. Ms. J. testified she was simply enjoying herself at the party when Mr. S. suddenly became jealous. He left and went back to his mother’s. She and friend followed. confrontation erupted at the mother’s. Mr. S. would not let Ms. J. take Z. back to her house. The police attended. Ms. J. left without Z. The next day the couple reconciled, and Mr. S. again returned along with Z. to Ms. J.’s home in Warman. [18] Life went on. It appears Mr. S. provided some money to Ms. J. by way of what the parties referred to as rent. He was to pay $600. This was infrequently paid. Ms. J. noted that Mr. S. continued to be moody and impatient, especially when T. and S. came to visit. She became concerned about Mr. S.’s use of foul language, and he seemed to have no filter about crude comments. She became concerned because this was going on in front of Z. Ms. J. testified that Mr. S. was stressed out over money, his lingering divorce issues with Lisa, and his rather nasty parenting issues regarding T. and S. with their mother, P.B. Ms. J. noted high level of hostility exhibited by Mr. S. towards P.B.; hostility that he made no attempt to shelter his young children T. and S. from or for that matter Z. In order to deal with this, Mr. S. arbitrarily reduced his parenting time with T. and S. to every other weekend from an existing more lengthy parenting schedule. Ms. J. noted this did result in less stress for Mr. S. [19] According to Ms. J., she continued to be primarily responsible for Z.’s care and more so after Mr. S. had neck surgery. Additionally she testified she assumed most of the care for T. and S. when they came over. She noted Mr. S. found discipline issues difficult. Mr. S. seemed to get frustrated and angry easily. According to Ms. J., he never did any homework with his two children. She noticed Mr. S. developed quick temper with Z. [20] Ms. J. testified that the parties separated on November 28, 2012. On that evening they had arranged with Mr. S.’s mother to babysit Z. while they and group of friends went to rock concert. Mr. S. was the designated driver (of Ms. J.’s car). According to Ms. J., Mr. S. became jealous at the concert. He blew up, started yelling at her and calling her names in front of their friends and in the general public. She became frightened. He left the concert and drove to his mother’s home in her car. She decided that based on the last episode (Halloween 2010) there would be no point in having another confrontation at his mother’s residence, so she decided to go home and deal with Mr. S. the next morning. This time she decided that she needed to end their relationship. [21] Ms. J. testified that she telephoned Mr. S. the next morning principally to try and get Z. Mr. S. refused. The parties then resorted to communicating exclusively via text messages. Exhibit P-95 sets out the exchange. It starts on November 29, 2012 at 12:48 p.m. and ends December 8, 2012 at 6:42 p.m. find that this is important evidence, and set it out as follows (note: A. refers to their pet dog): Nov 29, 2012, 12:48 PM [Mr. S.] [Ms. J.] Can phone you? Not right now call me when you can Is it urgent? Not urgent How’s z. doing? I’d like to see him soon. Ur kidding me right Why would be kidding I’ll call you later Can you get some of my things and Z.’s things together for tonight please Yes can. can bring in your things. Ill put your pills in there too. do want to see him today. Z.’s stuff too Ok? Ya ill have stuff for Z. too Ya ok Not till about 8;30 Can see him when drop stuff off? Thanks Nov 29, 2012, 6:24 PM Can you bring the computer? Yes will bring it can come sooner to drop stuff off and see You can take A. home Ok thanks Do not come here Don’t text or call until after the weekend, you can see him then You changed the locks and couldn’t even tell me, nice work So you locked Z. and out of the house! Wow Nov 30, 2012, 6:57 PM think you should pop by tommorow and see the kids. Think about it if you want and let me know tommorow k? Dec 1, 2012, 7:55 PM If you wanna pop by tomorrow ,give me heads up. Dec 2, 2012, 5:32 PM Guess you’re not wanting to see the kids, give me text or call when you’d like to see them. Dec 4, 2012, 12:15 PM You have had Z. for while can come pick him up for couple of days. Dec 4, 2012, 3:09 PM You asked me not to call you or text you until after the weekend. would appreciate response. texted you during the weekend to come see the kids and you know it You said visit the kids. want to see Z. and you wanted time with him. Until this is figured out why won’t you share him and let me take him for few days. If you would like to see him, we can arrange time here at moms for now. don’t just want to see him want to have him with me for few days. You wanted him with you and respected that you said until Monday. can pick him up from your moms please. know you were upset and was giving you time. Given your state of mind think it would be best If you came to see him here. There is nothing wrong with my state of mind. I’m just concerned that you are holding him from me and don’t want to get you mad. Given the situation don’t think the tension between us is good for Z. to be around and it’s best if we spend time with him separately. Let me know time if you’d like to see him. can come pick him up from your moms for few days. can come anytime today to pick him up. How about pm? Dec 5, 2012, 1:54 PM We need our things put together and sent over before anything else occurs .We have been locked out. Dec 7, 2012, 9:52 AM C. can’t believe you are keeping Z. from me. had Amd. drop off your things like you asked. have not seen him for days. Your not looking out for Z.’s best interest. When can come see him. want our things like asked,let me know when our things are coming.thanx Why would you hold Z. from me until you get all you things. All your personal effects are there have done everything you asked. would never have done this to you. Please let me see him. No you haven’t,u gave me some of my clothes Now that you’ve started court proceeding, you can speak through my lawyer Fine who is your lawyer? How does this benefit Z.? How does locking us out help him? Who is your lawyer? Tell you Monday have right to see Z. before then. You said you were getting lawyer this past Monday Dec 7, 2012, 5:08 PM Can you please call me and let me speak to Z. on the phone Dec 8, 2012, 4:02 PM You could call later, but Z. does not want to speak with you.We do need our things What day do you plan to get it to us? You were supposed to take A. twice now and haven’t either. do want to speak with Z. does 6:00 tonight work for me to call? Can you please ensure that Z. is available at that time to talk with me. If this time does not work what time this evening would? When are you getting A. and when is our stuff coming? I’m asking about talking with Z. that is my concern right now. Amd. was supposed to get A. both times Nd she didn’t. told her to pick him up as you asked. Take some responsibility,stop blaming others.When? When can talk with Z. please? Answer my question will have A. picked up later this upcoming week. have dropped off nearly all your personal items and am working on having your other things packed up. will drop them off as soon as possible this upcoming week. Neither of these issues have anything to do with me seeing or speaking with Z. Does pm tonight work for me to call and talk with him or what other time this evening does? You brought some of my clothes, none of my papers,cell phone,passport, and other things.A. can get dropped off tommorow ,what time? Dec 8, 2012, 6:42 PM My lawyer said she will have your personal papers, passport, etc couriered to your lawyers office on Monday once you provide the name of your lawyer. What time is good for me to call to talk to Z. tonight please? ve asked numerous times for my things,you haven’t made an attempt. Is your lawyer picking A. up tommorow You said you were calling at 6,Z. is nappin right now Call in the am,@. 10:30 is good asked you if could call at and you never responded. will call him at 10:30 in the morning tomorrow will call your moms home number. will let you know tonight who will pick up A. tomorrow. What is good time? You can pick A. up at noon would like my phone tommorow when that person picks up A. at 12 noon Call at pm tommorow ,we have breakfast plans We will be at moms by Can come to your moms at tomorrow. will pick up the dog and then can see Z. at the same time. Not until see my lawyer.i want my things tommorow please, they aren’t big items can come pick him up from your moms for few days. can come anytime today to pick him up. How about pm? Let me know time if you’d like to see him. just did will come at then to pick him up. No you won’t pick him up, you may visit him And tonite does not work,tommorow at for visit here is fine [22] Ms. J. testified the parties have not spoken since. All communication goes through their lawyers. [23] Ms. J. stated that immediately after November 28, 2012 she changed the locks on her house and installed video surveillance cameras. She expressed fear of Mr. S. [24] Ms. J. testified that Mr. S. kept Z. (who was about years of age) for almost two weeks. She testified that when she was reunited with Z. he was very emotional, grabbing her and hugging her. She stated he would not leave her side. In short, she testified the child clearly missed her greatly and was overjoyed to see her. [25] Ms. J. testified that the parties followed Justice Wilkinson’s order of December 12, 2012. On February 7, 2013 Justice Dufour ordered interim shared custody. Ms. J. stated that following the week-on/week-off regime she noticed that Z. started to say disturbing things upon his return from his father. According to Ms. J., such comments, although seemingly diminishing now, continue to degree. find that her counsel has accurately summarized these verbalizations in the petitioner’s trial brief (pps 16-18), and for convenience repeat the same here: “Know what? When was baby daddy took me from you? He said you were bad mommy and he will protect me.” “You like baba but you don’t like daddy.” “Daddy said that T., S. and him all lived in this house with us. We were family.” “We used to be family but mommy doesn’t love us anymore.” “Know what mommy? Daddy doesn’t work cause he got cut with knife in his throat so now he just eats his pills.” “Daddy said you’re witch.” “Daddy says Mommy is mean.” “Daddy says you stole all his money.” “Daddy says Mommy stole his motor home that’s why we can’t go camping.” “Daddy says he’s not allowed to go to football games so shouldn’t go.” “Daddy says we aren’t going to have stuff. Daddy hired lawyer guy and he going to take all your things and all your money mommy.” “Daddy said he would take me skating but you stole my skates so he can’t.” “Daddy says we don’t have lots of things cause you stole everything from daddy.” “Why is your face going to bleed? Dad says when he cuts it your face it will bleed.” “Daddy says die bitch die.” “Daddy doesn’t like you.” “Mommy are you going to be an angel when you die? (The Petitioner responded with “I’m not going to die”.) “Yes daddy said he is going to kill you and I’m going to live with him