Malbeuf v. Malbeuf, 2012 NSSC 168

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Malbeuf v. Malbeuf, 2012 NSSC 168 Date: 2012 04 27 Docket: 1201-65469 (SFHD-76383) Registry: Halifax Between: Anna Vladimirovna Malbeuf Petitioner v. Robert Donald Malbeuf Respondent LIBRARY HEADING Judge: The Honourable Justice Leslie J. Dellapinna Heard: April 19, 2012 in Halifax, Nova Scotia Subject: Divorce. Child custody. Shared parenting. Child support. Table amount in a shared parenting arrangement. Special and extraordinary expenses (childcare costs). Retroactivity.

Summary: The parties were married for approximately seven and a half years when they separated. They had two children aged eight and five at the time of the divorce hearing. The parties had agreed on the division of their assets, that no spousal support would be paid and they also agreed to joint custody. They could not agree on the form of the parenting arrangement or child support. Issues: 1. The form of the parenting arrangements for the two children. 2. Child support pursuant to both

section 3 and

section 7 of the Guidelines , including whether retroactive child support should be ordered and if so, in what amount? Result: The Petitioner/mother sought primary care of the children claiming that prior to the parties ’ separation she was the primary parent and that the Respondent/father was not “ terribly involved ” in parenting the children. The Respondent/father said that prior to their separation the parties shared the care of the children and he sought an equal shared

parenting arrangement on a week-on week-off basis. The Court concluded that prior to their separation the parties did in fact share the parenting of the children on a more or less equal basis and since the parties separated the children had become used to spending time individually with their father as well as individually with their mother. There was strong evidence that the mother had attempted to diminish the role of the father since the parties ’ separation.

Notwithstanding the fact that the parties did not communication constructively since their separation it was held to be in the children ’ s best interest that they be cared for by both of their parents and an approximately equal shared parenting arrangement was ordered but not in the form requested by the Respondent/father. The children were to be in the Respondent ’ s/father ’ s care on alternate weekends (Friday to Monday morning) and each Tuesday and Thursday nights (including overnight) as well as an equal sharing of special occasions and vacation periods.

Whereas the Court was not given sufficient information to perform a Contino analysis the Court chose the set-off approach for child support which resulted in the Respondent/father having to pay $242.00 per month to the Petitioner/mother. The parties ’ childcare costs, after taking into account the tax savings realized by the Petitioner/mother, were to be shared proportionate to their incomes.

The Court ordered the Respondent/father to pay retroactive child support from the date that the children were in the primary care of their mother post-separation to the date of the hearing giving him credit for the child support that was paid and for his share of the tax savings realized by the Petitioner/mother. The Court left it open to the parties to make further submissions with respect to costs. . THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Malbeuf v.

Malbeuf, 2012 NSSC 168 Date: 2012 04 27 Docket: 1201-65469 (SFHD-76383) Registry: Halifax

Between: Anna Vladimirovna Malbeuf Petitioner v. Robert Donald Malbeuf Respondent Judge: The Honourable Justice Leslie J. Dellapinna Heard: April 19, 2012 Counsel: Anna Malbeuf, Self-represented Nicole Figuiera counsel for Robert Malbeuf By the Court: BACKGROUND [ 1 ] This is a divorce proceeding initiated by Anna Malbeuf (the “ Petitioner ” ) in July 2011.

The Respondent is Robert Malbeuf ( “ the Respondent ” ). [ 2 ] The parties were married on March 22, 2003 and have two children namely Margarita, born August 9, 2003 (now 8), and Konstantin born December 16, 2006 (now 5). [ 3 ] According to the Petition for Divorce the parties separated on August 1, 2010. At that time the Petitioner left the Respondent and the matrimonial home and moved in with her current companion, Mr. Cookson. [ 4 ] Prior to this trial the parties agreed on the division of assets and debts and that no spousal support would be paid by one to the other.

They also agreed that they would share joint custody of their children. They, however, could not agree on the specifics of the parenting arrangements nor could they agree on the amount of child support to be paid. [ 5 ] The Petitioner proposed that she have primary care of the children and that the Respondent have care of the children on alternating weekends as well as Tuesday and Thursday evenings provided that the children are returned to her by approximately 7:30 p.m..

The Petitioner also proposed that there be a sharing of the children ’ s summer vacation, a sharing of the children ’ s Spring Break and Easter long weekends as well as block access by the Respondent during the children ’ s Christmas break from school. The Respondent requested an equal shared custody arrangement on a week-on week-off basis. [ 6 ] The Petitioner has also asked that the Court order the Respondent to pay her the table amount of child support as well as a proportionate sharing of the cost of the children ’ s before and after school care.

