MCCONNELL (KRISKO) and KRISKO, 2010 ONSC 6960

CITATION: MCCONNELL (KRISKO) and KRISKO, 2010 ONSC, 6960 COURT FILE NO.: 4216/99 -01 DATE: 2010/12/17 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) NATALIE RITA MCCONNELL (KRISKO) Applicant ) ) ) ROBERT MACLEOD FOR THE APPLICANT ) ) ) - and - ) ) ) KIM RUDOLPH KRISKO Respondent ) ) ) KIM RUDOLPH KRISKO SELF REPRESENTED ) ) ) ) ) ) HEARD: September 27, 28, 29 and 30, 2010 THE HONOURABLE MR. JUSTICE J.R. TURNBULL OVERVIEW OF THE FACTS [ 1 ] The parties met while they were studying law and medicine at Queen’s University. They were married in 1994.

The early stages of their marriage, when they resided in Hamilton, were filled with varying forms of conflict. In late 1995, Mr. Krisko, who was working as a lawyer in Hamilton, went to Dubai in the United Arab Emirates to investigate business opportunities in that country. When he returned, his wife had vacated their apartment and they were formally separated. He determined that there were wonderful opportunities in Dubai to open an immigration consulting practice and therefore, he decided to move to that country.

[ 2 ] In early 1997 he did move to Dubai. Ms. McConnell followed him there after she had an opportunity to realize she could use her medical skills at the American Hospital which had just been constructed in that city. [ 3 ] In September 1997 she gave birth to their first child, Rachael on December 21 st , 1997. She continued working as a medical officer at the American Hospital on a contract basis. Mr. Krisko was attempting to build up a clientele in his business. Nevertheless, based on the evidence before this Court it was an unstable marriage and Ms.

McConnell looked upon her husband as being too controlling and too secretive. In the summer of 1999, Ms. McConnell was pregnant with their second child. She gave birth to Nolan on September 21 st , 1999. She had learned earlier in the summer that she was not being offered a family physician position at the American Hospital because she had failed an oral examination. She refused to continue to work a medical consultant which she had done for the previous three years. [ 4 ] I find that she was very unhappy in her marriage and began making plans to return to Canada.

An email which she sent to her mother in September 1999 clearly confirmed her dissatisfaction and her decision to get out of the situation in which she found herself. [ 5 ] She made arrangements to contact the Canadian Consulate to obtain an emergency passport for Rachael. Rachael’s passport was still in the possession of Mr. Krisko subsequent to a family visit to Alberta in the summer of 1999. Her mother came to Dubai to visit them but I have little doubt that the real purpose for her visit was to assist Ms. McConnell in returning to Canada with the two children. Mr. Krisko and Ms.

McConnell underwent some additional counselling in an effort to resolve the differences in their marriage and subsequent to that counselling Rachael’s passport was returned to Ms. McConnell. In November 1999, she returned to Canada with her mother and the two children for what was ostensibly a temporaty visit. I have no doubt that she knew at the time that she left the United Arab Emirates that she would not be returning. [ 6 ] Subsequently, she retained counsel and obtained an ex parte motion giving her interim custody of the children. [ 7 ] Thereafter litigation ensued. Mr.

Krisko came to Canada, presumably to visit with Ms. McConnell’s family and the children at Christmas, only to learn that a Court order had been issued on December 10 th . He described in detail how Ms. McConnell threw the order at him in a restaurant after his arrival at Pearson International Airport and before he was even able to see the children. Ms. McConnell did not seriously dispute that recitation of facts. [ 8 ] I only comment on these issues to express dismay with respect to the procedure which was followed. One would have hoped that knowing Mr.

Krisko was coming to Canada, that a proper Notice of Motion on notice would have been given to him so that he would have had an opportunity to make representations in a timely way before Marshall, J. While I recognize that the matter was brought back before Wallace, J. for a full hearing in January 2000, there is no question in my mind that the status quo was already cast. [ 9 ] Thereafter a series of motions were brought by Mr. Krisko to attempt to obtain increased and regular access with his children.