and you will be dead.” “Aunty L. is bad. Daddy doesn’t like her.” “I don’t like Aunty L.” “When was baby Aunty L. had dog and it but [sic] me in the face was bleeding lots.” “I’m scared to go to Jamaica.” “I won’t go in ocean shark might eat me.” “The house is haunted daddy said there are ghosts here they are going to get me.” “Daddy says there are bad people in Warman.” “Daddy says this is where bad people live.” “Daddy doesn’t like R. he is mean guy and he doesn’t like me.” “Daddy said R. likes you not me.” “Daddy said we can be family but you like R. not him.” “I’m going to St. Paul’s school cause Warman school is stupid.” “Daddy said kids at Warman school are stupid.” “I don’t like activities.” “Mommy why did you dress me like girl. Daddy said you wanted girl so you dressed me like girl.” “Daddy doesn’t like P.” “Daddy said that Mommy kicked us out of the house.” “Daddy said that Mommy doesn’t love me or daddy.” “I don’t like L. he is bad kid” (This is D. and R.’s child and Z.’s good friend) “I don’t like O. Daddy says he doesn’t like O.” (J. and Amd.’s girl) “I don’t want to go to Manitoba.” “I’m going to have Christmas with daddy won’t be with you I’m going to be with him you will be all by yourself (since the summer up till Christmas 2014)” “Daddy can’t have birthday for me because you don’t let him.” “Daddy says you don’t love me.” “Daddy says he is going to take the hot tub and we have it at babas.” “Daddy is building us house for daddy T. me and S. and then won’t live with you anymore.” “I need to stay at daddy’s cause if don’t daddy is sad.” “Daddy and baba cry if come home to you mommy.” “Mommy are you strong enough to open the door? I’m scared to get locked in and can’t get out.” “Daddy said should wish for my mommy and daddy to be together when make wish.” “I don’t want to go in hot tub daddy doesn’t have hot tub.” “Daddy only has me days that’s not fair to daddy he needs more days it’s not fair.” “Daddy said shouldn’t play with R.” “Daddy says R. bad guy.” “It’s not fair daddy doesn’t have pool.” “I have cut now can’t go swimming daddy said no going in the pool.” “Know what mommy fell off the bunk bed daddy said not to tell you.” don’t want to go to Ak. and Ai.’s Daddy says they are bad.” “I don’t like taekwondo.” “Daddy has no money because of you.” “See this area daddy said when we were family you walked with me and seen bunny here that’s before you kicked us out.” [26] After their separation, Ms. J. became good friends with T. and S.’s mother, P.B. P.B. actually works with Ms. J. and lives in Warman. As result of this friendship, T. and S., along with their older sibling K., and P.B. are often guests at Ms. J.’s house. This allows Z. to have relationship with his two siblings while he is in Ms. J.’s care. Ms. J. states that she has good relationship with T. and S. [27] Ms. J. provided evidence that she has been responsible for registering Z. in preschool in Warman, sporting activities and playdates. She testified that she arranges the activities so that they are scheduled on days that do not conflict with Mr. S.’s time with Z. She reads with him in the evening. In short, she has been very active and involved parent. large number of photographs were entered into evidence depicting the child’s activities, her house, school projects, etc. Ms. J. carefully narrated the book of photographs for the benefit of the Court. She set out in detail his life with her, including Z.’s relationship with her new partner R. She depicts her house and community as comfortable and familiar to Z. The school is close at hand. She has made all the dental and public health immunization visits. The child has had extensive dental care that she has paid for. Ms. J. testified that she makes all such appointments on her time to avoid conflict with Mr. S. [28] Ms. J. describes Z. as an active, athletic, intelligent child who does well with other children. Ms. J. says he likes school. However, she expressed concern that Z. needs several days to readjust after returning from his visits with his father. Apparently Z. reeks of tobacco smoke and needs bath to remove the odour and his clothes must be laundered. He is still clingy upon his return from his father’s. Sometimes Z. expresses dislike for what are his favourite activities upon his return. Ms. J. expresses concern over this. [29] Z. was enrolled in two preschools, one at Warman and also one in Saskatoon that Mr. S. arranged for. It seems that Mr. S. insisted on the Saskatoon preschool and would not drive Z. to the Warman preschool. Ms. J. exhibited series of school-based artwork and crafts. Z. references his love for his mother in his drawings. Nothing is mentioned about his father in the artwork. [30] Ms. J. testified that she has enrolled Z. in kindergarten at the Warman school for this fall. These are full days (yet to be determined by the school), but will be either: Wednesday Every other Friday Thursday Every other Friday [31] Ms. J. testified that when she found out that Z. had been registered at preschool in Saskatoon by Mr. S. she called the school to introduce herself. She was advised by the school representative that the school had no record of mother or contact information. She testified that she had good conversation with the school representative, told her about Z.’s enrollment at the Warman preschool and invited the school to contact the Warman preschool if they wished to. [32] Ms. J. testified that whether it was Justice Wilkinson’s order, Justice Dufour’s order or the parenting agreed to at the pre-trial conference, she has done all of the driving for the exchanges. She notes that on one occasion because of delayed flight she could not pick Z. up at the agreed upon time from Mr. S.’s mother’s residence. She tried to have trusted adult that Mr. S. was quite familiar with pick up Z. Mr. S. refused and kept Z. overnight until Ms. J. could pick him up the next day. [33] Ms. J. stated that when she and her partner, R., and Z. wanted to go on holiday she needed Mr. S.’s cooperation to obtain passport for Z. He was uncooperative. She had to start court application, and ultimately Mr. S. agreed. She testified that despite the agreement at the pre-trial conference, psychological counselling never did take place. Ms. J. states her lawyer attempted to arrange for the psychological help, but Mr. S. essentially thwarted the process. Further, Ms. J. testified that it took lot of time and many lawyer letters to get Mr. S. to make arrangements to receive his and his children’s personal effects out of her home. She expressed considerable frustration at the difficulties involved with Mr. S. to resolve even the most mundane of family law issues. [34] She testified that Z. continues to be anxious as the exchange time approaches. [35] Ms. J. proposed sole custody and supervised access (i.e. Mr. S.’s mother to be present for overnight visits) of every other weekend, exchanges to take place at his mother’s residence without Mr. S. being present and the sharing of all school-based holidays and time in the summer. [36] Ms. J. was cross-examined. She denied that there was any discussion between Mr. S. and herself when they first started dating to determine her ovulation cycles for the purpose of her getting pregnant. She stated she had not even had “cycle” when she discovered she was pregnant in the first part of October 2009. [37] During cross-examination Ms. J. agreed: She bought Mr. S. presents. They shared the same bed and ate meals together. They jointly sent out Z.’s birth announcement (featuring picture of all three). She participated with Mr. S. in Z.’s baptism and agreed to raise Z. as Catholic. She allowed Mr. S.’s child S. to call her “mom”. She called Mr. S.’s mother “baba” and sent her Mother’s Day card. She visited Mr. S.’s father in nursing home. She and Mr. S. regularly attended family functions as couple. She and Mr. S. regularly visited and entertained friends as couple. Mr. S. did some of the cooking. Mr. S. and herself sometimes would go shopping together. No one asked for any reimbursement for the payment of groceries. When Z. was born, T. and S. thought of Z. (and were encouraged to do so) as their brother. Her 2009, 2010 and 2011 T1 general tax returns identified her relationship with Mr. S. as common-law. Mr. S. helped her with her rental properties. Through WCB Mr. S. arranged for housecleaning of the residence. She went with Mr. S. to WCB and medical appointments. The told each other on regular basis that “I love you”. They went along with Z. on Mexican holiday. They were faithful to each other. [38] Ms. J. was cross-examined regarding her work hours. Ms. J. calculated that at present she is working about 14 to 20 hours per week. Of that she said she was out of the house approximately seven hours per week. [39] Mr. H. is Z.’s taekwondo instructor. He testified Z. is nice boy who enjoys taekwondo. Ms. J. and her partner attend at the activity regularly. [40] M.E.J.J. is the adult sister (and only sibling) of Ms. J. She testified about the Christmas 2009 visit at her parents’ farm by Ms. J. and Mr. S. and his young children T. and S. She described Mr. S. getting drunk and then losing his temper with Ms. J. This was in front of her father and mother and herself. Mr. S. was screaming at Ms. J. and calling her very vulgar names. He said he was packing up and heading out on foot with his two small children in the dead of winter night for Winnipeg. His children became upset and were crying. She told him that she would drive him and his children to motel in Winnipeg. On the way there she attempted to soothe the two children. Mr. S. seemed to be oblivious to the children’s plight. Overall she was shocked by Mr. S.’s conduct. [41] M.E.J.J. testified that when she saw the parties’ parenting before the separation it was mostly her sister who attended to Z. Mr. S. seemed to be in constant pain. She noted Mr. S. swore lot and at times made lewd comments in front of Z. [42] M.E.J.J. described Ms. J. as being very active, nurturing and loving mother. [43] H.J. is the father of Ms. J. He testified about the Christmas 2009 visit which was the second time he had seen Mr. S. H.J. confirmed that Mr. S. ended up getting drunk. He said that Mr. S. was angry and directed very insulting and vulgar language towards his daughter. He was shocked and disturbed by this behaviour. He confirmed that Mr. S. said he was leaving with his two children on foot. He confirmed that his daughter M.E.J.J. drove Mr. S. and T. and S. to Winnipeg. He noted his daughter Ms. J. was very upset. He advised her to leave Mr. S. [44] H.J. and his wife visited the parties after the birth of Z. They continued to see Ms. J. and Z. at this time. He described his daughter as the main parent and good mother. He noted that Mr. S. had limited role in the parenting of Z. while the couple were together. H.J. testified that Mr. S. seemed to be in pain and took lot of painkillers. H.J. noted that Mr. S. used vulgar language around Z. [45] Mr. B. is the owner of the real estate business that Ms. J. works at. He describes how Ms. J. has been able to balance her work life and looking after Z. His business supports