She also wants the order to have retroactive effect to the date of her Petition, giving credit to the Respondent for any child support that he has paid.

[ 7 ] The Respondent proposed that child support be based on an offsetting formula assuming that equal shared custody is ordered. It was also his position that no retroactive child support should be ordered because the child support that he has been paying was, according to him, agreed upon verbally by the parties. DIVORCE PROCEEDINGS [ 8 ] I will deal with the divorce first. [ 9 ] I am satisfied that all jurisdictional issues have been addressed.

I am satisfied too that there has been a permanent breakdown in the parties ’ marriage and that they have been living separate and apart since the 1 st of August 2010 and did not resume cohabitation at anytime since that date. I am satisfied too that there is no possibility of a reconciliation between the parties. The Petitioner ’ s Petition for Divorce is therefore granted and a Divorce Order will be issued. ISSUES [ 10 ] The outstanding issues for determination are: 1. The form of the parenting arrangements for the two children; and 2. Child support pursuant to both

section 3 and

section 7 of the Guidelines including whether retroactive child support should be ordered and, if so, in what amount. LEGISLATION [ 11 ] The applicable legislation is the Divorce Act R.S.C., 1985 and in particular sections 15.1, which deals with child support, and 16 which deals with child custody. I do not intend to quote all of the relevant provisions of the Divorce Act but note that sub-

section 15.1(3) provides that in making a child support order the court shall do so in accordance with the applicable Child Support Guidelines and, in making any custody order, sub-section 16(8) provides that the court shall take into consideration only the best interest of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. ANALYSIS - PARENTING [ 12 ] The evidence of the parties conflicted in many respects. [ 13 ] According to the Petitioner she was the primary care provider for the children prior to the parties ’ separation.

To use her words, the Respondent was not “ terribly involved ” in parenting the children before their separation due in part to his career in the Navy. She claimed too that he was a “ very harsh disciplinarian ” who often yelled at the children and spanked them in anger. She said that it was she who the children went to when they wanted assistance or comfort. [ 14 ] It was also the Petitioner ’ s evidence that it was she who enrolled the children in their various activities (dance, soccer, karate, Brownies and Guides) and who arranged their doctor and dental appointments, haircuts, vaccinations, etc..

She said that she was also the one who arranged their play dates and birthday parties.

[ 15 ] The Petitioner is employed full-time by the Canada Revenue Agency as an Insolvency Officer. She works extended hours Monday through Thursday in order to get Fridays off. She said she did that so their son did not have to go to daycare everyday and so that their daughter was not as rushed on Friday morning as she was Monday through Thursday. [ 16 ] The Petitioner ’ s parents offered evidence to the Court which was intended to support the evidence of the Petitioner. However, their evidence corroborated the Petitioner ’ s only to a very limited extend.

They live in Ottawa and their last visit with their daughter was for four days over the Thanksgiving weekend in October 2011. That was the only time that they observed the Petitioner with her common-law partner and the only time they observed the Petitioner caring for the children subsequent to her separation from the Respondent. At no time have they observed the Respondent caring for the children since the parties separated. [ 17 ] Even before the parties separated the Petitioner ’ s parents had only limited opportunities to observe the parties with their children.

Because of the geographic distance between their homes the only times they saw them were during vacations. Beyond that they spoke to their daughter on the phone fairly regularly. [ 18 ] Much of the Petitioner ’ s parents ’ evidence was based on what their daughter told them and what they believe. [ 19 ] The Petitioner ’ s common-law partner also gave evidence. It is clear that he and the Respondent are not on good terms. The Respondent applied for a Peace Bond against Mr.

Cookson just a few months ago. [ 20 ] According to the Respondent he and his wife shared the care of the children approximately equally prior to their separation. He said that when their son was three months old he went on parental leave for a period of nine months and was the primary caregiver to the children for the last two or three months of his parental leave. [ 21 ] He also said that while the Petitioner drove the children to school or daycare in the morning it was he who picked the children up every afternoon. He acknowledges that arrangement came into being because of their respective work schedules.

The Respondent is employed full-time with the Canadian Armed Forces - specifically the Navy. At the present time he works Monday to Friday, usually until 3:00 p.m. each day. [ 22 ] He gave evidence that he went to all of the children ’ s parent-teacher meetings whereas his wife went to none.

