L.V. PETITIONER - v. -, 2018 SKQB 331

REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 331 Date: 2018 11 29 Docket: FLD 325 of 2018 Judicial Centre: Regina, Family Law Division BETWEEN: L.V. PETITIONER - and - N.Z. RESPONDENT Counsel: Robert Taylor for the petitioner Sharon Martin for the respondent JUDGMENT TOCHOR J. November 29, 2018 INTRODUCTION [ 1 ] The petitioner, L.V. [L.V.], applies for the following: (

i) An order declaring that the respondent stands in loco parentis to N.V. born -----, 2001; (ii) An order for joint custody and primary residency of: - C.Z., born -----, 2004; - D.Z., born -----, 2008; and - Cy.Z., born -----, 2010;

(iii) An order that the respondent have access to the three children every second weekend from Friday at 5:00 pm to Sunday at 7:00pm; (iv) An order that the respondent provide to the petitioner s. 3 child support and s. 7 expenses for the four children pursuant to TheFamily Maintenance Act, 1997, SS 1997, c F-6.2 and the Federal Child Support Guidelines, SOR/97-175; (

v) An order compelling the parties to exchange income tax returns and adjust child support accordingly on June 1, 2019 and everyyear thereafter; and (vi) Costs. [2] The respondent, N.Z. [N.Z.], does not take serious issue with every application; rather, he focuses his objection to the application for primary residency of C.Z., born September 12, 2004. Thiswas the focal point of the oral hearing. [3] The parties began cohabiting in 2003 with one child of the petitioner from a previous relationship: N.V. born -----, 2001 (now aged 17).

The parties subsequently had three other children together: C.Z. born -----, 2004 (now age 14); D.Z. born -----, 2008 (now age 10); and Cy.Z. born -----, 2010 (now age 8) [4] Throughout the relationship, L.V. was the primary caregiver of the children and was primarily responsible for all aspects of their care, including school and extracurricular activities.

N.Z. was oftenaway from home during the course of his employment. [5] When the parties separated in September 2017, the four children resided with L.V. in the family home, and N.Z. hadparenting time with the three younger children every second weekend. [6] This arrangement continued until August 2018 when C.Z. moved in with N.Z. because it was easier for him to bedropped off at his summer job.

While L.V. was not consulted in advance about this change, she did not immediately object because shewas advised by N.Z. that C.Z. would return to her residence at the end of the summer. [7] However, later in August she received a text message from N.Z. saying that C.Z. would not be returning to live with herat the end of the summer. Since that time, C.Z. has lived with N.Z. and, aside from a weekend visit in October, has refused to have any contact with L.V.She therefore initiated these applications. ISSUES [8] In determining these applications, there are three primary issues to be addressed: (

i) The primary residence of C.Z.; (ii) Parenting arrangements; and (iii)

Section 3 support and s. 7 expenses Primary Residence of C.Z. [9] The issue of whether C.Z. should live with N.Z. or return to L.V. was the central focus of argument in chambers. [10] L.V. wants the status quo restored and applies to have her home designated as C.Z.’s primary residence.

N.Z., however,argues that C.Z. wants to live with him, and he cannot force C.Z. to have contact with L.V. [11] The paramount consideration, of course, is the best interests of C.Z., and this must take into account factors which mayaffect his physical, mental and emotional well-being. [12] The legal principles regarding interim applications dealing with custody and access arrangements are well known, and arecent example is found in Babich v Babich, 2015 SKQB 22, 466 Sask R 259 where Megaw J. said: 27 I must have regard for the direction given by Laing J. in Guenther v Guenther (1999), (SK KB), 181 Sask R83(Sask QB) [Guenther].