family values and the need to balance work with family. [46] R. is Ms. J.’s partner, and they have been residing together since August 2012. He is divorced but maintains cordial relationship with his previous spouse. R. has two teenage daughters that he sees through regular access. The two daughters enjoy Z. and have positive relationship with the child. [47] R. described Ms. J.’s parenting. He says she is concerned and attentive mother providing Z. with love and encouragement. As couple they do many things with Z. Overall he describes Z. as nice child. However, he has noticed that Z. says odd things such as that his dad has said there were ghosts in their house. This makes Z. afraid of the dark. He confirms hearing many of the disturbing utterances set out above. [48] R. noticed Z. is withdrawn for few days after seeing Mr. S. It takes time for the child to return to his usual outgoing self. He says that the child smells of cigarette smoke and cologne when he returns. [49] R. confirmed that Ms. J. has been able to maintain good balance between work and parenting Z. He testified she primarily works at home or in Warman. [50] Ms. P. is long-time friend of Ms. J. and has visited her on many occasions, both before and after separation. These are fairly lengthy visits of two or three weeks. She testified that Ms. J. is good parent. [51] Ms. P. noted that Mr. S. slept lot, waking around 11:00 a.m. He would take his pills, have lunch and then take nap. Mr. S. would then wake up for supper. He appeared to be in lot of pain. Ms. P. testified Mr. S. swore lot around not only his but also her young children. She testified that Mr. S. would get frustrated easily and yell at Z. [52] She testified to hearing Mr. S. openly insult T. and S.’s mother (P.B.) in front of them. [53] Throughout the pre-separation contact she had with the parties she said Ms. J. was the primary parent. Since the separation she has noticed positive change in Z. The child seems better adjusted and has fewer tantrums. [54] Ms. W. is friend of Ms. J., having known her for about nine years. She testified that after Z.’s birth she saw Ms. J. about once month. Ms. W. testified that Ms. J. did the actual parenting of Z., and Mr. S. seemed to only play with him. She testified that Mr. S. would say negative things about T. and S.’s mother (P.B.) in front of them. [55] Ms. W. testified that since the separation it seems Z. has started to behave better. She confirmed hearing Z. say some of the disturbing things related above upon his return from Mr. S. However, her evidence was that Z. was not saying these things as much now. Her thoughts were that as Z. was getting older his behaviour was getting better. [56] She testified that Ms. J. is good mother, and Z. gets along very well with Ms. J.’s partner, R. Ms. W. noted that Ms. J. seems to be able to balance her work and parenting of Z. [57] Mr. P. is the husband of Ms. P. He confirmed that when they visited before the separation Ms. J. was mostly responsible for Z.’s care. He also testified that Mr. S. got up late and napped lot. He supports Ms. J. as good parent. In cross-examination he agreed that he had no concerns about Mr. S. babysitting their young children from time to time when they visited. [58] Ms. C. is long-time friend of Ms. J. and Z.’s godmother. She testified that after Z.’s birth Ms. J. did most of the parenting. She noted Mr. S. slept lot. [59] After the separation Ms. C. has noted that Z. says disturbing things upon his return from his father (such as “mom’s witch” “mommy bad”) and confirms some of what Ms. J. has said up above in this regard. Ms. C. was disheartened by these utterances. She also noted Z. smells of smoke and cologne upon his return. She testified that even as recent as month ago Z. still was saying, “Daddy says there are ghosts in the house”. [60] Ms. C. is fellow real estate agent. She testified that Ms. J. has been able to balance successful real estate career and still prioritize parenting. She testified that for the most part Ms. J. is at home with Z. [61] Ms. C. describes Ms. J. as very involved, loving and caring parent. Ms. J. and Z. do crafts, colouring and other creative activities. She describes Z. as well-rounded little boy, smart and intuitive and generally well behaved. She notes that R. has good relationship with Z. [62] P.B. is the former partner of Mr. S. and mother of T. (age 11) and S. (age 9). She has an older son K. (age 13) from previous relationship. P.B. is real estate agent who not only is Ms. J.’s friend, but also co-worker. She and her children live in Warman. [63] P.B. testified that she and Mr. S. started dating in 2002. At that time Mr. S. was in the process of divorcing his wife “Erin”. P.B. and Mr. S. ended up living together, having T. and S. and then separating in 2005. [64] P.B. said they separated when she was pregnant with her daughter S. At that time she believed Mr. S. was dating “Wendy”. However, sometime after this Mr. S. married “Lisa”. According to P.B. this relationship lasted with Lisa about years. She notes his next relationship was with Ms. J. [65] P.B. testified Mr. S. verbally and physically abused her. She described her property being destroyed or being damaged by him. She stated that she had to seek medical care for injuries caused by his physical violence. She outlined list of problems she has experienced with Mr. S. These range from child support issues to trying to serve him with court papers to his unwillingness to cooperate in any meaningful manner with the parenting of T. and S. She pointed out that she diligently provides him with schedules of their activities, which he ignores. This ends up upsetting the children. She exhibited series of text messages (P-86) verifying her attempts to communicate these schedules to Mr. S. She testified that she has to proceed through the courts to get anything done. He has resorted to what she testified to be false accusations by reporting her to the police and social services regarding her care of T. and S. These complaints have been investigated, but were found to be groundless. She described the last eight years or so as “living hell”. P.B. indicates that the exchanges with Mr. S. regarding T. and S. do not go well. These exchanges take place at McDonald’s restaurant parking lot. On one occasion she tried to serve him with court documents, and he was difficult. [66] P.B. testified that her motivation in testifying on behalf of Ms. J. was to try and save Z. from what she perceives to be the considerable damage done to T. and S. by Mr. S.’s conduct. She notes that Z. has high anxiety, similar to her own children. She testified that the source of this anxiety appears to be Mr. S. [67] P.B. testified that Ms. J. has opened her house to not only herself but all three of her children. She testified that her children K. and T. and S. like Ms. J. [68] She describes Ms. J. as loving and attentive mother to Z. IV Evidence on Behalf of the Respondent, C.W.S., Regarding Parenting, Child Support and Common-Law Relationship [69] Mr. S. has training in sheet metal work and furnaces and air conditioning. He hurt his back in 2008 at work. He applied for and received benefits from WCB. Mr. S. received surgery for his injury. He then obtained employment at SaskTel doing lighter work. Mr. S. testified that he had another work-related accident, apparently shortly after starting at SaskTel. He stated he re-injured his back. Mr. S. is now not working and is receiving WCB and what he describes as top-up from SaskTel. He received further surgery on his neck while living with Ms. J. Mr. S. has been off work since his SaskTel injury. [70] Mr. S. testified that he met Ms. J. in August 2009, and they started seeing each other immediately. Ms. J. told him she was just getting out of relationship. He stated that they started talking about having children. Mr. S. advised her that he had two children (T. and S.). He testified that they talked about marriage but acknowledged both did not want to get married at that time because of their past relationship issues. [71] Mr. S. testified that Ms. J. and he started consulting an ovulation chart within the first 30 days of their relationship. [72] Mr. S. stated that within week of knowing each other they were staying together at Ms. C.’s residence while Ms. J.’s ex-boyfriend moved his things out of her house. He testified that by the end of September 2009 he had started to move his things into Ms. J.’s home in Warman. Ms. J. announced her pregnancy in October 2009. [73] Mr. S. testified he offered Ms. J. ring at Christmas in 2009, but claims that it was misconstrued. He said there was no talk of marriage. [74] He related the Christmas visit to Ms. J.’s parents’ home in Manitoba. Mr. S. initially denied drinking. Mr. S. acknowledged that there was an argument over the selection of the name of their unborn baby and having Ms. C. participate in the delivery room. He testified that he was deeply hurt by this and started crying. He denied saying he was going to walk to Winnipeg. Mr. S. then acknowledged having couple of drinks that evening. Mr. S. said Ms. J.’s sister, M.E.J.J., offered to give him ride. He denies his children T. and S. were upset. He testified M.E.J.J. did give him and his children ride to hotel in Winnipeg, and they took bus to Saskatoon the next day. He said because his back was sore from the bus ride he stayed at his mother’s house for few days. He and Ms. J. reconciled, and he moved back into her home. [75] Mr. S. testified that he did everything he possibly could to help Ms. J. during her pregnancy and was with her in the delivery room. [76] He emphasized the importance of raising Z. as Catholic. [77] He stated that after Z.’s birth he shared in the child care duties and denied sleeping late or lot. He said he woke in the middle of the night to feed what he described as heated-up mother’s milk to Z. [78] Mr. S. said that after the first six months Ms. J. went back to work, and it fell to him to do most of the care. He said he sometimes went to see his mother with Z., but not very much. Mr. S. noted that Ms. J. seemed to be working full time. He often made the breakfast and lunch for Ms. J. and himself. He testified that since Ms. J. was not around much, he did most of the domestic chores, including doing lot of the laundry. He also did renovations to the house. [79] Mr. S. testified about the Halloween party of 2010. He said Z. was not feeling well that day. Z. was left at Mr. S.’s mother’s house so that she could babysit. Mr. S. said he did not drink that evening, but Ms. J. ended up getting drunk. Mr. S. testified that Ms. J. was ignoring him at the house party they were attending. He stated he called back several times to his mother’s place during the evening to check on Z. He claimed his mother said that the child was not doing well and they should come home. He testified he told Ms. J. about this and urged her to come with him. According to his testimony she refused. He left the party and went to his mother’s residence. Mr. S. then called the police. This appears to have been prior to Ms. J. arriving. [80] Mr. S. testified that Ms. J. and her