That does not appear to be in dispute but the Petitioner made the point that while the Respondent was at the parent-teacher meetings for their daughter she was at home caring for their son. [ 23 ] While the Petitioner may have arranged the children ’ s extra-curricular activities the Respondent said that he often drove them to those events and in some cases was the only parent of the two who attended their activities. For example he said the Petitioner never attended their daughter ’ s karate lessons. [ 24 ] The Respondent said that his career in the Navy has not prevented him from being an involved parent.

While the Petitioner claimed that the Respondent ’ s position required him to frequently be at sea the Respondent testified that in nine years he was away at sea a total of one year and that was not all at one time but was broken up over the nine years. He is now posted to shore and the earliest that he could be posted to a ship would be in 2013.

He said that even then he will not necessarily have to go to sea but if he does then he would be prepared to agree to the inclusion of a provision in the order that would state that the children would be with their mother while he is at sea but that the shared parenting arrangement would recommence once he returned from his sea duty. [ 25 ] He acknowledged that as between he and his wife he is more of a disciplinarian and is stricter with the children than his wife. However he said that he has not and does not spank the children.

He uses what he considers to be “ age appropriate ” forms of discipline including timeouts. [ 26 ] When the parties separated at the beginning of August, 2010 the Petitioner moved out of the matrimonial home and into Mr. Cookson ’ s apartment. The children remained living in the matrimonial home with the Respondent Monday through Friday and were in

the care of their mother on weekends. That arrangement lasted until October 23, 2010 (approximately three months) when the Petitioner then insisted that the children be placed in her care the majority of the time. Thereafter they were with their mother Monday through Friday and every second weekend. They were generally with their father the remaining weekends as well as Tuesday and Thursday evenings until 7:30 p.m.. The Respondent testified that he did not agree with the children living with their mother most of the time.

He has always maintained the position that parenting should be shared. [ 27 ] Even though the parties were not seeing eye-to-eye on parenting issues the Respondent said that they were nevertheless quite civil to each other and there were even occasions when he socialized with the Petitioner and her common-law partner. That seemed to change after the parties attended a Settlement Conference in November 2011.

He said that from that date forward he found the Petitioner and her partner to be less cooperative with him. [ 28 ] It is the Respondent ’ s position that the Petitioner and her partner then began to belittled him in front of the children calling him various names that his daughter has repeated to him. He believes too that the Petitioner is trying to squeeze him out of the lives of the children.

He attached to one of his affidavits transcripts of text messages sent to him by the Petitioner in which she pleaded with him to allow her to change the children ’ s surnames to her last name and, more significantly, to allow Mr. Cookson to adopt the children. [ 29 ] Finally, he believes that the children are used to being jointly parented by both their mother and their father and that they want to spend more time with him than is presently the case. [ 30 ] Based on the affidavits of the parties and what I have heard through the cross-examination process, I have come to the following conclusions: 1.

The parties did share the parenting of the children prior to their separation. Precise arrangements were influenced in part by their work schedules and not because one or the other loves the children more or less than the other. 2. As is not uncommon in many families one parent was responsible for arranging the children ’ s various activities, medical appointments and the like. In this case that parent was the Petitioner. When it came to getting the children to their various appointments and activities those responsibilities were shared.

The Petitioner generally took the children to school and daycare in the morning and the Respondent was responsible for picking them up in the afternoon. Both parties attended their extra-curricular activities but the Respondent attended more of their activities than did the Petitioner. 3. Because Mr. Malbeuf was off work earlier in the afternoon he often cooked the evening meal for the family. 4. Prior to their separation both parties participated in helping their daughter with her homework.

Also, the Petitioner acknowledged and I accept, the Respondent attended all of the parent-teacher meetings whereas the Petitioner attended none. 5. Both parties are capable of adequately caring for the children including providing for their physical, educational and emotional needs. 6. Of the two parties the Respondent is the more strict disciplinarian but I have not been convinced that he is so strict that his disciplinary measures have been inappropriate. 7. Immediately following their separation the Petitioner left the children in the care of the Respondent Monday through Friday for almost three months.

In neither of her two affidavits did she identify any serious deficiencies in his parenting during that time. 8. Regrettably the parties are not presently communicating constructively. More disturbing than that, there is strong evidence to confirm that the Petitioner has attempted to diminish the Respondent ’ s role as the children ’ s father in favour of her new partner.

[31] Attached to the Respondent’s affidavits are transcriptions of a number of text messages which the Petitioner acknowledgessending to the Respondent. In those messages she, on a number of occasions, asked the Respondent to allow her common-law partner toadopt the children and to allow her to change the children’s last names. She also called the Respondent a “sperm donor”. [32] The Petitioner tried to pass off her requests to allow her common-law partner to adopt the children as little more than anexpression of her frustration as if to suggest that those messages should not have been taken seriously.

