Dokuchie v. Dokuchie, 2011 ONCJ 692

DRYDEN REGISTRY No. F0-10-000032-00 DATE: 2010·IX·01 CITATION: Dokuchie v. Dokuchie , 2011 ONCJ 692 ONTARIO COURT OF JUSTICE BETWEEN: FRANCESKA DIANE DOKUCHIE Applicant — AND — MATTHEW JASON DOKUCHIE Respondent Before Justice A. T.

McKay Heard on July 14, 2011 Reasons for Judgment released on September 1, 2011 Sarah Trach .......................................................................... for the applicant Franceska Dokuchie On his own behalf ............................................................. the respondent Matthew Jason Dokuchie MCKAY J.: BACKGROUND [ 1 ] The parties have one child, Nickolas, born April 18, 2007. Parties were married on November 20, 2006, after cohabitating for approximately two years. They separated on March 1, 2010. [ 2 ] The parties were living in Alberta, when Nickolas was born.

Approximately two months later, they relocated to Dryden. One of the reasons for relocating was the fact that Mr. Dokuchie’s father was ill and resided in Dryden. Upon relocating to Dryden, they moved in with Mr. Dokuchie’s parents and resided with them until April of 2008. [ 3 ] The parties have difficulty communicating with each other in a civil fashion regarding Nickolas. Ms. Dokuchie seeks custody, along with child support. She has no difficulty with Mr. Dokuchie having significant access time with Nickolas.

However, she takes the position that they are unable to co-parent and joint custody would not be appropriate. Mr. Dokuchie’s response is that he should be awarded custody of Nickolas. His position is that he has always been involved with extensive parenting time, and that a sole custody order in his favour is more appropriate. EVIDENCE OF MS. DOKUCHIE [ 4 ] At the time of trial, Ms. Dokuchie was 28 years of age. She indicated that after Nickolas’s birth, she suffered from post partum depression. She had some trouble feeding and changing Nickolas and accordingly asked Mr. Dokuchie to help with those tasks.

She was then prescribed medication for the post partum depression. She indicated that after the medication took effect, she was able to fully care for Nickolas. Her evidence is that her doctor has never raised any concerns about her health or her parenting. [ 5 ] Ms. Dokuchie was on a maternity leave for a period of one year after Nickolas’s birth. In April of 2008, the same month that they moved from Mr. Dokuchie’s parents’ home to their own, Ms. Dokuchie began working at a local care dealership as a shuttle driver. Essentially she worked from 7:45 a.m. to 5:00 p.m. each day. At that point, Mr.

Dokuchie was working for a business in Dryden. His work would take him away from Dryden for up to two weeks at a time. Accordingly, they arranged a babysitter for Nickolas during the day. Ms. Dokuchie would drop Nickolas off in the morning and pick him up in the evening. [ 6 ] Ms. Dokuchie gave evidence that she has always been the one who took care of Nickolas’s day to day needs. She has been the parent who arranges for Nickolas’s medical and dental care. She has been the parent who has made child care arrangements for Nickolas when necessary.

[ 7 ] In March of 2009, Mr. Dokuchie’s employment was terminated by his employer. From that point on, Mr. Dokuchie stayed home and parented Nickolas while she was at work. On March 1, 2010, the parties separated. Ms. Dokuchie moved to her father’s house. Mr. Dokuchie moved out of the matrimonial home for a few days, but then moved back in. From the point of the separation onward, Ms. Dokuchie maintained a calendar which set out parenting time for each of the parties. Those calendars were filed as an exhibit in these proceedings. The Court accepts the calendars filed by Ms.

Dokuchie as an accurate record of parenting time. [ 8 ] On April 12, 2010, Mr. Dokuchie left Dryden to look for employment in Alberta. He provided Ms. Dokuchie with one day notice, and she had to make alternate child care arrangements for the following day. On April 27, 2010, Mr. Dokuchie returned to Dryden for a three day period and saw Nickolas. On April 30, he returned to Alberta for work. [ 9 ] On June 7, 2010, Mr. Dokuchie returned to Dryden. Ms. Dokuchie’s evidence is that upon any return, he would provide her with one day notice that he would be taking parenting time with Nickolas. Ms.