friend Ms. C. arrived at his mother’s residence sometime later. He refused to let her take Z. because of her condition. She returned the next day and according to Mr. S. apologized. He stated again in his testimony that she had been ignoring him at the party, and this bothered him. [81] He testified that he had neck surgery on February 18, 2010. This surgery did not end his pain. Mr. S. testified that he takes two types of hydromorphone one slow release and the other as needed. He also takes Effexor. He describes his medical condition as chronic pain requiring pain management. Mr. S. says the hydromorphone relieves his pain and makes him “mellow”. The Effexor is taken to calm him down. As part of all of this he has decided to stop drinking alcohol. [82] Mr. S. testified about Christmases in 2010 and 2011 where they had family get-togethers. He testified briefly about birthday parties for Z. [83] Mr. S. recounted being approached by Ms. J. to sign cohabitation agreement. He testified he was shocked she would consider such thing. He refused to sign it. [84] He testified that for brief time WCB (from October 2012 to November 2012) indicated his benefits might be stopped. Mr. S. stated Ms. J. expressed concern about this and according to his testimony then suggested that their relationship would not work out anymore. He stated at this time his pain was bad and yet he had to continue to care for Z. because Ms. J. was out lot. He admitted sometimes it was overwhelming because he not only had to care for Z. but also T. and S. when they stayed with him. His testimony seemed to be that things leading up to November 28, 2012 were difficult. [85] Mr. S. described the night of the rock concert on November 28, 2012. He described Ms. J. as being disinterested in himself. He was not drinking on that occasion. Mr. S. drove Ms. J. in her car, along with group of friends, to the concert. He tried to hold her hand at the concert. She refused. This “blew his mind”. He claims he caught her flirting. Mr. S. testified that all of Ms. J.’s friends were trying to push drinks on him, and he thought that something was going on. [86] He testified that he saw R. at the concert and thought something might be going on between R. and Ms. J. Mr. S. testified he announced that he was leaving the concert claiming that he was “done with this”. He states Ms. J. said she was calling the police for stealing her car. Mr. S. then went to his mother’s place where Z. was being babysat. Mr. S. testified he was crying to his mother and said he could not believe what was going on. [87] Mr. S. testified about the next day. He said he did not want Ms. J. to have Z. because he was concerned about her mental state. Mr. S. said he wanted Ms. J. to come over and talk about things. She refused. However, he denied wanting to keep Z. from Ms. J. [88] Mr. S. testified that after the separation he has supported Z.’s relationship with Ms. J. He told Z. that “mommy loves you” and denied saying any negative things about Ms. J. to Z. He testified that Z. watched the “Wizard of Oz” on TV and noticed the witch had warts. According to Mr. S., Z. then commented that his mommy had warts too. According to Mr. S. this was because Ms. J. has moles. This was Mr. S.’s explanation as to why Z. may have been calling his mother witch. [89] Mr. S. testified that his children T. and S. dislike Ms. J. According to Mr. S. this arose out of Ms. J. withholding some of his children’s personal effects at her house. He further testified that it may be his children T. and S. are the ones telling Z. to say all the negative things about Ms. J. referred to above. [90] Mr. S. then briefly described his post-separation life with Z. He describes getting Z. ready for school and how Z. loves school. The school is Catholic school relatively close to his mother’s residence. He testified that he wants Z. to attend kindergarten there this fall. He expressed concern that there is not Catholic school in Warman. Mr. S. seems opposed to driving Z. from M.S.’s residence to the Warman school, which would take about 15 minutes. He expressed that doing so would be difficult because it would interfere with his need to drive T. and S. to their school. [91] Mr. S. testified that 50/50 rotation would be best. He denies that this is high-conflict situation. He believes the parties could “make arrangements” for summer access and that the parties should not have to go through lawyers. Mr. S. believes that Ms. J. and he could just work things out themselves. He described his mother’s role as minimal and sees no reason for her supervision. [92] Mr. S. responded to P.B.’s testimony by blaming her and saying she was the aggressor at the exchanges of T. and S. He denies ever being violent to P.B. and testified that it was P.B. that assaulted him. If she was injured it was because she lost her footing and fell down. He claimed he was frightened of her because she threatened to put him in jail. [93] Mr. S. testified that he has never said anything negative about P.B. in front of his children. [94] Mr. S. testified that P.B. does not communicate T. and S.’s extra-curricular activity schedule or if she does it is at the last moment so he cannot participate. [95] Mr. S. denies high conflict with P.B. at present and said he would do anything he could to cooperate with her. [96] Mr. S. admitted that he had dated “Charlene” before he moved in with P.B. He testified that Charlene attacked him, and he pushed her away and she fell through window. The police attended. He admitted to being placed on an anger management course as result. [97] Mr. S. testified to some confusion regarding another lady that involved his using her PIN number and account. He stated it was alleged that he took money. Mr. S. testified that “they” made him pay the lady back $1,000. [98] Mr. S. acknowledged that the parties had agreed to psychological counselling. He says that he went with his children to counselling. He testified that he continues to receive counselling. Mr. S. denies any confusion over the selecting or use of psychologist. [99] He testified that he unilaterally reduced his time with T. and S. because of having to drive them from Warman to their school in Saskatoon and his other duties at the Warman household. [100] Mr. S. was cross-examined. He was shown the text messages arising out of the post-separation issues in December 2012. Mr. S. offered little explanation as to the texts. [101] Mr. S. admitted that he never disclosed to the family court any of his under-the-table income in the child support proceedings regarding P.B. [102] Mr. S. admitted he has never reported to WCB or the Canada Revenue Agency [CRA] his under-the-table earnings. [103] Mr. S. admitted to giving false testimony in court during his bankruptcy proceedings in that he provided inaccurate income reporting and property inventory. [104] Mr. S. admitted lying to the sheriff’s office about boat. He said it was Ms. J.’s boat when it was not. This was to avoid seizure by the sheriff of the boat. He admitted that he sold property that should have been given to his ex-wife Lisa to satisfy her judgment against him. [105] Mr. S. was asked about his three Criminal Code convictions for failing to appear in court [Criminal Code, RSC 1985, C-46]. He stated he could not remember what the underlying charges were that led to his three convictions. [106] He denied getting the text messages from P.B. containing the schedules (P-86). Mr. S. testified that he was not allowed to know of or go to S.’s dance classes. [107] Mr. S. confirmed that the source of Z.’s disturbing comments was possibly coming from his children T. and S. [108] In cross-examination he denied that he was being difficult or uncooperative in setting up psychological counselling as required under the minutes of settlement. [109] When Mr. S. was asked during cross-examination about what summer holidays he would like with Z., he declined to comment saying he would need to discuss this with his lawyer first. [110] Mr. Mc. is friend of Mr. S. They used to play in band together. He was at the couple’s home in Warman frequently before their break-up. He noted Mr. S. was an active parent seemingly doing most of the parenting. Mr. Mc. has only seen Mr. S. with Z. “a few times” after the separation. He believes Mr. S. to be good dad. [111] Ms. W. is in relationship with Mr. Mc. Ms. W. has known Mr. S. about six years. When she visited the parties’ residence she believed Mr. S. did most of the parenting of Z. She describes Mr. S. as fun guy with no physical limitations. The times she observed Mr. S. and Z. together were of relatively brief duration. [112] Mr. is long-time friend of Mr. S. Prior to the parties’ separation he was over to the house quite few times for barbeques and get-togethers. Mr. S. seemed to be helping out with Z. After the separation he has noticed that Mr. S. is good parent. He testified Mr. S.’s mother helps out with Z. [113] Mr. R. has been Mr. S.’s friend for 17 years. He spent lot of time at the Warman house because he also was on WCB. Mr. R. testified that Ms. J. was often not there during the day. Mr. S. looked after Z. when Ms. J. returned home from work. After the separation he has seen Mr. S. about once week. He testified that Mr. S. is good dad. [114] Mr. M.B.’s brother lives across the street from Mr. S.’s mother’s house. He goes for coffee with Mr. S. He has seen Mr. S. playing outside with his children. He supports Mr. S. as parent. [115] Mr. A.B. lives across the street from Mr. S.’s mother’s house. Mr. S. is an acquaintance. He sees the children outside. They seem happy. [116] Ms. T. is elderly and appeared over the telephone at the trial. Ms. T. received birth announcement card from the parties. She remembers that Ms. J. had signed the card “from the family”. [117] M.S. is Mr. S.’s mother. She is 72. M.S. ran private daycare in her house for 25 years. M.S. is widow. She has two other adult children, daughter who lives in Saskatoon and son who lives at Blackstrap. She has seven living grandchildren. Her daughter has two adult children, and her son at Blackstrap has two adult children. [118] M.S. testified that Mr. S. lived at home until he was 22 and then moved out. After Mr. S. and P.B. separated, he moved back home. He then met Lisa, got married, and he moved in with Lisa. After they separated he moved back home. He then met Ms. J. in 2009 and moved in with her. Mr. S. then moved back into M.S.’s home after the separation in November 2012. He has lived there ever since. [119] She testified that after Z. was born Mr. S. did most of the child care because he had experience with T. and S. M.S. was called upon to babysit. [120] M.S. stated that the last six months the parties were together they seemed happy. Their separation was shock to her. [121] M.S. described Mr. S.’s role as parent after separation. She testified that he does good job of looking after Z. and T. and S. He attends to meals, baths and getting them ready for school. Mr. S. does not nap. He is attentive. The sleeping arrangements in her house are that Mr. S. and Z. and T. sleep downstairs. Z. has his own bed. S. sleeps in her room