He ultimately decided that he would not live full time in Simcoe because he wanted to remain in Dubai to build up his immigration practice. In Dubai, revenue earned is not subject to income tax. However, it is subject to other non specified service fees and levies but none of that evidence was put before the Court. [ 10 ] Ms. McConnell opened a family medical practice in Simcoe and has carried on practice as a family physician since that time. The two children have primarily resided with her. [ 11 ] Mr.

Krisko initially alternated spending three weeks in Canada and three weeks in Dubai for three or four years while the children were in their pre-Kindergarten years. He felt the early years of a child’s life are the critical formative years and thus, it was important for him to spend as much time as possible with his children. His aunt and uncle purchased a condominium in Simcoe and have allowed him to use that when he is in Canada. He testified and I accept that he is not the beneficial owner of the condominium and that he has been allowed to use it with no charge due to the kindness of his aunt and uncle.

His uncle recently passed away and the condominium is presently owned by his aunt. [ 12 ] The litigation reached a boiling point in 2004 when it was called for trial before Kent, J. After some evidence was heard on the first day of trial, the parties, with the assistance of counsel, were able to negotiate an order which was signed by Kent J. relating to custody and access. It has been the order which has governed the relationship between the parties from 2004 to the present time.

It is this order that both parties in this trial seek to have varied with respect to custody, child support, access rights and various ancillary rights relating to the children and their parents’ roles in those matters. [ 13 ] In 2006, Mr. Krisko brought a motion seeking leave of the Court to take the children to Dubai for Christmas vacation. He sought additional other relief. Because of the short notice given to Ms.

McConnell the motion was adjourned sine die by Marshall, J. and never brought back on for hearing. [ 14 ] Again, in September 2007 he brought another motion seeking essentially the same essential relief as in the 2006 motion. A cross-motion was brought by Ms. McConnell in which she requested that an assessment should be ordered pursuant to

section 30 of the Children’s Law Reform Act. Mr. Krisko’s motion for an order permitting him to take the children to Dubai for three weeks was dismissed by Taylor, J. The applicant’s motion was adjourned to a case conference and it is the matter which has resulted in the trial of this action. [ 15 ] Pursuant to the consent order of this Court in 2008, Gary Direnfeld M.S.W. was appointed to undertake a family assessment pursuant to

section 30 of the Children’s Law Reform Act. Report of Mr. Direnfeld is found in the trial record and while not entered as an exhibit the parties acknowledged that it would constitute evidence in the proceeding before the Court. The parties agreed that I should simply read the report and subject to minor examination in chief by Mr. MacLeod, Mr. Krisko was permitted to cross examination extensively. [ 16 ] Mr. Direnfeld has done an exemplary job in preparing his report. He met with Nolan and Rachael on two occasions and with each of the parties on two occasions. At the request of Mr. Krisko he met with him a third time and then received a further written

submission from him dated November 14 th , 2008. [ 17 ] Mr. Direnfeld’s report was written December 10 th , 2008 and in an addendum to that report can be found in the trial record, he acknowledged that he had received the parenting plan from Mr. Krisko but did not feel that anything in it was particularly pertinent to the findings that he made in his report. [ 18 ] In that respect, I must disagree with Mr. Direnfeld. Mr.

Krisko’s parenting plan of November 14 th , 2008 clearly indicated that he was no longer seeking sole custody of the children and that a continuation of the existing joint custody arrangement would be satisfactory to him. [ 19 ] Mr. Direnfeld made specific findings which I find are important. He determined that Mr. Krisko was a controlling individual who in an effort not to be controlled, gives responses and takes positions which always leave him leeway to continue to angle to another position. He noted that even in his discussion with Mr.

Krisko, he felt that the respondent was trying to control the conversation. Ms. McConnell testified that one of the reasons she left the marriage was that Mr. Krisko was so controlling and secretive. [ 20 ] With respect to Ms. McConnell he found that she was an emotionally needy person and that she was concerned almost more with her own emotional needs than she was with the needs of her children. She easily appeared in my view to confuse her emotional needs with the best interests of the children.

The best example of that is the series of intimate relationships she has had with individuals since her return to Canada. She seemed to fail to understand the damage that was being done to the children by her continuation of an abusive relationship with Michael Kenney, who clearly was not liked by her children. By the time of trial she was living with Jack Carreira since January 2010. Unfortunately the report of Mr. Direnfeld did not refer to the fact that Mr. Carreira was going to move into the residence and live with her. Mr. Direnfeld was not asked by Mr. MacLeod about the relationship with Mr.