She said that she would never takethe children away from their father. The Respondent took those messages seriously and I do as well.

They read in part, as follows: - “let wayne adopt them and leave so that kids can have happy childhood as they do now.” - “kids want moms last name. can u at least do so much for kids without fight?” - “put ur signature on wayne adopting kids and u r free?” - “why don t you let wayne to adopt them and have it as a closed case. u r dirty trying to force your kids living with u to.” - “I want kids last name to be same as mine. ​ need ur signature. can u pls provide with it?” - “I gave u an easy exit u want. give up the kids and u can go. that is what u wanted all along. not to pay for kids.” - “I take your silence as agreement as wayne adopting kids. when will u provide me with paperwork.?” - “We would like this done as we are expanding our family.” - “can u let wayne adopt the kids? u keep ignoring my question. he is the one supporting them and raising and that is what he wantsto do. so good with u?” [33] These “requests” by the Petitioner demonstrate how little the Petitioner respects the Respondent as a father to their children.

Theyalso suggest to me that she puts her own interests before that of the children. [34] In trying to determine what would be the best parenting arrangement for the parties’ children I have considered, among otherthings, a number of cases previously decided by this Court and others. For example, I’ve reviewed the decision of Goodfellow, J. inFoley v. Foley (1994), (NS SC), 124 N.S.R. 198 in which Justice Goodfellow set out a number of factors to beweighed when determining what would be in a child’s best interest when determining a parenting arrangement.

In addition to thedirection given by the Divorce Act, the Court is to consider, among other things, the physical environment in which the child would beplaced when in the care of his or her parents, the child’s wishes if they can be ascertained, the kind of role model each parent presents,the time that each parent has available to spend with the child as well as other factors such as discipline, cultural development, theemotional support that each parent can provide and the support that may be provided by extended family members. [35] I also reviewed the decision of Justice Goodfellow in Farnell v Farnell [2002] N.S.J. 491 in which Justice Goodfellow stated atparagraph 10: “Shared custody rarely in my experience works and only seems to where there is present an environment where the children thrive whenthe children are able to fluidly move from one home to another by reason of parents who are mature in circumstances and reside in sucha close proximity that the children can go back and forth themselves, continue in the same school, continue with whatever extra-curricular activities, church or other activities that they would normally engage in.

Such a situation is next to impossible to attain andcontinue when children live at long distances...” [36] In the present case the parties’ property agreement included an arrangement whereby the Petitioner and her partner bought out theRespondent’s interest in the former matrimonial home in Eastern Passage. The Respondent then purchased a home a short distanceaway from the former matrimonial home. His home is, in fact, closer to the children’s school than is the former matrimonial home.

Itwould be possible for the children to go from the home of their father to the home of their mother with relative ease and maintain contactwith their school and neighbourhood friends regardless of whether they are at the time staying with their father or with their mother. [37] I have also considered Bryden v. Bryden, 2005 NSSF 9 , 2005 N.S.S.F. 9 which was a decision of Justice Coady in which

he said, at paragraph 14, “...shared custody arrangements require greater cooperation and communication than do traditional jointcustody arrangements.” And further, at paragraph 15,“...it is the rare case, the rare parents and the rare children who can make week-on,week-off work in a way that is in the children’s best interest.” [38] I have also reviewed two recent decisions of Associate Chief Justice O’Neill in Murphy v. Hancock, 2011 NSSC 197 ,2011 N.S.S.C. 197 and Gibney v.

Conohan, 2011 NSSC 268 , 2011 N.S.S.C. 268 as well as my own decision in Hammond v.Nelson, 2012 NSSC 27 , 2012 N.S.S.C. 27. [39] Associate Chief Justice O’Neill in Murphy (supra) and in Gibney (supra) as well as I in Hammond (supra) tried to list variousconsiderations that the Court should take into account when trying to determine whether a shared parenting arrangement should beordered in any given case. Neither Associate Chief Justice O’Neill’s considerations nor my own were intended to be exhaustive. [40] In this case I believe what is particularly relevant is as follows: 1.

Both parents are capable of parenting their children. Since their separation the Respondent has had the care of the children byhimself and has had experience as a single parent. The Petitioner, after leaving the matrimonial home, immediately went to live with hercommon-law partner. Together they cared for the children independent of the Respondent. I believe that if need be the Petitioner couldalso care for the children as a single parent. Both parties are capable of providing for the children materially, emotionally,psychologically and in all other ways. 2.