upstairs. [122] M.S. testifies that Z. becomes apprehensive when it is time for him to go to see his mother. He wants to stay with his dad. [123] M.S. says that she smokes outside. Mr. S. stopped smoking couple of months ago. She does not know why Z. smells of smoke when he returns to Ms. J.’s. [124] It appears she believes that P.B. and Ms. J. are possibly conspiring together. She claims Mr. S. does not say very much about P.B. M.S. does not see any unhappiness in T. and S. and says their exchanges go well. [125] M.S. is fine with Mr. S. living with her, and she has no plans to move. She testified that she will be leaving the house to Mr. S. in her Will. There appears to be little communication between Mr. S. and his two siblings. [126] M.S. acknowledged that she swore in para. 24 of her affidavit of January 8, 2013 that she never knew Mr. S. to be violent. She agreed during cross-examination that at the time she swore the affidavit she was aware he had been previously ordered to take domestic violence program. She admitted that the paragraph therefore was not true. Analysis and Decision on Parenting, Child Support and Common-Law Relationship Parenting of Z. [127] Section 6(1) of The Children’s Law Act, 1997, provides this Court with the jurisdiction to decide parenting issues. Section of the Act sets out the factors to consider in making custody order. In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (b) 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; and (c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as father or mother. [128] have set out in some detail what believe to be important aspects of the testimony. However, have not catalogued every bit of criticism or praise emanating from opposing witnesses over 10-day family law trial. However, have carefully considered all such evidence, whether specifically set out in my decision or not. [129] Credibility is at issue. will discuss that here. Mr. S. has not impressed me as trustworthy or reliable witness. say this for the following reasons: (i) During the first day of his testimony found that he attempted to give his evidence in an affected manner, often crying and seemingly overly emotional. The Court asked him to moderate this, and he quickly transformed from this type of demeanour to more calm presentation. found this transformation telling. (ii) find Mr. S.’s version of the pregnancy of Ms. J. unbelievable. He claims that even though the couple had just met, they immediately started planning Ms. J.’s pregnancy. His testimony that they consulted ovulation charts seems inexplicable. Not only were they virtually strangers, but the speed in which Ms. J. got pregnant would have rendered such alleged research unnecessary. In addition, they already had complicated lives: Ms. J. was ending relationship and Mr. S. was going through the aftermath of his divorce with Lisa and his ongoing issues with P.B. His version simply does not make sense, and while in the scheme of things it may not matter how Ms. J. got pregnant, have come to the conclusion his story about this affects his credibility nonetheless. (iii) do not accept that the Christmas 2009 ring was merely present. The fact that Ms. J. refused it (which Mr. S. did not contradict) tells the Court that there was greater significance placed on the ring than he testified to. (iv) do not accept Mr. S.’s version of the disastrous 2009 Christmas visit with Ms. J.’s parents in Manitoba. found Ms. J.’s father’s and sister’s testimony persuasive. It was told calmly and in believable fashion. They seem like solid, good people. Beyond that cannot understand why Mr. S. would decide to leave in the middle of winter’s night with his two small children other than he got drunk and started verbally abusing Ms. J. am puzzled why he would try and promote much different story in court. (v) Mr. S. admits to dishonestly not reporting income to WCB or CRA. (vi) Mr. S. admits to having misled the family court regarding his income in previous proceeding involving P.B. and T. and S. (vii) Mr. S. admits to having misled the bankruptcy court regarding income and assets. (viii) Mr. S. admits to having misled the sheriff’s office. (ix) am of the view that Mr. S. was trying to avoid service (or at least purposefully not being cooperative) regarding the original chambers application. do not accept either his evidence or his mother’s that he was just not around. Ms. J. provided evidence of his tendency to avoid service of documents while they were together. Mr. S. was no stranger to the court process when the process server attempted to serve him. At the very least, upon being told by his mother someone wanted to serve him (and of course knowing the controversy over keeping Z.), he should have made himself available. This was not game of hide and seek. The result was an ex parte application for substitutional service. (x) Although not specifically mentioned in my summary of evidence, find his manoeuvering of registrations and ownership of property points to an untrustworthiness and an intention to at the least frustrate, if not deceive, creditors. (xi) Mr. S. was cross-examined about his three previous Criminal Code convictions for failing to appear in court. He stated he could not remember what the underlying criminal charges leading to his fail to attend in court convictions were. find that he was not being forthright in this regard. find it hard to believe he could not remember such significant information. (xii) appreciate that this case is not contest between Mr. S. and P.B. However, cannot overlook Mr. S.’s response in cross-examination that he seemed to have no recollection of the many text messages presented to him arising out of P.B.’s attempts to communicate with him. do not believe him when he says he does not remember getting these text messages. (xiii) find it difficult to accept his explanation that Z. says the disturbing things because possibly T. and S. have encouraged him to do so. The child is reported to having said “daddy says”. That descriptor would not fit in with T. and S. setting the child up. That explanation defies logic and is unbelievable. further find his “mommy is witch” explanation unbelievable. [130] In regards to Ms. J.’s credibility, am prepared to accept her as truthful and reliable witness. note at times she was also emotional, but in the main her demeanour was appropriate. Her evidence did not suffer from any of the concerns set out above concerning Mr. S. Much of what she has testified to has been supported by independent witnesses. [131] In regards to the remaining witnesses (save the deputy sheriff and processor server), it of course would be unusual if litigant called witnesses in family law trial who were not supportive of his or her case. However, was impressed with Ms. J.’s supporters in that they were either close family members, long-time friends who frequented her household and also that of her live-in partner. Mr. S.’s witnesses primarily consisted of friends who he sees from time to time, neighbour from across the street and his mother, M.S. found his mother to be at times evasive and guarded. Her evidence was somewhat more detailed than Mr. S.’s regarding the day-to-day activities in the household, but nonetheless lacking. She was negative towards P.B. and seems to have implied conspiracy of sorts between P.B. and Ms. J. [132] Accordingly am critical of and concerned about Mr. S.’s testimony. Therefore will consider his evidence with caution. Decision on Parenting [133] Ms. J. has requested sole custody and access for Mr. S. to be every other weekend and some division of holidays. Mr. S. wants shared custody on 50/50 weekly rotation. The present arrangement is nine overnights with the mother and five overnights with the father. I will now go through the factors set out in s. 8 of the Act. (i) The Quality of the Relationship that the Child has with the Person who is Seeking Custody and any other Person who may have Close Connection with the Child. [134] was impressed with Ms. J.’s evidence and her supporting witnesses. I find that despite what Mr. S. states, she was the primary parent of Z. since birth and continues to be so. She has provided the Court with great deal of evidence that will not attempt to fully summarize. do note that she has pleasant home that is appointed with age appropriate furnishings and design for Z., including nice bedroom for him. Ms. J. has taken the time to encourage learning outside of school. She provides good nutrition for the child. Ms. J. sets up playdates. Ms. J. has arranged for dental, medical and public health visits. She has enrolled Z. in nearby school. She has age appropriate activities set up for Z. which he enjoys. Ms. J. clearly has prioritized her work life to ensure reasonable balance between work and caring for Z. [135] accept that Ms. J. has tried to encourage good manners and behaviour. She does not swear or act inappropriately around him. It appears she tries to foster sense of respect for others. Admirably she has welcomed T. and S. into her life so that Z. can benefit from having relationship with his siblings. find that T. and S. like Ms. J. do not accept Mr. S.’s testimony that they do not care for her. It appears her new partner is positive influence. [136] am satisfied that there is strong and loving bond between Z. and his mother that is being nurtured on daily basis. [137] On the other hand, Mr. S. presents little information as to what is going on at his mother’s house while Z. is with him. Indeed I learned more (although not much) from his mother’s evidence as to the day-to-day activities. I am left with a degree of uncertainty. Nor do accept that Mr. S. was the primary parent after birth as he has testified. prefer the evidence of Ms. J. and her witnesses that he was sleepy, in pain and generally not doing much. [138] However, do not doubt that Z. loves his father. The evidence seems to be that Z. does not do well during the exchanges not wanting to leave the parent he has just been with. That is, of course, understandable for little boy caught up in tense situation. also accept that Mr. S. loves Z. [139] As stated, have no doubt that both parents love Z. The Act mandates that consider the “quality” of the relationships.  