Carreira and the counseling he gave to Ms. McConnell as to when it would be appropriate for Mr. Carreira to move into the residence. Mr Carreira was not called as a witness and therefore not subject to cross examination as to when he actually became intimate with Ms. McConnell, when he began spending the nights at her residence and when he moved into the residence. Unfortunately, the Court does not have any information from the children, other than through their parents and through an indirect oblique comment made by the children made about Mr.

Carreira two years prior to this trial about how they feel about having a third man intimately involved in their mother’s life. [ 21 ] In her motion brought at the time she sought the appointment of a

section 30 assessment, Ms. McConnell sought sole custody of the children. At the outset of this trial, she abandoned that position in face of Mr. Direnfeld’s recommendation that the status quo (joint custody) remain in place. [ 22 ] Mr. Direnfeld denied her that request and recommended in his well written report that the present joint parenting arrangement continue as per the order of Kent, J. He made a series of other recommendations including a clear recommendation that a trip to be Dubai not be permitted for the children until they at least reach the age of 18.

He determined that the ongoing conflict between the parents is a matter of significant stress to the children. Ms. McConnell has told the children that they may never return to her residence. Mr. Direnfeld expressed concern about her comments and feels that this issue of a trip to Dubai is a matter which is adversely affecting the well being of the children. Mr. Direnfeld felt that it is an absolute necessity that there should be closure on this issue or the matter will just continue as a significant stressor in the children’s lives and could lead to depression, withdrawal and anxiety.

He expressed some concern that Rachel could become a depressed adult and subordinate herself to dominating relationships. He further stated that Nolan may use passive/aggressive techniques to be a controlling person. Mr. Direnfeld stated unequivocally that in his view, the parental conflict had emotionally abused Nolan. Mr. Direnfeld felt that if the remedies he urged the court to consider were implemented, perhaps the children will be relieved from some of the stress they have been experiencing and give them a chance to live outside of the parental conflict. [ 23 ] Mr.

Krisko has given a number of factors to the Court to assure the Court that if the children were allowed to visit him in Dubai he would return them pursuant to the order of this Court. First, he is a member in good standing of the Law Society of Upper Canada. Second, he would be subject to being charged with abduction pursuant to

section 282 of the Criminal Code of Canada if he were not to return the children as required by a court order. Third, he would arguably have difficulty renewing his passport if an outstanding warrant for his arrest existed in Canada. Without his passport he is unable to remain in the United Arab Emirates and carry on his business.

Fourth, his overriding concern for the well being of his children should assure the Court that he would not do anything to make it impossible for them to visit his family members in Alberta or to spend meaningful time with his mother and their step-brother Michael Kenney. [ 24 ] I find in the evidence that is in the best interests of the children that the issue of the trip to Dubai be put to bed once and for all so as to reduce any conflict or concern in their minds. There is a concern that has been raised by Mr. MacLeod, on behalf of Ms. McConnell that there is no way that a court order can be enforced in Dubai.

I do not have evidence before this Court that the United Arab Emirates is signatory to the Hague Convention and we do not have evidence before the Court that a custody/access order of this Court would be recognized and enforced in the United Arab Emirates. [ 25 ] In the circumstances I have weighed the benefits and the risks involved in having the children go to Dubai. In the end, it is the well being of the children which must be considered to be most important.

While travelling to Dubai and seeing different areas of the world would undoubtedly be of some benefit to the children, the underlying continued anxiety which exists between their parents and the proliferation of motions if this matter is not dealt with in a firm and final way, outweigh the benefit of the travel to that country by the children. Therefore, it is ordered that the children shall not be permitted to travel outside of continental Canada and the United States with either parent until she/he has attained the age of 18 years of age. [ 26 ] I find the recommendations made by Mr.