The parties live in close proximity to each other and within the same school district. Whether the children are with their mother orwith their father they should be able to maintain the friendships that they now have, continue to go to the same school, continue to go tothe same before and after school care provider and continue in the same extracurricular activities. 3. The Court has no independent means of ascertaining the children’s wishes. They are eight and five years of age. They both go toschool.

They were accustomed to both parents caring for them before their parents separated as well as being cared for individually byboth parents since their separation. 4. I find it is in the children’s best interests to maintain an on-going relationship with both of their parents. 5. I am not prepared to say that the parties are unable to communicate. However, since their separation they have communicatedpoorly. If they each truly care about what is best for their children they will make the effort that is necessary to communicate moreconstructively and civilly.

Their refusal or inability to be more cooperative with the other parent may be a factor to consider in futurevariation proceedings.

Each of them is reminded of section 17(9) of the Divorce Act which says: “In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should haveas much contact with each former spouse as is consistent with the best interest of the child and, for that purpose, where the variationorder would grant custody of the child to a person who does not currently have custody, the court shall take into considerationthe willingness of that person to facilitate such contact.”(emphasis added) 6.

There is reason for the Court to believe that the Petitioner would attempt to diminish the Respondent’s role as father to the childrenif permitted to do so. CONCLUSION - PARENTING

CONCLUSION - PARENTING [ 41 ] I have therefore come to the conclusion, notwithstanding the poor level of cooperation between the parties since their separation and in particular over the past five or six months, that a more or less equal shared parenting arrangement is in the children ’ s best interest although the form of that shared parenting arrangement will be different from that proposed by the Respondent. A parenting

schedule that allows the children to have frequent contact with both of their parents, which does not interfere with their education, extra-curricular activities and social contacts outside of their immediate family, which allows them to be with each parent for reasonable periods of time (which permits each of their parents to actually parent their children as opposed to simply spending time with them) and which minimizes the need for the parties themselves to have face to face contact during transitions, would be in their best interest. [ 42 ] I have been given no good reason for why the parties ’ relationship has deteriorated since last November.

The Petitioner ’ s text messages suggest that it may simply be that she would prefer to uncomplicate her life by removing the Respondent from the picture. Whatever may be the reason, the parties demonstrated prior to November 2011 that although their marriage had broken down they were capable of cooperating with each other and even being quite cordial to each other.

They, as well as their current and former partners, must understand that it is in the children ’ s best interest that they make real efforts to put aside their personal differences and as much as is reasonably possible, work together in raising their children. [ 43 ] A custody order should never be designed to punish or reward the parents. It ’ s focus should be on the children and what is best for them. I therefore order the following parenting arrangement: 1. As agreed by the parties they will share joint custody of the children. 2.

Both parties will cooperate with each other as much as is reasonably possible to ensure the most appropriate care, upbringing and education of the children. 3. The parties will consult with the other before making any major developmental decision which could affect the children ’ s education, health or medical care, relationship with the other parent or general welfare and, except for emergency medical decisions that affect the children, neither will make any such major developmental decision regarding the children without the consent or acquiescence of the other party. 4.

Either party may authorize emergency medical treatment that may be required by either of the children provided they contact and inform the other party as soon as is reasonably possible of the nature of the emergency. 5.

Both parties will be entitled to receive information relating to the children such as school progress reports, medical reports, information regarding their recreational activities and the like and the parties will share with each other any information they receive concerning the children ’ s health, education, recreational activities and the like and will make reasonable efforts to keep the other informed of such matters relating to the children. 6.

Both parties will be entitled to attend any functions and meetings relating to the children that parents are normally entitled to attend such as school related events, medical and dental appointments, recreational activities and the like. 7. Both parties will inform the other of any changes to his or her home address, home phone number, work address, work phone number, e-mail addresses or any other means of contact. 8.

Neither party will make any attempt to formally or informally change the names of either of the children without first receiving from the other party their express written consent to do so or an order of a court of competent jurisdiction authorizing such a change. 9. Neither party will remove the children from the province of Nova Scotia with the intention of relocating the children without the

express written consent of the other party or an order of a court of competent jurisdiction in this province authorizing such removal. Further, neither party will remove the children from the province of Nova Scotia for any other purpose (including vacations) without first giving to the other party written advance notice of their intention to do so along with an itinerary of their travel plans and where and how they may be contacted in the event of an emergency. 10.