That decision set forth a reaffirmation of principle that existing parenting arrangements should not be interferedwith on an interim application unless the children are at risk or there are other compelling circumstances justifying a variation. The courtstated as follows: 5. What this application ignores and there have been others recently, is the consistent case law which states that courts should not varyinterim custody arrangements whether legal or de facto in the absence of evidence that the child or children are in some way at risk, orother compelling reason. …

[13] In this case, the existing access arrangements were not the subject of a court order, or of a written agreement betweenthe parties. Instead, they were the de facto arrangements borne out of what the parties experienced since September 2017. [14] The fact that C.Z. lived with L.V. for nearly one year after the separation weighs heavily in favor of restoring primaryresidence with her.

There is no evidence to suggest that C.Z. is in some way at risk while living with her, and no compellingcircumstances for a change in residence was put forth by N.Z. [15] Another consideration is the wishes of the child; however, it is important to note that courts are extremely careful togive this only limited consideration. [16] Helpful guidance is found in M.L.S. v N.E.D., 2017 SKQB 183 [M.L.S.] where Goebel J. said: [234] As a starting point, despite the age of the child there is no principle of law that the express wish of a child is absolute and, in itself,determinative of the issue of custody: Johns v Hinkson (1996), (SK KB), 151 Sask R 168 (QB), A.J.R. v M.R.A., 2013SKQB 223, 422 Sask R 151, Kittelson-Schurr v Schurr, 2005 SKQB 90. [235] It is important that neither parents, nor the court, abdicate their decision-making power to a child who may not have theexperience nor context to make adult decisions, or who may be motivated by factors that are not in their best interests in the long term.Rather, the court must engage in a case-by-case assessment of “due weight” having regard to all of the evidence to determine if thechild’s wishes correspond with his or her best interests. [17] Further guidance is found in Howe v Whiteway, 2015 SKCA 72, 460 Sask R 253 [Howe] where Caldwell J.A. said: [5] … In keeping with the principle of maximising parental contact, it is the role and duty of the custodial parent to facilitate a child’saccess to the access parent.

This is straightforward and clear. In McGinn v McGinn, 2006 SKQB 105 [McGinn], Madam Justice Wilsonlaid out this obligation in these terms: [12] It was the position of [the custodial parent] that the children cannot be forced to live at [the access parent’s] home, or even havevisits with [the access parent] that may be ordered by the court. I refer [the custodial parent] to the decision of Madam Justice Ryan-Froslie in Card v. Perdrizet, U.F.C. 710/93, J.C.S., handwritten fiat dated September 10, 2003. As stated by Ryan-Froslie J. “...Children’s‘wishes’ should never be determinative of parenting arrangements.

They are simply one factor a court considers when structuring achild’s living arrangements.” As set out in the Card, supra, decision, when a parent says he or she cannot force a child to return to theother parent’s care the court is troubled. It is troubling because it means the parent has abdicated his or her parental role and no longerexercises control over a child.

Ryan-Froslie J. goes on to state as follows: Parents need to recognize that in abdicating their role to their children, whether that child is six or 16, they are harming the child and theyare setting themselves up for future confrontations with their children. If parents cannot make their children attend visitations or return tothe other parent, the Court may question whether they can make them attend school, do their homework, abide by curfews, or abstainfrom the use of drugs or alcohol.

Put simply, where a custodial parent—i.e., the parent having custody of a child—prevents or hinders the access parent—i.e., the parentto whom the child has access rights—from communicating with or seeing the child, the custodial parent breaches their parentalobligations to the child. (Emphasis added) [18] Interestingly, in Howe, the Court of Appeal placed no weight on the wishes of a child who objected to spending timewith the father, at para. 5: [5] In the appeal hearing, Ms. Howe said TDH has expressed a desire not to spend time or communicate with Mr. Whiteway.

We haveno evidence of this; regardless, it is neither here nor there. … (Emphasis added) [19] Here, it is apparent C.Z. does not wish to have contact with L.V. Accepting this fact, however, does not automaticallyauger in favour of C.Z. living with N.Z. Although C.Z.’s wishes may be relevant, they are not decisive. [20] Another consideration is the willingness of N.Z. to facilitate and encourage access to L.V..

