2023 MBKB 180, 2023 MBKB 180

Date: 20231208 File No.: FD 20-01-24540 (Winnipeg Centre) Cited as: Friesen v. Friesen Indexed as: 2023 MBKB 180 COURT OF KING’S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: CHERYL NICOLE FRIESEN, ) ) John D. Ramsay for the petitioner petitioner, ) ) -and- ) ) DYLAN GREGORY FRIESEN, respondent. ) ) ) ) ) On his own behalf for the respondent ) Judgment Delivered: ) December 8, 2023 THOMSON J.

INTRODUCTION [ 1 ] The parties separated after about eleven years of marriage on December 1, 2018, having had three children of the relationship, born July 2010, March 2012, and April 2015. [ 2 ] When this trial commenced before me, the issues contested by the parties related to parenting time and to child support, both ongoing and retroactive. [ 3 ] The latter retroactive support issue was subject of settlement by the time all the evidence was heard by me, and before final submissions. It ought to have been resolved years before, and responsibility for this dismal delay rests predominantly with the respondent.

Determination of the ongoing child support issue follows resolution of the parenting time contest. [ 4 ] It is the position of the petitioner that the current

schedule first codified in an interim order made by consent on June 22, 2022, and then altered slightly by the petitioner (and acquiesced in by the respondent), ought properly to become the fixed and final

schedule going forward. The respondent disagrees and seeks equally shared parenting time. The other matter between them, which I view as subsumed within the parenting dispute, relates to final decision-making authority. [ 5 ] A great deal of energy and time was expended by each party in the proceedings before and at trial in the identification, the magnification and, at times, the gross exaggeration of the inadequacies and failures of the other - as parent, as spouse, and as a human being. No purpose is served in reciting details of that respective testimony in this judgment, or in mining the outsized volume of

electronic communications between them entered as exhibits at trial. [ 6 ] This is not to say that there is not merit to some of their respective criticisms. The petitioner has been selfish, controlling and episodically unreasonable in the placement of limits and conditions on the respondent’s time with their children. Virtually to the end, the respondent abdicated his legal responsibility to provide appropriate financial support to his children.

He pled ignorance, but also sought to rely upon his scripture-based condemnation of the petitioner, initially delivered verbally and, in later times, in a barrage of abusive electronic communications. [ 7 ] Generally, neither impressed me nor distinguished themselves in their trial testimony. But I received no evidence sufficiently damaging to displace my general conclusions that each loves his/her children, and likely possesses the capacity and the will to satisfy their basic best interests when they are not focused on the prosecution of their case and on tearing each other down for leverage in that enterprise.

ANALYSIS AND DECISION • Parenting Time/Decision-Making [ 8 ] I am ever mindful of the court’s duties under the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp .), respecting the best interests of the three subject children in my crafting of a parenting order and

schedule (see: ss. 16(1) to (6) , inclusive). [ 9 ] Initially, at the date of separation and throughout the last five years, the children have been primarily in the care of the petitioner but have also spent meaningful and positive time with the respondent. The current arrangement sees them with the respondent alternate weekends and every Thursday overnight, with additional time during the summer school holdiays, and on special holidays. This is essentially what was recommended in the September 2022 parenting assessment conducted pursuant to an order of the court.

Those recommendations and the division of parenting time in favour of the petitioner over such a lengthy period of time after separation are both significant factors in my ultimate decision. [ 10 ] A further consideration in assessing any major alteration to the current balance of parenting time between the parties are the educational arrangements made by them for their children; all are currently home-schooled by the petitioner. [ 11 ] As a consequence of the global pandemic beginning in about March 2020, the older two children, who were then registered at and attending a public school, first began to be home-schooled by the petitioner.

At the commencement of the following school year in September 2020, the parties seem to have agreed that all three children (the youngest would then begin kindergarten) would be home- schooled. Since then, none has attended public school, and the petitioner has been exclusively tasked with their education. She has arranged her work

schedule to accommodate this responsibility, and benefits from the childcare and transportation assistance provided by her mother, who testified at trial. [ 12 ] I received no significant evidence about the academic progress of the three children or the petitioner’s qualifications to teach elementary school.

Having said that, the respondent raised no concerns, and I heard none expressed by the assessor, either in her report or in court, or by anyone else. [ 13 ] Respecting the respondent’s plan were he to be successful in securing an order from me for shared parenting on a week-on/week- off rotation, his intention is to equally assume home-schooling responsibilities.

It is also evident the respondent expects to rely heavily upon his fiancée, whom he testified would be moving to Winnipeg from the United States in the spring to marry him and to set up a household with him and his children (when they are with him). [ 14 ] In terms of the functioning of that household, the respondent has home-based self-employment, which to date has not generated any meaningful income. To provide financially for himself and his family he has relied, and seems to intend to continue to rely, upon the proceeds of sale from the former family home, which I expect will be exhausted soon.