Dokuchie indicated that generally, during telephone conversations, Mr. Dokuchie cannot communicate with her in a respectful and cooperative way. Her evidence is that he has degraded her, yelled at her and called her names and hung up on her. For example, she testified that she has called her a whore, bitch, and a slut. [ 10 ] Ms. Dokuchie’s evidence is that on June 21, 2010, Mr. Dokuchie unilaterally decided that they would have a shared parenting arrangement with equal parenting time. She disagreed with his position, but did not do anything to try to prevent it, because Mr.

Dokuchie indicated that he would simply attend at daycare and pick Nickolas up anyway. Rather than become embroiled in conflict, Ms. Dokuchie retained counsel and started this application. [ 11 ] On July 3, 2010, Mr. Dokuchie was away from Dryden for a week. During that time, Ms. Dokuchie enrolled Nickolas into a subsidized daycare program. In September of 2010, Mr. Dokuchie again went to Western Canada for employment purposes. He returned October 6, 2010. It is Ms. Dokuchie’s view that the

schedule imposed by Mr. Dokuchie is difficult for Nickolas. She testified that Nickolas was reacting poorly after access visits. Part of the reason for that she believed was conflict between the parties. Nickolas was exposed to arguments between the parties, and according to Ms. Dokuchie, saw his father yelling, swearing and degrading her on a consistent basis. [ 12 ] On October 18, 2010, Justice Bishop made a temporary Order. That Order awarded custody to Ms. Dokuchie, and specified access for Mr. Dokuchie. In addition, Mr. Dokuchie was ordered to pay child support. Mr.

Dokuchie had not paid any support from March 1, 2010, until the Order of Justice Bishop dated October 18, 2010. At that time, based upon the sworn financial statement of Mr. Dokuchie, his annual income was $23,700.00. Therefore, the guideline amount that he was ordered to pay on a temporary basis was $202.00 per month. The Order left the issue of retroactive support for the trial judge. In May of 2011, Ms. Dokuchie learned that Mr. Dokuchie’s actual 2010 income was $42, 265.00.

Eventually, a consent Order was made varying the support payable pursuant to the temporary Order to the appropriate guideline amount of $389.00 per month, commencing October 1, 2010. [ 13 ] Ms. Dokuchie testified that after the temporary Order was made, the conflict involved at exchanges was having a negative effect on Nickolas. She then suggested that Mr. Dokuchie’s access be extended. It was increased in a way that minimized the number of exchanges and the contact between the parties. Her evidence is that the new access

schedule worked better for Nickolas since it avoided him being caught in situations of conflict between the parents. [ 14 ] On two occasions, there have been referrals to Child and Family Services from an unknown source regarding Nickolas. Ms. Dokuchie’s evidence is that on both occasions, the Society investigated and quickly closed their file. Her suspicion is that Mr. Dokuchie was the person who contacted the Society. [ 15 ] For the past year, Ms. Dokuchie has been living with her new partner at his residence. She indicated that her new partner does not attempt to parent Nickolas, but supports her as necessary.

She describes Nickolas as a loving child with a great personality. She said he has no behavioural or medical issues. She also describes Mr. Dokuchie as a good father and a capable parent. However, the situation continues that the two of them cannot cooperate effectively to co-parent Nickolas. In September, Nickolas will begin school in a French immersion program. Ms. Dokuchie’s father’s first language is French. She has made all the arrangements to enrol Nickolas in school she also indicated that at one point she tried to speak to Mr. Dokuchie about dental expenses.

His viewpoint was that the support payments that he makes should be sufficient to cover any dental expenses. When the school year starts, Nickolas will attend the before and after school program while she is working. There may be some costs involved in that. EVIDENCE OF MR. DOKUCHIE [ 16 ] Mr. Dokuchie gave evidence that he has been extensively involved in parenting Nickolas. He indicated that originally he was working very long hours, but he also helped to parent. He also indicated that both sets of grandparents helped. When his employment was terminated in 2009, he parented during the day.