find the evidence satisfies me that the quality of Ms. J.’s relationship with Z. substantially exceeds that of Mr. S.’s relationship with Z. (ii) The Personality, Character and Emotional Needs of the Child [140] Both parents (and other witnesses) describe Z. as an active, bright, lovable little boy. He still has difficulties. S.W. testified that Z. is doing better now than when the weekly rotation was occurring. However, P.B. detects the same anxiousness with Z. that she sees in T. and S. Both parents observe separation anxiety. Ms. J. outlined the disturbing things Z. says upon his return from his father. I accept that the child expresses these words. [141] appreciate taking the child’s second-hand comments as evidence is fraught with problems. However, as have said, find he is indeed saying these things (although perhaps in diminishing fashion now). further find that it is unlikely T. and S. are putting these words in his mouth. It is more likely that these words originate from the father. The child is in need of a stable, reassuring and positive home. I find that it is best provided in the mother’s home. Limiting the time child has with either parent is concern. I am concerned that Z.’s emotional needs have been adversely affected by the conduct of Mr. S. A lessening of Mr. S.’s time with Z. may ameliorate this. (iii) The Physical, Psychological, Social and Economic Needs of the Child [142] have answered much of this above. It would appear both parents can provide for the physical and economic needs of Z., although do have some concerns about the rather unsure financial circumstances of the father. He lives at present at his mother’s house. Apparently she will leave him her house in her Will. However, on balance am not too concerned about the financial issues. [143] However, am not persuaded the father has provided much social development for Z. heard nothing about this other than Mr. S. testified that Z. does well in school. It appears Z.’s main socialization is with T. and S. note Mr. S. appears to have little to do with his sister and brother, who live close by, and so that usual family interaction is absent. [144] Ms. J. on the other hand has developed rich network of little friends for Z. to play with. She continues to associate with her immediate family. She has opened up her household to T. and S. which provides an enhanced family network for Z. note T. and S. actually live in Warman. [145] Accordingly I am persuaded that Z. is afforded far more social fulfillment when in his mother’s care. The psychological issue has been addressed in favour of the mother under the “quality” of relationship tropic. (iv) The Capacity of the Person who is Seeking Custody to Act as Legal Custodian of the Child [146] For the reasons set out above, am persuaded that while both parents may have the “capacity” to act as legal custodian, the mother has demonstrated more organized, committed approach to parenting. Additionally (if this can be advanced here), the father seems to lack insight as to damage that can be inflicted on children by rude comments about the other parent and missing or not paying attention to their scheduled activities (here draw upon P.B.’s evidence about Mr. S.’s non-attendance at his children’s events). Additionally note that it has been Ms. J. who has arranged for medical and dental appointments. [147] Further note that Mr. S. seems to believe that this case is not high‑conflict file. Mr. S. seems to suggest that he and Ms. J. could just work things out without lawyers. It would be nice if it ends up that way. However, volumes of court files and 10-day trial where every element of family law is in contest suggest to me that these matters are not that simple. It appears Mr. S. lacks the insight to recognize this. (v) The Home Environment Proposed to be Provided for the Child [148] have already compared the respective households, and need not repeat that here. find the home environment provided by the mother superior to the relatively guarded and unknown circumstances of Mr. S.’s arrangements at his mother’s home. Additionally, Ms. J. owns her own house and has that stability. Mr. S. does not enjoy such certainty, seemingly having to rely on his mother’s generosity and the terms of her Will. note Mr. S. has moved around great deal. The evidence shows pattern of moving from relationship to relationship. Accordingly have no hesitation to find that the mother’s home environment is preferable to that of the father. (vi) The Plans that the Person who is Seeking Custody has for the Future of the Child [149] Ms. J.’s immediate plans are to enroll Z. in nearby school in Warman. She has contemplated higher education for her son. She plans on remaining in her home, and Z. can continue to be in community in which he is familiar. [150] Mr. S. lives at his mother’s. have discussed this above. did not hear any plans except he wants Z. to go to nearby Catholic school. Ms. J. has said she would raise Z. as Catholic. did not hear any evidence that either party was particularly religious. Z. was baptized, but beyond that he receives no religious instruction. Mr. S. also suggested he is bilingual. heard no evidence of that other than his testimony that he took French in school but did not continue in French immersion program in high school. am satisfied that neither his religious nor language concerns are significant factors. [151] find that the mother has taken steps to enroll the child in extra-curricular activities. She attends at these activities and supports him. Therefore on balance it is likely she will have the more constructive plans for Z.’s future. (vii) The Wishes of the Child, to the Extent the Court Considers Appropriate having Regard to the Age and Maturity of the Child [152] Z. is about five. He is little boy. Both parents suggest that he prefers living with each other. have no doubt the child senses the tension between the parties that boils over during the exchanges. The child’s behaviour probably reinforces the parents’ views on this. Z. undoubtedly has need to please both parents and confused sense of loyalty. It seems Z. does adjust back into his life with each parent after the exchange given some time. Therefore cannot place much weight on this factor because of his age. Decision on Parenting [153] wish to comment briefly on the rather potent (and find believable) evidence of P.B. and also the father’s relationships with other women (including Charlene). have specifically reminded myself of s. 8(b) of the Act. have set out above that this is not trial between Mr. S. and P.B. However, find P.B.’s evidence is relevant to Mr. S.’s ability to parent. Beyond what appears to be several failed relationships, detect nastiness in his approach to at least P.B. believe that this has been unfortunately exported by Mr. S. to not only T. and S., but also Z. note that it was more than just P.B. who testified about this. Ms. J. corroborated this, as did other witnesses (i.e. his negative comments about P.B. in front of the children). have concern that this pattern has been manifesting itself regarding Ms. J. The child’s reporting of negative things regarding his mother supports this conclusion. I find that this adversely reflects upon Mr. S.’s ability to parent. [154] Our Court of Appeal in Ackerman Ackerman, 2014 SKCA 86 (CanLII) at paras 31-36, 442 Sask 113 [Ackerman], directs that there is no presumption in favour of status quo. must only consider what is in the best interests of Z. [155] Additionally, while the principle of maximum contact (housed in the Divorce Act, RSC 1985, (2d Supp.), under s. 16(10)) has universal application, also note that each case depends on what is in the best interests of the child (Ackerman at para 40). [156] In considering all of the above, including my analysis of the evidence in light of s. 8(a) of the Act, come to the conclusion that it is in Z.’s best interests to primarily reside with his mother. reject Mr. S.’s claim for shared custody (i.e. 50/50 weekly rotation). As set out above, have found in favour of Ms. J. on all of the s. factors. This decision really boils down to what should be the legal status of the parents regarding custody and their respective parenting time. Sole or Joint Custody? [157] Section 3(1) of the Act sets out the presumption of joint custody for parents with equal rights, powers and duties. note in Ackerman: 48 While it stands to reason that generally, shared parenting requires modicum of cooperation and communication, there can be no hard and fast rules. Every case must turn on its own facts with the focus always being the best interests of the child. Sometimes trial judges are faced with impossible situations and they must craft parenting regime that they know will not be perfect but best addresses the child’s needs and interests. In exercising their discretion they should not be arbitrarily limited to certain types of orders because in other cases judges have found the presence or absence of certain things, such as effective communication, was deciding factor for them. Resolving custody issues requires balancing of factors to determine the best interests of the child. What those factors are and how they will be weighed will vary greatly depending on the circumstances of each case. It is for this reason that trying to determine custody based on review of “similar” cases is questionable practice. [158] In my view it is important to look at what was going on in the parties’ relationship up to and including the November 28, 2012 separation. Perhaps there were telltale signs of Mr. S.’s true temperament. Certainly his behaviour at the Manitoba family Christmas in 2009 was red light. Beyond the effect on Ms. J. and her family, note the effect on Mr. S.’s two small children. Clearly they were traumatized, and yet he failed to appreciate this. It was virtual stranger, Ms. J.’s sister, who took the time to comfort them. The sad end of this Christmas was what must have been miserable 16-hour bus ride back to Saskatoon. As stated above, Mr. S. seemed oblivious to how bad this was. [159] The parties had quarrel on Halloween night in 2010. curious part of this was that Mr. S. took the pre-emptive action of calling the police even before Ms. J. and her friend arrived. He would not have known their disposition or how the matters would have evolved at that stage. This seems somewhat reminiscent of his pattern of false claims to the police and social services regarding P.B. [160] The text messages that went back and forth between the parties after the separation on November 28, 2012 indicate selfish and mean-spirited approach by Mr. S. Despite what he said in court, he should have known Ms. J. was the primary parent and parent that Z. would greatly miss. The lengthy (two weeks) separation for little boy from his primary caregiver was clearly traumatic. Mr. S. should have understood this, yet he persisted. accept Ms. J.’s evidence that when Z. was returned to her he was extremely upset, confused and anxious. [161] The parties now only communicate through lawyers. Mr. S. has the unrealistic (if indeed truthfully held) belief that they could get together and sort all of this out. This is highly unlikely. Additionally and ironically for Mr. S.’s situation, Ms. J. and P.B. have become friends and confidantes. see nothing sinister in this. Ms. J. and P.B. have shared experience. also note that nothing has really ever been successfully resolved between the parties unless there was court proceeding. It seemed impossible to come up with simple solution for the psychological counselling. Even simple things such as travel documents prove to be big deal. [162] have little confidence that things will improve. am concerned that routine matters like dental appointments, eye examinations, sports activities, school events, travel, etc. will not go smoothly. The child will likely end up being further confused and upset. [163] am particularly concerned that Mr. S. may persist in casting Ms. J. in negative light (like he has with P.B.). can only think of one way to minimize