It then seems likely he will have to pursue employment away from the home. [ 15 ] The respondent’s evidence on this subject, on his assumption of an alternate week parenting and home-schooling arrangement, and on the role(

s) his fiancée might play in the care and education of his children, was opaque and detail deficient. His brief testimony on these matters emphasized that she has experience in home schooling, and that she has met the children and spent time with them on a few occasions. I know little else about her, despite her linchpin status in the respondent’s plan. He did not call her as a witness. I do not know why. I heard from five other witnesses in the respondent’s case.

Her absence creates a critical gap in his evidence and, taken together with her presumptive role as the children’s half-time educator while resident with them on alternate weeks, undercuts his case for a shared parenting order. [ 16 ] In contrast, the petitioner’s fiancé (a construction contractor) was involved in the court-ordered assessment and testified at trial. The petitioner has been in that relationship for two years, residing with him and their child (born January 2022). [ 17 ] Moreover, the parties have been largely incapable of productive or respectful dialogue since at least their separation.

The respondent shoulders the majority of the fault for this situation on the evidence I received. He also acknowledges repeated breaches of the terms of the May 2, 2022 interim order regarding communications between him and the petitioner, by his bulk texting and by his departure from the stricture against addressing non-child-related topics.

This feature of his behavior, and the intense conflict between the parties for years now, militates against shared parenting generally. [ 18 ] Further, an aspect of the respondent’s sought-after scenario, which assumes each parent will teach their children during his/her alternate weeks of parenting time, is utterly unrealistic; they are together incapable of the collegiality undoubtedly necessary to the crafting of a curriculum, and to conferencing about the progress and needs of their “students”. [ 19 ] For all the foregoing reasons, it is in the best interests of these three children to remain primarily in the care of the petitioner, and not to make any major alterations to the current parenting schedule.

It is also in their best interests that the respondent continues his

parenting time them. [ 20 ] Given that conclusion, and the commanding role played for years by the petitioner in terms of time and educational involvement with the children, it is appropriate that the petitioner retain final decision-making authority after meaningful consultation with the respondent (see: s. 16.3 of the Act ). [ 21 ] The terms and conditions of my disposition on parenting issues, and of my parenting order, shall then include that: • the respondent shall have parenting time on alternate weekends, and on Thursdays overnight, as per the current arrangements, or as otherwise agreed; • the petitioner shall have final decision-making authority respecting the children on major issues, after consultation with the respondent; • communications between the parties shall be limited to child-related topics only, and conducted exclusively by email, except in emergencies; • the children’s summer school holidays, winter school break and spring break, shall mirror those days and times specified by the local school division, and shall be shared on an equal basis by the parties, and in the case of summer school holidays, in two-week parcels, or as otherwise agreed; • each shall have, respectively, Mother’s Day or Father’s Day with their children between 9:00 a.m. and 9:00 p.m. should the day fall outside of their time in the parenting schedule; • in-province travel shall be permitted by either party during their respective parenting time, and out-of-province travel by either party during their respective parenting time shall be permitted, provided each deliver to the other a written itinerary, consent forms and contact information, at least 45 days in advance, or as otherwise agreed; and, • the petitioner shall maintain possession of the children’s passports, unless required by the respondent for travel. • Ongoing Child Support and s. 7 Expenses [ 22 ] Respecting income determination, agreement was reached during the case management phase that the petitioner’s total annual income for child support purposes be imputed to $29,000. [ 23 ] The respondent asked that his total annual income be set at $38,500, which he said would be consistent with his income as at the date of separation.

That submission lacks both a legal and an evidentiary foundation. [ 24 ] The testimonial and documentary evidence received at trial regarding the respondent’s annual total income in the years since separation, and currently, clearly supports the petitioner’s submission that imputation is called for to achieve a fair and proper child support arrangement (see: s. 19(1) (

a) of the Federal Child Support Guidelines, SOR/97-175 ). The respondent’s historical employment as a certified autobody painter has established a floor for attainable annual employment income easily into the +$40,000 range, and his preference for (at least to date) non-remunerative “artistic endeavours” ought not to deprive the children of the requisite child support. [ 25 ] The respondent’s total annual income for child support is, therefore, imputed to be $42,300, resulting in a monthly table payment of $799, which shall commence December 1, 2023. The parties shall equally share s. 7 expenses.

ASSESSMENT REPORT EXPENSE AND DIVORCE [ 26 ] The costs incurred for preparation of the assessment report, as ordered by the court, shall be shared equally by the parties. [ 27 ] The requirements of the Act having been satisfied by the evidence received at this trial, a divorce judgment is granted, and has been signed. COSTS [ 28 ] Costs may be spoken to, failing agreement. J.