He indicated that when he works out of town, he talks to Nickolas by telephone. Mr. Dokuchie’s evidence is that he stopped working in Western Canada on June 6, 2011. He has established a new business in Dryden. Essentially, the business has only produced a few hundred dollars in income to this point. He confirmed that he could be working in Western Canada and that he had turned down a good position there. He indicated that even with his new business, he probably will not work very far outside of Dryden. Mr. Dokuchie denies calling the Child and Family Services Agency.

Similarly, he denies refusing to pay Nickolas’s dental costs. [ 17 ] Mr. Dokuchie confirms that he knew that his income for 2010 was more than the amount outlined in his sworn financial statement, and that he simply didn’t respond to do anything to change the amount of support ordered. [ 18 ] Mr. Dokuchie agreed that it would be best to minimize contact between the two parents because of conflict. He indicated that exchanges that take place at the daycare centre are less stressful for Nickolas. His view is that exchanges of Nickolas at school would be an effective way of dealing with the problem.

DECISION [ 19 ] The Court is required to review the evidence and determine what Order would be in the best interests of Nickolas. Mr. Dokuchie does not dispute the fact that there are often arguments between the parents. His evidence is that both parties are prone to call names and treat each other in a disrespectful fashion. I accept the evidence of Ms. Dokuchie that she has been called degrading names on a number of occasions. The parties seem to agree that they cannot effectively communicate in order to share decision making with respect to Nickolas.

Given Nickolas’s young age he requires a stable, predictable structure. Ms. Dokuchie has provided that, and has taken the lead for much of his life in terms of day to day decision making and parental care. Her approach has been consistent with the best interests of Nickolas. While there is clearly a place for both parents in Nickolas’s life, in this situation joint custody would not be in Nickolas’s best interest. Ms. Dokuchie shall have sole custody of Nickolas. Mr. Dokuchie may make inquiries and may be given information by Nickolas’s teachers, school officials, doctors, dentists and health care providers. Ms.

Dokuchie will sign all necessary consents to ensure this happens. DECISION REGARDING CHILD SUPPORT [ 20 ] Ms. Dokuchie asks that the Court impute income of $43,000.00 per year, which is consistent with Mr. Dokuchie’s 2010 income. His income in 2010 was actually lower than in previous years. Indeed, Mr. Dokuchie himself indicates that he could earn a six figure income in Western Canada if he wished to, but he chooses to work in Dryden. He is uncertain what level of income the new business will produce. [ 21 ] One may understand Mr.

Dokuchie’s desire not to leave the Dryden area to work in order to maximize his parenting time with Nickolas. However, he does have a financial obligation to support Nickolas. His choice of beginning a new business, the plan for which does not seem very detailed or ambitious, is not appropriate given his support obligation regarding Nickolas. The Court will impute income of $43,000.00 per annum for Mr. Dokuchie. Mr.

Dokuchie shall pay child support in the guideline amount of $389.00 per month, commencing August 1, 2011. [ 22 ] With respect to the retroactive claim for child support, the Court makes the following comments. Mr. Dokuchie knew his obligation to provide financial support on the date of separation in March of 2010. He did not do so. When Ms. Dokuchie retained counsel in June of 2010 he did not pay child support. The first support that was paid came pursuant to the temporary order of Justice Bishop made October 18, 2010. That order was based upon an income figure contained in Mr.

Dokuchie’s sworn financial statement which was significantly lower than reality. Mr. Dokuchie agrees that he knew that. His behaviour was irresponsible. Counsel for Ms. Dokuchie has calculated a retroactive support claim as follows: 1. March, 2010 to September 2010, 7 x $389.00 = $2,723.00; 2. October, 2010 to December 2010, 3 x ($389.00 - $202.00) = $561.00; 3. January, 2011 to July, 2011, 7 x ($389.00 - $202.00) = $1,309.00 TOTAL $4,593.00 The retroactive support claim is allowed. Mr.