Neither party will change their residence (and therefore the residence of the children) without first giving to the other party written notice of their intention to relocate no later than 30 days prior to their move. If the change of residence may result in the need to vary the parenting times either party has with the children as a result of this decision, then 90 days advance notice is required. 11.

With the exception of the following times when the children will be in the care of the Respondent and subject to the “ special event occasions ” referred to in paragraph 13 below the children will be in the care of the Petitioner: ( ​ ) The children will be in the care of the Respondent every second weekend from Friday after school until the following Monday morning. (ii) In addition to the foregoing the Respondent will have the care of the children each Tuesday afternoon until the following Wednesday morning and each Thursday afternoon until the following Friday morning.

When school is in session his parenting times will commence Tuesday and Thursday after school and end just prior to their classes beginning on Wednesday and Friday morning. When school is not in session it will commence every Tuesday and Thursday at approximately 3:30 p.m. and end each Wednesday and Friday morning at 9:00 a.m.. 12. The parties will cooperate with each other to ensure that the children have access to all necessary homework materials, clothing items, toys and the like that they might reasonably require regardless of whether they are in the care of their mother or their father. 13.

During the following “ special event occasions ” the Petitioner and the Respondent will share the care of the children as follows: ( ​ ) Both parties will be entitled to up to four weeks of block parenting time with the children during the children ’ s summer vacation from school. No more than two of those weeks at any one time will run consecutive. Such weeks will run from Sunday to the following Saturday unless the parties mutually agree otherwise in writing.

In even numbered years, commencing in the year 2012, the Petitioner will have the first choice of scheduling her four weeks which choice she will make and convey to the Respondent in writing no later than May 15. The Respondent will then advise the Petitioner in writing of his four weeks no later than June 1and will continue to do so by June 1 of each even numbered year thereafter.

In odd numbered years, commencing in 2013, the Respondent will convey to the Petitioner in writing no later than May 15 his choice of his four weeks and the Petitioner will then advise the Respondent in writing of her four weeks no later than June 1. (ii) The parties will share the parenting of the children during the children ’ s vacations from school during the Christmas holiday season such that in even numbered years beginning in 2012 the Respondent will have the care of the children from the last day of school prior to the children ’ s Christmas vacation until 2:30 p.m. on December 25 when he will deliver the children to the Petitioner at her residence.

The Petitioner will then have the children in her care from 2:30 p.m. on December 25 up to and including the first day of the recommencement of school in the New Year after which the parenting arrangement referred to in paragraph 11 will resume. In odd numbered years commencing in 2013 the Petitioner will have the care of the children from the last day of school prior to the children ’ s Christmas vacation until 2:30 p.m. on December 25 when she will deliver the children to the Respondent at his residence.

The Respondent will then have the children in his care from 2:30 p.m. on December 25 up to and including the first day of the recommencement of school in the New Year after which the parenting arrangement referred to in paragraph 11 will resume.

(iii) The parties will alternate the care of the children during the children ’ s Spring Break from school with the Petitioner having the care of the children during their Spring Break in odd numbered years commencing in 2013 and the Respondent having the care of the children in even numbered years commencing in 2014.

For the purpose of this paragraph “ Spring Break ” is defined as including those weekdays that the children do not have to attend school but does not include the weekend days (Saturday and Sunday) which immediately bracket those days. (iv) Unless the parties otherwise agree in writing the parties will alternate the care of the children during the Easter weekend (which would include Good Friday and Easter Monday if the parent with the care of the children at that time is not required to go to work on that day) with the Respondent having the care of the children on the Easter weekend in odd numbered years commencing in the year 2013 and the Petitioner having the care of the children in even numbered years commencing in 2014. (

v) Regardless of the regular care arrangements on any given weekend the children will be in the care of the Petitioner each Mother ’ s Day from 9:00 a.m. until 7:30 p.m. and in the care of the Respondent each Father ’ s Day from 9:00 a.m. to 7:30 p.m.. 14. Whenever possible the Respondent will pick the children up from and return the children to their school (or care provider) if school is in session, so as to minimize the amount of contact that the parties themselves might have and therefore the amount of conflict that may ensue.

If school is not in session then the Respondent will pick the children up from and return the children to the residence of the Petitioner. It is expected and anticipated that the parties will both exhibit an appropriate degree of civility and cooperation when contact is necessary. 15. When the children are in the care of one parent they will be permitted to have reasonable contact with the other parent by way of telephone access, e-mail, text messages and the like. Such access will be at reasonable times and for reasonable periods of time. 16.