Direnfeld to largely be in the very best interests of the children. [ 27 ] I would be remiss if I did not indicate that in my view, Mr. Krisko has been an exemplary father. He has made every effort possible to maintain a meaningful father role with his children in the most difficult of circumstances. It was suggested through the trial that he should be criticized for failing to give up his practice in Dubai. I do not think that is appropriate. It is clear that his children love him and while they would like to have more time with him, I am not convinced that he would necessarily have more time with his

children if he was resident in Canada working as a lawyer. [ 28 ] Ms. McConnell has clearly been a good mother to her children though I must say her exercise of discretion in her personal life raises serious questions about the long term effects her behavior will have on her children. She is clearly a very articulate and bright lady but she too, like Mr. Krisko, is a very controlling individual. I have a sense that she is a very career minded woman who has put her career at least on an equal standing with that of the well being of her children.

Therefore it does not surprise me that these two individuals have been locked in constant litigation for almost ten years. [ 29 ] Mr. Direnfeld further recommended that Ms. McConnell be able to

schedule extracurricular activities even though they may occur during Mr. Krisko’s access time with the children. At present, he is generally in Canada for five to eight weeks at a time and then in Dubai for a similar period. Mr. Direnfeld felt that an order not permitting the children to participate in such activities would deny them the chance to learn new skills and pursue activities of particular interest to them. I agree with his opinion that this would not be in the best interests of the children. Mr.

Krisko should, however, be permitted to take the children to such activities when they are scheduled in his access times. CHILD SUPPORT [ 30 ] Mr. Krisko claims that he earns between $50,000.00 and $60,000.00 per year. He has filed financial statements for the year ending December 31 st , 2006 and December 31 st , 2007. He testified in chief that he earns about $60,000.00 per year. He has given copies of other financial statements for the years 2009 and 2010 to Mr. MacLeod but those were not put in evidence. He was not seriously cross examined on them.

He sought an order that child support be suspended and that each of the parties pay their own expenses with respect to the care of the children. [ 31 ] Mr. MacLeod argued that income should be imputed to Mr. Krisko because he has not provided sufficient evidence, independently verified, with respect to the income he is earning from his business. Ms. McConnell argues that it is illogical that he would remain in Dubai earning only $50,000.00 to $60,000.00 per year when he could live closer to his children and when he could earn more money in Canada as a practicing immigration lawyer. [ 32 ] Mr.

Krisko swore under oath that he would probably earn $60,000.00 in 2010. The onus is upon Mr. Krisko to prove his income and that can be done in a variety of ways. The financial statements which he has presented to the Court are self serving and controlled by him. There is no independent method by which they can be verified and he did not even have an auditor or independent accountant look at them and verify that they are accurate. He did not present to the Court the invoices or a

summary of the invoices to verify the information given to the Court. [ 33 ] Ms. McConnell testified that she is drawing about $210,000.00 a year from her medical practice. She operates her practice through a professional corporation and thus, what she is capable of earning and what she decides to draw, are different amounts. She testified that in 2010, the revenues from all sources received by the Corporation were $530,000.00.

I find on the evidence that she is capable of earning $300,000.00 per year after paying expenses in her medical office. [ 34 ] At first glance, the discrepancy in income between these parties is significant. I am concerned with the expenses Mr. Krisko faces in having to travel to and from Dubai which are in the vicinity of $7,000.00 per year together. Furthermore, he has the responsibility of $14,400.00 of non-deductible child support. I am also taking into account the fact that Mr.

Krisko’s extended family lives in Alberta and he has the responsibility of paying for flights at least once per year to and from Alberta for himself and the two children. [ 35 ] However, Mr. Krisko entered as exhibits the unaudited financial statements for Kim Krisko Management Services for 2006 and 2007. The gross revenues in 2006 were approximately $829,000.00 and resulted in a net profit payable to Mr. Krisko of approximately $50,000.00. He testified that the 2007 gross revenues were approximately $620,000.00.

He explained the drop in revenue as being due to the closure of some of his immigration consulting offices. Nevertheless, he maintained his income was approximately $50,000.00 on such revenues. Without providing any financial information to support it, he estimated that his 2010 income will be approximately $60,000.00. [ 36 ] However, Mr. Krisko is a lawyer and represented himself in this trial. His decision not to provide detailed and substantiated verification of his office receipts, expenses and disbursements is his responsibility.