The authorities make it clearthat parents are required to encourage a child’s relationship with a non-custodial parent. [21] In M.L.S., Goebel J. referred to s. 17 of the Divorce Act, RSC 1985, c 3 (2d Supp) and said: [144] The

section also highlights the obligation on the court to meaningfully consider the willingness of a parent to facilitate contactwith the other parent when making a parenting determination: Potzus. This has been described as a positive legal duty on parents topromote a child’s relationship with the other parent, even where a child is resisting contact: Howe v Whiteway, 2015 SKCA 72, 460 SaskR 253 [Howe] and Aalbers v Aalbers, 2011 SKCA 156, 385 Sask R 141 [Aalbers]. Jurisprudence favours parents who are best able tofoster a positive relationship between the child and the non-custodial parent.

Where all other evidence is balanced, this factor may be a“tipping point” in custodial determinations. [22] Goebel J. also referred to Jackson v Jackson, 2016 ONSC 3466 where it was held: [63] … In this regard, the case-law has established the following principles respecting a party’s obligation to promote compliancewith a custody and access order:

a) A party cannot simply leave the questions of custody and access up to the child. To do so amounts to an abdication of parentalresponsibility generally and a breach of the party's positive obligations under the order (Godard, [Godard v Godard, 2015 ONCA 568,387 DLR (4th) 667]; McGinn v. McGinn, 2006 SKQB 105, 2006 SKQB 105 (Q.B.); Blair v. Blair, (ON SC), [1995]

O.J. No. 2962 (S.C.J.); Howe v. Whiteway, 2015 SKCA 72, 2015 SKCA 72 (C.A.); Gharabegian v. McKinney, 2008 CarswellOnt 7884(S.C.J.); Quaresma, Supra [Quaresma v Bathurst, [2008] OJ No 4734 (SCJ); K. (B.) v. P.(A.), [2005] O.J. No.3334 (S.C.J.); Hatcher, [Hatcher v Hatcher, (ON SC), 2009 CarswellOnt 1765 (SCJ); Sickinger, Supra [Sickinger vSickinger, (ON SC), [2009] OJ No 2306 (SCJ), aff'd [2009] OJ No 5178, 2009 ONCA 856 (CA)]; Haywood, Supra[Haywood v Haywood, 2010 ONSC 5615 , 2010 CarswellOnt 7701 (SCJ].

As Quinn, J. stated in Geremia, Supra [Geremia vHarb, (ON SC), 2007 CarswellOnt 446 (SCJ): Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. Achild who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school orotherwise misbehaves. The job of a parent is to parent. … [23] In these circumstances, it is incumbent on N.Z. to take appropriate steps to facilitate C.Z.’s time with L.V. Yet, there isno evidence he did this.

Importantly, there is no mention of any efforts to persuade or encourage C.Z. to have contact with her. [24] Further, N.Z. did not live up to his obligation to follow a court order specifically requiring access. On October 26, 2018,Brown J. allowed an adjournment of these application so N.Z. could prepare affidavits in response. This order also imposed a conditionrequiring C.Z. to spend five days plus overnights with L.V. between October 26 and November 9, 2018.

Aside from one weekend visit,this access did not occur. [25] N.Z.’s unwillingness to foster appropriate access with L.V., and to comply with a court order requiring such access, alsoweighs heavily in favor of an order for primary residence with L.V. [26] In assessing the best interests of C.Z., I have also considered the considerable amount of evidence with respect to thechallenges he appears to be facing at school.

Given the conflicting affidavit material, and the fact that he has experienced some learningissues in previous years, I am unable to conclude that living with N.Z. since the start of the school year has been the sole cause of thesedifficulties. Nonetheless, it appears that C.Z.’s learning challenges have increased since September 2018. [27] I have also considered the evidence of the parties as to the conduct of the other, including assertions of alcohol abuse, orensuring medication is taken by the children.

I am troubled by the accusations of drinking and driving by N.Z.; however, there isconflicting evidence and I unable to come to any definitive conclusions in this regard. [28] In the end analysis, after careful consideration of all of the evidence, I conclude it is in C.Z.’s best interests to return tolive with his mother and siblings. This will reinstate the arrangements previously in place for nearly one year, and will facilitate contact with bothparents.