If at anytime in the future the Respondent is required to be at sea as a consequence of his employment then while he is at sea the Petitioner will have the physical care of the children. Upon the Respondent ’ s return the shared parenting arrangement as describe herein will continue. ANALYSIS - CHILD SUPPORT [ 44 ] In his Updated Statement of Income the Respondent said that he has a total annual income of $71,852.00. His 2010 Notice of Assessment indicated a total income of $73,580.00. No explanation was given for the discrepancy.

I have been told that he has not yet prepared his 2011 tax return and I ’ ve not been given his 2011 T4.

After reviewing his 2010 tax information and his more current pay statement, I have concluded that for child support purposes his income in 2010 was $73,580.00 and in the absence of more up-to-date information to indicate otherwise I find that $73,580.00 is also his income for child support purposes for the years 2011 and 2012. [ 45 ] Based on the Respondent ’ s income, the Child Support Guidelines provides that the table amount of child support for two children in 2010 and 2011 would be $1,027.00 per month. [ 46 ] The Petitioner ’ s financial information shows that in 2010 she had a total income of $55,154.00 and paid “ annual union, professional, or like dues ” of $747.00 leaving her with an income figure for child support purposes of $54,407.00.

Her 2011 tax return showed a total income of $47,907.00 and dues of $730.00 leaving her with a total income in that year for child support purposes of $47,177.00. [ 47 ] The Petitioner ’ s 2012 pay statements show that this year she is paid an annual gross income of $55,168.00 and pays dues of approximately $734.00 per year leaving her with an income for child support purposes of $55,434.00. [ 48 ] If it were not for the shared custody arrangement that I have ordered, on a prospective basis the child support that the Respondent would presumably have to pay to the Petitioner had she been awarded primary care of the children would have been $1,016.00 per month based on the tables that came into effect December 31, 2011.

Had the Respondent been awarded primary care the table amount that the

Petitioner presumably would have been ordered to pay is $774.00 per month. Whereas the Court has not been given sufficientinformation to make a thorough analysis of what might be an appropriate figure for child support based on the shared parentingarrangement that I have ordered (see Contino v. Leonelli-Contino, 2005 SCC 63 , [2005] S.C.J.

No. 65) I choose to adopt theset-off approach and order that the Respondent pay to the Petitioner the difference between the amount that he would otherwise pay and the amount that she would otherwise pay such that he will pay to her child support in the sum of $242.00 per month commencing the 1st day of May, 2012. [49] The only special or extraordinary expense for which the Petitioner seeks a contribution from the Respondent is the ongoingchildcare expense. Both children go to before and after school childcare. The cost is $30.00 gross per day or approximately $650.00 permonth.

That cost is incurred ten months of the year but not during the summer months of July and August. [50] It is appropriate that the childcare expense be shared by the parties proportionate to their incomes. Based on the Petitioner’sincome for child support purposes being $55,534.00 per year and the Respondent’s being $73,580.00 per year the Petitioner’s share ofthis expense will be 43% and the Respondent’s will be 57%.

Taking into account the tax savings that will be realized by the Petitionerthe Respondent will pay to the Petitioner the sum of $211.20 for each of the ten months that the children attend daycare (September toJune inclusive) in addition to the table amount referred to above. [51] Regarding the Petitioner’s claim for retroactive child support, I believe that this is an appropriate case to order the same.

Althoughit was the Respondent’s evidence that the parties had an agreement that no retroactive child support would be sought, that was not thePetitioner’s understanding and there is no evidence to support the Respondent’s position. The amount of child support that theRespondent paid to the Petitioner while the children were in her primary care was inadequate when compared to the table amount. [52] Although the Petitioner could have applied sooner for an order for interim child support she instead pursued a relatively early datefor a “final” divorce trial.

I am not going to deny her claim for retroactive support because she chose to forego an interim hearing. [53] After the parties separated on August 1, 2010 the children resided primarily in the care of their father until October 23. SinceOctober 23, 2010 the children have been living primarily with their mother. [54] The Petitioner explained that from August 1 until the end of October she and the Respondent continued to deposit their paycheques into a joint account out of which the mortgage and other household expenses were paid.

She therefore does not think it isappropriate that she should have to pay any child support to the Respondent for that period of time. The Respondent said that the partiescontinued to mix their finances until early September 2010. If that was the case then it might still be appropriate for the Petitioner to pay the Respondent child support for September and up to the 23rd of October. [55] Neither party has given me any documentation to confirm their evidence on this issue.