He could have had an auditor review his books and provide an audited statement for each year that he is obliged to pay child support. For reasons only known to him, he has chosen not to do so. [ 37 ] Having heard his evidence and considering the weakness of the documentation provided to the Court, I impute a salary of $60,000.00 to Mr. Krisko. Mr. MacLeod provided the Court with a Divorce Mate Calculation which indicates that a $60,000.00 tax free salary in Dubai would amount to an $83,500 gross salary (for line 150 purposes) in Canada.

Based on that income, it is ordered that pursuant to the Child Support Guidelines Mr. Krisko shall pay $1200.00 per month in child support for the two children of the marriage commencing the first day of January, 2011. CONCLUSION: [ 38 ] It is ordered that the following paragraphs of the order of Kent J. dated October 5, 2004 are deleted: 6, 8, 11, 12, 13, 14, 15, 16,

17, 18, 20 and 21. The remaining paragraphs of that order shall remain in full force and effect to the extent that they do not conflict with any provision of this order. [ 39 ] It is ordered that the applicant shall not move the residence of the children outside the jurisdiction of their current schools and the high schools they would naturally attend in due course. [ 40 ] It is ordered that the children, Rachel and Nolan, shall be restricted from travelling outside of the continental United States and Canada until her/his 18 th birthday.

This restriction shall be placed on their passports. [ 41 ] It is ordered that the applicant and respondent may travel with the children anywhere in the continental United States and Canada (including Newfoundland and Vancouver Island) during their regular residential, access and/or holiday time as provided in the order of Kent J. dated October 5, 2004. [ 42 ] It is ordered that neither child shall be removed from school for the purpose of travel holidays except in the case of family emergency.

Any such emergency travel must still be within the geographic areas described in the foregoing paragraph of this order. [ 43 ] It is ordered that the parent travelling with the children during their access or holiday time in accordance with the order of October 5, 2004 shall not need the written travel permission of the other parent. [ 44 ] It is ordered that the applicant shall have sole custodial authority regarding the children’s education. The respondent may communicate with the school and attend parent-teacher interviews but only for the purpose of obtaining information.

The applicant alone shall be authorized to direct the children’s education. [ 45 ] It is ordered that the respondent’s participation in the children’s school trips shall be limited to twice per child per year. [ 46 ] It is ordered that the applicant or the respondent not discuss with the children any aspect of the past parental conflict or their respective versions of the family history. [ 47 ] It is ordered that the applicant shall be solely responsible for enrolling the children in reasonable extra-curricular activities.

If these activities are scheduled during the respondent’s time with the children, he shall have the responsibility of getting the children to and from the activity. The applicant shall not

schedule such activities so as to undermine the respondent’s parenting time. [ 48 ] It is ordered that in the event that the respondent returns from the United Arab Emirates to live permanently and full time in Canada, the parenting

schedule shall not be altered without further order of the court or the written consent of the parties. [ 49 ] It is ordered that the applicant is to encourage and permit electronic communication between the children and the respondent.

It is further ordered that the applicant facilitate telephone contact with each child for a minimum of 15 minutes duration at least one time per week. [ 50 ] It is ordered that the respondent shall pay to the applicant child support for the two children of the marriage in the amount of $1200.00 per month pursuant to the Child Support Guidelines based on an imputed income of $83,000.00, commencing the 1 st day of January, 2011, such order being made having regard to the respondent’s international travel and his extra travel expenses.

COSTS [ 51 ] I will receive written submissions from the parties with respect to costs if they cannot resolve them themselves. Mr. MacLeod can file his costs submissions and cost

summary on or before January 10th, 2011. Mr. Krisko is to serve and file a reply costs submission on or before January 25, 2011. Mr. MacLeod may serve and file a brief reply costs submission on or before January 30 th , 2011. ___________________________ TURNBULL, J. DATE: December 17, 2010 CITATION: MCCONNELL (KRISKO) and KRISKO, 2010 ONSC, 6960 COURT FILE NO.: 4216/99 -01 DATE: 2010/12/17

SUPERIOR COURT OF JUSTICE - ONTARIO NATALIE RITA MCCONNELL (KRISKO) Applicant -and- KIM RUDOLPH KRISKO Respondent BEFORE: The Honourable Mr. Justice Turnbull COUNSEL: Robert MacLeod, for the Applicant Kim Rudolph Krisko, Self Represented REASONS FOR JUDGMENT The Honourable Mr. Justice Turnbull DATE: December 17, 2010