this short of supervised access; that is to reduce Mr. S.’s time with the child from the present arrangement. [164] have considered the issue of whether Mr. S.’s mother should be present during Mr. S.’s time with the child. am not convinced that that is still required. Accordingly there will be no such supervision. [165] Therefore after carefully considering all of the above, I am of the view the following orders are in the child’s best interests, and I so order: (a) The petitioner, M.D.J., shall have sole custody of the child Z., born in June 2010, with his primary residence to be with the said petitioner. (b) The respondent, C.W.S., shall have alternate weekend access with the said child from Friday at 6:00 p.m. to Sunday at 6:00 p.m. to be extended to Monday at 6:00 p.m. in the event Monday is a school holiday. (c) The Christmas school holiday break is to be divided equally between the parties with the said petitioner to have Z. in her care for the first part of the break in 2015, including December 25, and alternating thereafter. (d) The February school break is to be alternated between the parties. (e) The Easter school break is to be alternated between the parties. (f) The regular parenting rotation will remain in effect for the summer school holiday break other than the respondent will have Z. in his care for one week of holidays in July and one week of holidays in August of each year with the weeks chosen by the respondent, not to be consecutive and not to include the August long weekend, unless the August long weekend falls on the respondent’s regular parenting time. The respondent shall be required to provide notice to the petitioner by June of each year which week in July and which week in August he intends to exercise his summer vacation time. (g) The petitioner is able to choose another adult to pick up or drop off Z. in the event she is unable to do so. (h) All exchanges shall continue to be done through the respondent’s mother, M.S., at M.S.’s residence, and the respondent shall not be present during such exchanges. Ms. J. will continue to be responsible for the transportation of Z. for exchanges. Child Support [166] As result of my decision, Ms. J. is entitled to receive child support for Z. payable by Mr. S., and correspondingly Mr. S.’s claim for child support is dismissed. She states that she is not requesting Mr. S. pay monthly child support, but rather his obligation to do so be considered as an equitable consideration in the division of property pursuant to s. 21(3)(m) of The Family Property Act should the Court find the parties cohabitated as spouses within the definition of The Family Property Act and the petitioner has to provide to the respondent an equalization. find that should make the necessary analysis regardless of my overall decision regarding family property. Accordingly the following is my analysis of Mr. S.’s obligations under ss. and of the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] [Guidelines]. [167] Some controversy has arisen regarding Ms. J.’s actual income as opposed to what she has reported on her income tax return because of her claim of $12,842.91 for car expense. Counsel for the respondent points out that Ms. J. works mostly at home. This is only concern because the s. percentage must be calculated using both parties’ income. Her line 150 income was reported to be in 2013 $130,836. agree that while accept her accountant set this figure, it appears high for these calculations. Therefore I accept the respondent’s argument and will add back into her income $5,000, which I consider to be fair. Therefore for these purposes will impute income of $135,836 to Ms. J. [168] Mr. S.’s income is calculated to be $80,393 (see para. 52 of his counsel’s brief filed April 1, 2015). Counsel for Ms. J. actually suggests lower figure; however, will accept $80,393. This results in s. 3 child support of $676. [169] Counsel for the petitioner argues that there was evidence at trial that Mr. S. earned undeclared income. Indeed he admitted this. How much was unclear. Mr. S. says that he has stopped doing this. Since he had admitted to misleading two other courts on this topic, find it hard to accept his testimony. Ms. J. urges the Court to impute $10,000 under s. 19 of the Guidelines. K.R.’s evidence is that Mr. S. still likes to drive around looking for bargains. The Court does not know whether this means he remains an active handyman/furnace installer. On balance find that it is not possible to determine what, if any, unreported income is being presently earned by Mr. S. Accordingly decline to impute further income. [170] I am satisfied that Z.’s s. 7 expenses for health, dental, activities and pre-school are about $5,061.35 per year (see P-28, tab 19 in P-8). Therefore Mr. S.’s share should be 37 percent per year or $1,872.70. [171] wish to add that Ms. J. neither petitioned for child support nor requested child support in her oral or written argument, save as outlined above regarding consideration under The Family Property Act; however, wish to avoid any potential future confusion arising out of this judgment. have not adjudicated the issue of Ms. J.’s entitlement for child support for Z. The petitioner is reluctant to request such support from the respondent because she believes child support payments would be an irritation between the parties that she is anxious to avoid. However, if in the future Ms. J. wishes to apply for support for Z. she may. However, no such application shall be made by Ms. J. until at least one year has passed from the date of this judgment. Common-Law Relationship [172] have reviewed Ruskin Dewar, 2003 SKQB 514 (CanLII) (particularly paras 30-33), 243 Sask 126. am satisfied that the respondent, C.W.S., has discharged the onus of establishing common-law relationship of two or more years. Ms. J. all but admitted this during her cross-examination. The evidence reveals, inter alia: (i) Mr. S. moved into Ms. J.’s home in Warman in October or November 2009. (ii) The parties presented themselves as couple to the community. (iii) They shared the same bed, ate together, while not sharing their finances, nonetheless drew support from each other for food and other necessities. (iv) They considered themselves family after the birth of Z. and announced this to the community. (v) They went to family functions and hosted family functions as couple. (vi) They filed their income tax for 2009, 2010 and 2011 as common-law partners. (vii) Ms. J. attended with Mr. S. at WCB and medical appointments. (viii) Ms. J. tried to get Mr. S. to sign cohabitation agreement seemingly acknowledging that they were in spousal relationship. [173] Accordingly find that the parties started living together on November 1, 2009 and by November 1, 2011 had been in spousal relationship for two years. They separated about year later on November 28, 2012. VI Family Property [174] The respondent filed his counter-petition requesting, inter alia, division of family property on January 9, 2013. For the purposes of The Family Property Act, the date of application can be set at January 8, 2013. The date of adjudication is the commencement date of the trial, being March 16, 2015. Analysis of Property [175] There is some agreement between the parties. Where there is disagreement and finding of credibility is necessary, will (for the reasons already set out above) accept Ms. J.’s evidence over that of Mr. S.’s. will now endeavour to go through the property. Mr. S.’s Pension [176] The parties almost agree on Mr. S.’s pension. note Exhibit R-23 is letter from the Public Employees Pension Plan that establishes Mr. S.’s exemption (i.e. what the pension was worth on November 1, 2011) and what it was worth on January 8, 2013 (i.e. date of application). believe the correct math is family property value of $11,663.97 (and not the $12,642.88 set out by Ms. J.’s counsel). will consider using 25 percent discount rate on tax. Accordingly Mr. S.’s pension should have value of $8,747.97 for these purposes. Warman Residence [177] This was the family home. Even though there was brief spousal relationship, would not be prepared to grant an unequal division in favour of Ms. J. who owned the house previous to the commencement of their relationship. I do not find the evidence supports an “extraordinary circumstance” as per s. 22(1)(a) of The Family Property Act (see Phillips v Phillips, 2010 SKCA 117 (CanLII), 362 Sask R 124). There seems to be consensus that the house should be valued as of the date of adjudication. [178] Each party obtained appraisal reports regarding the house. The respective reports were filed by consent, and the appraisers were not called to testify. Unfortunately controversy arose as to which appraisal reports should accept. Without hearing the appraisers in court am left with weighing the written reports and considering counsel’s arguments. [179] have decided to accept the opinions set out in the Mumford and Lazeski reports (P-33, tab 41 in P-1) which set the value of the residence as of March 4, 2015 to be $360,000. As Ms. Fitzsimmons points out, this was not “drive-by appraisal” like the report submitted by Mr. S. It appears Mr. S.’s appraiser never stepped foot in the residence and received all his information about the residence from Mr. S. note Ms. J. was quite prepared to allow this appraiser access into her house, but Mr. S. did not take her up on that offer. The Mumford and Lazeski reports have the distinct advantage in that the authors attended at and in the residence. have no reason to see any bias in their report. It ends up simply being the best evidence and should be preferred. [180] further note that counsel for Mr. S. cross-examined Ms. J. about borrowing money against her house and her personal knowledge of lending practices. However, am not satisfied that establishes anything other than bank was prepared to lend her money. do not know what that particular bank’s policies were, and frankly that is not the issue. The issue is what does qualified appraiser(s) believe the fair market value of the house is. [181] Accordingly place the value of the residence at $360,000. [182] Controversy has arisen as to whether the date of adjudication (equity) in this house is divisible or (as argued by Ms. J.) only the “value” is considered at the date of adjudication. In other words, the date of application (January 8, 2013) is used to set the amount owing against the house for family property division purposes. [183] agree with Ms. J.’s argument. While it is common for court to recognize that the rising market results in date of adjudication value being used, it makes no sense to have party who has made no contribution to the mortgage payments since the date of application to receive windfall of half of the payments made solely by the other party. Accordingly do not accept the respondent’s argument. Equity Removed from House [184] However, do accept the respondent’s argument that Ms. J. borrowed $35,902.76 against the home and thereby received that as cash asset shortly before the counter-petition was issued. In my view it does not matter what the purpose of the cash was for; it should