I therefore choose not to make anyretroactive order for the months of August, September or October 2010. [56] No child support was paid by either party to the other until October, 2011 when the Respondent began to pay to the Petitioner childsupport in the sum of $450.00 per month. [57] I’ve been given no reason why I should deviate from the table amount for the months of November 2010 to an including April,2012. In the years 2010 and 2011 the table amount for two children for a payer earning a total income of $73,580.00 was $1,027.00 permonth.

Therefore, before any adjustments, the total table amount owed by the Respondent to the Petitioner for the period November2010 to and including April 2012 would be $18,486.00. [58] The Respondent is however entitled to credit for the payments he made to the Petitioner (in lieu of the table amount) in the sum of$450.00 from October 2011 to April 2012 inclusive totalling $3,150.00 leaving the net sum of $15,336.00 owing.

[ 59 ] In addition, the Respondent has been contributing to the childcare expenses so he should receive credit for one half of the income tax savings realized by the Petitioner by having deducted the child support payments since their separation. [ 60 ] After the parties separated the Respondent paid 50% of the gross child care cost until September 2011 and since September 2011 he has been paying 60% of the gross cost.

Using the information that I found in the Petitioner ’ s 2010 and 2011 tax returns, and her 2012 pay statements and the Respondent ’ s 2010 tax return and his pay statements for 2011 and 2012 I have calculated the Respondent ’ s share of the tax savings realized (or to be realized) by the Petitioner from August 1, 2010 to April 30, 2012 to be approximately $2,800.00. After crediting him for that sum he is left with a balance owing to the Petitioner for retroactive support of $12,536.00.

SUMMARY - CHILD SUPPORT [ 61 ] In

summary, the Respondent will pay to the Petitioner prospective child support in the sum of $242.00 per month commencing May 1, 2012 and continuing on the first day of each month thereafter until otherwise ordered. In addition, the Respondent will pay to the Petitioner by way of a reimbursement of his share of the after tax cost of the childcare expense the sum of $211.20 which will be paid on the first day of each month commencing May 1, 2012.

This sum will be paid during each month of the year with the exception of July and August when the before and after school childcare expense is not being incurred. [ 62 ] The Petitioner will be entitled to claim the childcare expense as a deduction on her income tax return. [ 63 ] Unless the parties both agree otherwise all child support will be made payable to the Petitioner and paid through the office of the Director of Maintenance Enforcement. [ 64 ] The Corollary Relief Order will contain the usual provision requiring both parties to provide to the other copies of their income tax returns and Notices of Assessment each year no later than June 1 of the following year commencing with their tax returns and Notices of Assessment for the year 2012 which they will exchange no later than June 1,2013. [ 65 ] The Respondent will pay, as retroactive child support for the period November 2010 to and including April 2012, the sum of $12,536.00. [ 66 ] The Petitioner asked that the Respondent maintain, among other things, medical coverage through his employment for the benefit of both children.

I understand that both parties have medical plans for the children already in place and therefore I order that they both maintain those health plans through their employer for the benefit of the children for so long as it is legally possible under the terms of their plans.

To the extent that it is possible for the benefits offered by one plan to complement the benefits under the other, the parties should cooperate by using their plans to minimize their actual out-of-pocket health care expenses. [ 67 ] The Petitioner also asked that I order the Respondent to maintain or obtain life insurance coverage for the children. That issue was not raised until it was mentioned in the Petitioner ’ s pre-trial brief just a day or two prior to the trial. The Respondent did not have an appropriate opportunity to respond to that request. I am therefore not prepared to grant this relief.

However, I have the comfort of knowing that both parties already have a certain level of life insurance or similar protection through their employment that is intended for the benefit of the children. MISCELLANEOUS/COSTS [ 68 ] Because the Petitioner discharged her lawyer just prior to the trial I direct that counsel for the Respondent prepare the Divorce Order and the Corollary Relief Order. So that the Respondent is not burdened with the entire cost of the preparation of those documents

I order that the Petitioner pay to the Respondent costs in relation to the preparation of the Orders in the sum of $300.00 which I estimate to be approximately one half of the total cost that the Respondent will incur for that purpose.

That $300.00 will be offset against the retroactive child support leaving $12,236.00 in retroactive child support owing. [ 69 ] If either party wants to make additional submissions on the issue of costs they should write to the scheduling office to request additional time before me for that purpose. [ 70 ] Also, because of the amount of the retroactive child support to be paid by the Respondent, I am prepared to hear further submissions by both parties on how and by when that sum is to be paid, unless of course the parties are able to agree on those details. J.