Parenting Arrangements [29] It was not contested that N.Z. stands in loco parentis to N.V., born -----, 2001. [30] It was also not contested that the primary residence of the youngest two children should be with L.V. [31] Therefore, I order that the parties have joint custody of C.Z., D.Z. and Cy.Z., and that their primary residence is withL.V. [32] In keeping with the arrangements earlier agreed to by the parties, I order that N.Z. shall parent the three youngestchildren every second weekend from Friday at 5 pm to Sunday at 7 pm, and at any additional times that may be agreed upon by theparties.

Section 3 Support and

Section 7 Expenses [33] L.V. also applies for an order requiring N.Z. to pay child support in accordance with ss. 3 and 7 of The Family LawMaintenance Act, 1997 and the Federal Child Support Guidelines. [34] L.V. disclosed her income in the past three years as follows: 2017 $54,353.00 2016 $56,530.00 2015 $45,320.00 [35] N.Z. provided his income tax return for 2017 which indicates a total income of $67,733.62.

While L.V.’s incomecalculations for N.Z. include an additional amount for his farming income, N.Z. avers that the farming income is already included in histax return, and I have no basis to dispute this. [36] Accepting N.Z.’s income is $67,733.62, the interim child support payable for four children is the sum of $1,486.70 permonth commencing December 1, 2018. In addition, N.Z. shall pay 55.5% of any s. 7 expenses and L.V. shall pay 45.5% of thoseexpenses. Costs

[ 37 ] The final matter to be addressed is costs. Rule 15-25(2) of The Queen’s Bench Rules provides a presumption that a successful party is entitled to costs in a family law proceeding and, in these circumstances, there is nothing to displace that presumption. [ 38 ] Therefore, in consideration of all of the circumstances, and in the exercise of my discretion, I order that costs be paid by N.Z. to L.V. in the sum of $400.00

SUMMARY OF ORDERS [ 39 ] In

summary, I make the following interim orders: (

i) There will be a declaration pursuant to The Family Maintenance Act, 1997 , that the respondent, N.Z., stands in loco parentis to the child, N.V., born -----, 2001; (ii) Pursuant to s. 6(1) of The Children’s Law Act, 1997 , SS 1997, c C-8.2, the parties shall have joint custody of the three children: C.Z., born -----, 2004; D.Z., born -----, 2008; Cy.Z., born -----, 2010 And the primary residence for the three children shall be with the petitioner L.V.; (iii) The respondent shall deliver C.Z. to the care of the petitioner before noon on Saturday December 1, 2018, or at such other time that day as may be agreed upon; (iv) Pursuant to s. 6(1) of The Children’s Law Act, 1997 , the respondent shall parent the three children every second weekend from Friday at 5 pm to Sunday at 7 pm, and for any additional time as may be agreed upon by the parties; (

v) The respondent’s weekend parenting time shall commence at 5 pm on Friday December 14, 2018, unless otherwise agreed by the parties; (vi) Pursuant to s. 6(1) of The Children’s Law Act, 1997 , the respondent, N.Z., shall pay interim child support to the petitioner L.V. in the sum of $1,486.70 per month for the four children in accordance with s. 3 of The Family Maintenance Act, 1997 and the Federal Child Support Guidelines , as well as 55.5 % of any s. 7 expenses.

These amounts shall be paid on the first day of each month commencing December 1, 2018. (vii) The parties will exchange income tax returns every year by May 30, and will promptly provide to the other party any notices of assessment or re-assessment, and child support will be adjusted every year thereafter effective June 1 in accordance with the Federal Child Support Guidelines , until the children are no longer children within the meaning of The Family Maintenance Act, 1997 . (viii) The respondent, N.Z., shall pay costs, fixed in the sum of $400, to the petitioner, L.V., forthwith. J. M. D. TOCHOR