be considered as divisible family property asset regardless (see P-50, tab 20 in P-1, Exhibit P-47). Rental Properties [185] Mr. S. acknowledges that Ms. J. owned three rental properties on the west side of Saskatoon prior to their relationship. The only appraisals have are those provided by Mr. S., which Ms. J. accepts. Ms. J. testified that as far as she knew these rentals have not increased in value since they were appraised. Accordingly the Court will use the appraised values provided as of December 3, 2012: 302 26th Avenue West $230,000 1118 Avenue North $155,000 829 Avenue North $121,000 $506,000 The parties agree that the debt against these properties as of the date of application (January 8, 2013) is as follows: 302 26th Avenue West $175,893.34 1118 Avenue North $155,522.83 829 Avenue North $144,827.04 $476,243.21 Ms. J. has established that the debt against these properties as of approximately November 1, 2011 was: 302 26th Avenue West $179,154.11 (P-53, tab 23 in P-1) 1118 Avenue North 89,038.48 (P-65, tab 14 in P-8) 829 Avenue North $147,165.98 (P-51, tab 21 in P-1) $415,358.57 [186] Accordingly I accept that the exempt amount of the rental properties is $90,641.43 (i.e. $506,000 - $415,358.57). [187] The parties agreed on the value of bank accounts, that the Audi vehicle owned by Ms. J. had no equity, the approximate amount of Mr. S.’s RSP, the exemption for Ms. J.’s RSP, and the amount of Ms. J.’s tax refund for 2012. The following items remain in dispute: Mr. S.’s Tax Refund for 2012 (i) This requires adding back all the payments as set out in the exhibit to determine what Mr. S.’s refund would have been. accept Ms. Fitzsimmons’ calculations that this amounts to $10,084.50 that Mr. S. would have received by way of tax refund for 2012 (P-45, tab 13 in P-1). note the same approach was taken for Ms. J.’s tax refund calculations which appear to have been accepted by Mr. S. Mr. S. claims that he did not receive the refund. do not accept this. The official document from CRA indicates it would have been paid out on his behalf. Therefore will add $10,084.50 as family asset. (ii) Ms. J. has retained the MGB automobile. accept Mr. S.’s approach that the average of the two appraisals should be used resulting in value of $11,150. Motor Home and Avalanche Automobile (iii) am satisfied that despite the manoeuvering by Mr. S. to avoid creditors, he probably did receive $15,000 from his mother for the motor home and Avalanche. Therefore will not consider these as assets. Boat and Trailer (iv) Mr. S. agreed that he sold the boat. He did not recall to whom, and he did not produce receipt. However, am prepared to accept it was an old boat. Accordingly will accept his testimony that $2,300 was paid to him for the boat and motor. [188] It appears that Mr. S. will not acknowledge Ms. J.’s debts as of the date of application. find that these debts were occasioned by her during the course of the relationship for their mutual benefit. Accordingly will accept the same as per the chart set out in Ms. Fitzsimmons’ brief. However, will not allow the claim for legal fees made by Ms. J. [189] Using, with my changes, the helpful chart provided by Ms. Fitzsimmons under tab of her brief, summarize the family property and exemptions as follows: Exhibit Pension gross value $11,633.97 (net of exemption) $8,747.97 (net of exemption) R-23 Warman residence $360,000 as of March 6, 2015 P-32 (Tab 42 in P-1), and P-33 (Tab 41 in P-1) 829 Avenue North $121,000 as of December 3, 2012 R-16 (Tab 13 in Respondent’s binder) 302 26th Street West $230,000 as of December 3, 2012 R-17 (Tab 14 in Respondent’s binder) 1118 Avenue North $155,000 as of December 3, 2012 R-18 (Tab 15 in Respondent’s binder) RBC bank account $1,020 P-58 (Tab 31 in P-1), P-105 Assante RRSP gross value on date of application $4,898.97, gross value on November 1, 2011 $4,916.53 Nil after exemption P-59 (Tab 33 in P-1) 2012 Audi vehicle $39,800.00 P-34 (Tab 26 in P-1) MGB vehicle $11,150 P-35 and P-36 (Tabs 29 and 30 in P-1) Motorhome (no value, not an asset) Avalanche (no value, not an asset) P-67 Boat and trailer P-67 Income tax refund for 2012 $10,084.50 P-26 (Tab in P-1), P-45 (Tab 13 in P-1) Contributions to RRSP $1,098.96 Equity taken out of house Total $963,501.62 $23,251.43 Liabilities Mortgage on Warman Residence $324,097.42 P-50 (Tab 20 in P-1) Mortgage on 1118 Avenue North $155,522.83 P-55 (Tab 25 in P-1) Mortgage on 302 26th Street West $175,893.34 P-54 (Tab 24 in P-1) Mortgage on 829 Avenue North $144,827.04 P-52 (Tab 22 in P-1) Credit Card $4,970.46 P-64 (Tab 38 in P-1) RBC line of credit $1,927.63 P-60 and P-61 (Tabs 34 and 35 in P-1) RBC Visa Infinite Avion $22,575.68 P-62 (Tab 36 in P-10) Scotia Visa $2,970.31 P-63 (Tab 37 in P-1) $56,489.90 P-56 and P-57 (Tab 27 and 28 in P-1) Total liabilities $889,274.61 Net property $45,685.62 Less value of exempt property (only real property) $90,641.43 Net Property (-$16,414.42) [190] have applied the Benson Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask 17 (CA) at para. 19, analysis including the application for exemptions. find that should allow for the exemptions for the rental properties. The result is that the respondent (petitioner by counter-petition) has failed to prove that he is entitled to any distribution under The Family Property Act, and I dismiss his counter-petition in this regard. [191] also note that the petitioner is prepared in essence to walk away from this case without any claim for money from the respondent. This covers any potential equalization under The Family Property Act. Accordingly will simply dismiss The Family Property Act claim as have done so above. need not consider any s. 21(3)(m) application under The Family Property Act. [192] order that the respondent shall within 10 days, at his expense, discharge any Certificate of Pending Litigation or Certificate of Lis Pendens he has registered against any real property owned by Ms. J. In the event Mr. S. does not do this, then Ms. J. can apply to myself for an order directing the registrar of land titles to vacate/discharge any such registration along with request for costs [193] Counsel for Ms. J. urges the Court to award substantial fixed amount of costs against Mr. S. and to order that he not be allowed to take any further proceedings unless these costs are paid. Ms. Fitzsimmons points to difficulties and frustrations encountered since this litigation started. [194] have considered the above, but conclude the following is appropriate here. Ms. J. has been predominantly successful in this case. see the most significant element of this litigation to be the issue of custody, and she has been substantially successful in this regard. note that Mr. S. (and quite correctly) abandoned his claim for spousal support on the last day of the trial. However, also note (although ultimately it was moot) he was able to establish that there was spousal relationship. Ms. J. should have conceded this. Finally, Mr. S.’s claim under The Family Property Act was entirely unsuccessful. [195] Considering all of the above, will order that Ms. J. receive costs. have decided not to impose restriction on Mr. S. from bringing further applications until he has paid his costs. am quite sure that if that becomes an issue counsel for Ms. J. will bring it to the attention of the Court. VIII Conclusion [196] In summary therefore: (1) Ms. J. shall have sole custody of Z., with Z.’s primary residence to be with Ms. J. and Mr. S. to receive parenting time as set out above; (2) Ms. J. shall be entitled to apply for child support, but only after one year; (3) The parties were found to be in common-law relationship as set out above; (4) Mr. S.’s claim for spousal support is dismissed; (5) Mr. S.’s claim under The Family Property Act is dismissed without any distribution to either party; (6) Mr. S. is to remove any registrations he has placed against Ms. J.’s real property; (7) Ms. J. shall receive her costs.
The court concluded that the respondent was not a credible, trustworthy, or reliable witness for many reasons. The petitioner, on the other hand, was found to be a truthful and reliable witness. The court was also impressed with the petitioner’s witnesses because they were close family members, long-time friends, and her live-in partner. By contrast, the respondent’s witnesses were friends seen from time to time, neighbours, and his mother. The court found the respondent’s mother to be evasive and guarded at times. To determine custody the court reviewed the factors set out in s. 8 of The Children’s Law Act, 1997. The petitioner was found to be the primary parent of the child since his birth. The court was left with a degree of uncertainty as to the day-to-day activities of the child when he was with the respondent. The quality of the child’s relationship with the petitioner was found to substantially exceed that of the respondent’s relationship with the child. The court accepted that the child said disturbing things upon his return to the petitioner from the respondent. The child’s need for a stable, reassuring, and positive home were found to be met in the petitioner’s home. The court indicated that decreasing the respondent’s time with the child may ameliorate the adverse effect on the child’s emotional needs. The child was also found to be afforded more social fulfillment in the petitioner’s care. The petitioner also had more constructive plans for the child’s future. The respondent’s negativity towards the petitioner was found to negatively impact his ability to parent. The court concluded that it was in the child’s best interests to primarily reside with the petitioner. The petitioner was granted sole custody of the child so as to minimize further conflict between the parties. The respondent was given unsupervised access every other weekend. The court added $5,000 to the petitioner’s line 150 income for the personal component of her vehicle expense deduction. After determining the respondent’s income the court found that the s. 3 Guideline child support due by the respondent to the petitioner was $676 per month and that he should be responsible for 37 percent of the s. 7 expenses. The petitioner did not request child support but instead asked the court to consider it in the distribution of property. The respondent discharged the onus of establishing a common-law relationship of two or more years. The respondent’s pension value available for division was found to be $11,663.97.  The court did not find an extraordinary circumstance to warrant an unequal division of the family home. The value of the home was $360,000. The court used the date of application to determine the amount owing on the home. The petitioner also had rental properties and was given an exemption of $90,641.43 for those properties. After taking into consideration all of the property and exemptions, the respondent failed to prove that he was entitled to any distribution under The Family Property Act. The petitioner did not claim an equalization payment. Costs were awarded to the petitioner and the respondent was restricted from bringing a further court application until those costs were paid.