Dokuchie shall pay the ongoing support, plus $200.00 per month towards the arrears until the arrears are paid in full. [ 23 ] Ms. Dokuchie’s annual income is $24,207.00. The Court has imputed annual income of $43,000.00 for Mr. Dokuchie. Mr. Dokuchie shall pay 64% of any special or extraordinary expenses, as reported to Ms. Dokuchie to the Family Responsibility Office, for Nickolas. Ms. Dokuchie shall provide receipts for any

section 7 expenses claimed. Mr. Dokuchie shall provide Ms. Dokuchie with a copy of his notice of assessment for the preceding taxation year on or before May 31 of each year. Child support shall be adjusted and take effect June 1, if applicable. For as long as Ms. Dokuchie is claiming

section 7 expenses she shall provide Mr. Dokuchie with a copy of her notice of assessment for the preceding tax year on or before May 31 of each year. ACCESS [ 24 ] Mr. Dokuchie shall have reasonable access on reasonable notice, which shall include 1. Commencing August 19, 2011 and every alternate weekend from Friday at 5:00 p.m. until Tuesday morning, when Mr. Dokuchie shall return Nickolas to daycare or school, as applicable; 2. Commencing August 25, 2011, and every alternate Thursday thereafter from 5:00 p.m. until Friday morning when Nickolas shall be returned to daycare or school, as applicable; 3.

The parties shall be entitled to one week of Christmas access, with Mr. Dokuchie having the first week in even numbered years. Ms. Dokuchie shall have the first week in odd numbered years. Mr. Dokuchie shall have Christmas Eve from 5:00 p.m. until Christmas Day at noon, with Ms. Dokuchie having Christmas Day at noon until Boxing Day at 5:00 p.m. in even number years. In odd numbered years, Ms. Dokuchie shall have Christmas Eve until 5:00 p.m. until Christmas Day at noon, with Mr. Dokuchie having Christmas day at noon until Boxing Day at 5:00 p.m.

The Christmas holidays shall be defined as beginning at 5:00 p.m. on the last day of school, and ending at 5:00 p.m. on the day before the return to school; 4. The parties shall have alternate March breaks with Mr. Dokuchie having Nickolas during March break of odd

numbered years, and Ms. Dokuchie in even numbered years. The March break is defined as beginning at 5:00 p.m. on the last day of school and ending at 5:00 p.m. on the day prior to the return to school; 5. Ms. Dokuchie shall have Thanksgiving weekend in even numbered years, and Mr. Dokuchie shall have Thanksgiving weekend in odd numbered years. The Thanksgiving weekend is defined as beginning at 5:00 p.m. on the last day of school and ending at 5:00 p.m. on the day before school resumes; 6. Ms. Dokuchie shall have the Easter long weekend in even numbered years and Mr.

Dokuchie shall have the Easter weekend in odd numbered years. The Easter weekend is defined as beginning at 5:00 p.m. the last day of school and ending at 5:00 p.m. on the day prior to school resuming; 7. Ms. Dokuchie shall have the May long weekend in odd numbered years and Mr. Dokuchie shall have the May long weekend in even numbered years. The May long weekend is defined as beginning at 5:00 p.m. the last day of school and ending at 5:00 p.m. on the day prior to school resuming; 8. The parties shall each be entitled to two non-consecutive weeks of summer holidays. Mr.

Dokuchie shall have the first choice of weeks during even numbered years and shall communicate his choice to Ms. Dokuchie on or before May 31 of that year. Ms. Dokuchie shall have the first choice in odd numbered years and shall communicate that choice to Mr. Dokuchie on or before May 31 of that year. A week is defined as beginning at 5:00 p.m. on Friday and ending the following Friday at 5:00 p.m. 9. Mr. Dokuchie shall have Father’s Day, if otherwise not on his scheduled days of access, from 9:00 a.m. until Monday at 9:00 a.m.; 10. Ms. Dokuchie shall have Mother’s Day, if it otherwise falls on Mr.

Dokuchie’s access time, from 9:00 a.m. until Monday at 9:00 a.m. COSTS [ 25 ] If costs are an issue, the parties may make submissions on the return date. Released: September 1, 2011 Signed: Justice A. T. McKay