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Villeneuve v. Hrycuik, 2002 SKQB 413

2002-10-18

                                                                                                                           2002 SKQB 413

 

DIV.                                                                                                                              A.D. 2002

No. 68                                                                                                                                 J.C.S.

 

                                                     IN THE QUEEN’S BENCH

                                                   (FAMILY LAW DIVISION)

                                          JUDICIAL CENTRE OF SASKATOON

 

BETWEEN:

 

AVA MICHELLE VILLENEUVE

                                                                                                                                PETITIONER

 

                                                                     - and -

 

DARREN JAMES ELI HRYCUIK

                                                                                                                             RESPONDENT

 

 

Ava Michelle Villeneuve                                                                                       on her own behalf

 

L. Belloc-Pinder                                                                                                  for the respondent

 

                                                                                                                                                     

 

JUDGMENT                                                                                                      WILKINSON J.

 

October 18, 2002

                                                                                                                                                     

 

 

[1]                  The primary issues are:

 

1.         Custody and access; and

2.         Division of property.

 


The issues are complicated by the fact the parties live five and one-half hours away from each other and to date the father has borne the entire burden of transporting the child for purposes of access. The property division is affected by the terms of an ante-nuptial agreement. The mother also claims repayment of monies advanced to the father from a personal injury settlement she received in the year of separation. She says the advances were a loan, the father says they were a gift. The mother was self-represented at trial and the evidence is not in a very satisfactory state. The evidence on valuation is primarily opinion or hearsay.

 

BACKGROUND

 

[2]                  The parties were married on October 15, 1994 and separated four years later in November of 1998. Their son, Kaden was born on August 25, 1996. Prior to marriage the wife had worked as a hairdresser but was unemployed at the date of marriage due to injuries she suffered in a motor vehicle accident in 1994. At the time of trial she continued to suffer from fibro myalgia and limited range of movement affecting her ability to do hairdressing other than for short periods of time.

 

[3]                  The husband, Darren, is a farmer in the Wakaw area who farms together with his parents. Two days before marriage he presented Michelle with an ante-nuptial agreement designed to keep their property separate. His main concern was protecting the family farm. Schedules to the ante-nuptial agreement identified Darren’s net worth as $315,000 and Michelle’s as $30,000. Both parties acknowledge the agreement is valid and governs the division of property between them.

 

[4]                  The specific provisions of the agreement will be addressed later on. In summary, it was agreed their existing property and any related increase in value would be kept separate. They would contribute to household and living expenses commensurate with income, by deposits to a joint account. On divorce, their proportionate contributions would determine how the joint account, and any property purchased from the joint account, would be divided. They could chose whether to make capital contributions to the farm residence or other after-acquired property. The party keeping the farm residence, on separation or divorce, was to return any capital contributions made by the other. The party keeping any other after-acquired property would reimburse the fair market value of the other’s capital contributions, as determined by an appraisal process. Loans or gifts between the parties would be considered imperfect or unenforceable unless evidenced in writing. Darren agreed to pay Michelle a lump sum of $10,000 on marital breakdown, and an additional two percent of any increase in his net worth for each year of cohabitation, to a maximum of fifty percent, but payable in equal annual instalments over ten years, without interest.

 


[5]                  After marriage, the parties bought a mobile home for approximately $60,000 with a deposit of $3,000. The home was placed on land leased from Darren’s parents. Darren was careful to keep the farm and household expenses separate. The farm income and expenses went into one account while the joint account was used for household and living expenses. During marriage, Darren purchased some additional farmlands with his parents as joint owners and the acquisition was financed by $130,000 mortgage. It was assisted by Darren’s parents putting up an additional quarter section of their own by way of security. The three quarters of land purchased in the joint names of Darren and his parents had a value of $140,000. There were increases in livestock purchases and some modest purchases of equipment. Darren purchased a 1997 Chevy half-ton. With these exceptions, any other after-acquired property was insignificant. The source of the $3,000 down payment on the mobile home and the $10,000 down payment on the farmland purchase was not identified.

 

[6]                  Accordingly to Michelle, tensions developed between herself and Darren’s parents. Both Darren and his family began hassling her to contribute money to the farm when she finally settled her personal injury claim for $73,500, a lump sum award she received in the spring of 1998. She said Darren’s complaint was that she was not making adequate contribution. However, she points to the fact that over the course of the marriage she had received roughly $45,000 in insurance benefits by way of weekly indemnities, medical expenses and reimbursement for the loss of her vehicle. Of that money at least $33,000 was in the form of income replacement and there was no suggestion at trial that this money was used for any other purpose besides living expenses.

 

[7]                  Although she was contemplating separation in the spring of 1998, she agreed to lend Darren $30,000 from her personal injury settlement to meet farm expenses. She says it was on the understanding he would repay her when he sold his lentils. She says after some additional pressure she gave him another $5,000 cheque to make a truck payment. She also deposited $13,000 in the joint account but gave $6,000 of this to her mother while the rest was used for household and living expenses. At the time of separation in November of 1998 she had $15,000 remaining of the original award. Darren claims the advances to him of $35,000 were a gift and they had agreed to divide her settlement equally between them because they were married and that is just what married people do. Michelle says that when Darren sold his lentils in January, 1999, several months after separation, he refused to pay her back.

 


[8]                  On separation, Michelle took Kaden and moved to Maple Creek, Saskatchewan to be closer to her family. She kept a truck belonging to Darren before marriage and refused to return it until she received some disputed items of personal property that she insisted were hers. She also kept her own vehicle although this has apparently been transferred to her former counsel to satisfy unpaid legal accounts. There are indications she has some limited use of the vehicle under that arrangement. Nonetheless, Michelle argued that her limited access to a vehicle and the birth of a second child from her current relationship are the reasons she has not shared in the transportation of Kaden for access purposes, despite that being a specific recommendation in a custody and access assessment rendered in 2000.

 

[9]                  Currently the parties have joint custody of Kaden pursuant to an interim order granted a month after separation. Michelle now seeks sole custody. Darren is agreeable to joint custody with primary residence to Michelle subject to a satisfactory regime of access. In the months following the interim order of December, 1998, the parties had significant disagreements over access and Darren felt unreasonable restrictions were being placed on him. In November, 1999 he sought specified and enhanced access and the Court granted him a period of eight days in every three week period, a schedule that prevailed for two years until Kaden started kindergarten. School enrollment necessitated a further variation and the father’s access was reduced to six days every four weeks. That schedule has been maintained up to the date of trial. Michelle has generally opposed any significant increase in the father’s time with Kaden.

 

[10]                 I turn now to the specific areas in dispute.

 

Michelle’s personal injury settlement

 

[11]                 The settlement of $73,500 consisted of damages for pain and suffering, past and future wage loss and, possibly, loss of housekeeping capacity but the apportionment as between the various heads of damage was not known by Michelle. She claims it was mainly to replace income lost in the future. Michelle received the settlement in mid-April, 1998. She says $30,000 was lent to Darren in order to pay farm debts and he agreed to pay it back as soon as he sold the lentils. Michelle says they shook hands on it and it was the only time the money was discussed. A separate $5,000 cheque went towards Darren’s truck payment although Michelle is less explicit about the repayment of this amount. She also deposited $13,000 into the joint account of which $6,000 went to her mother and the balance went to general living expenses.

 

[12]                 Darren does not agree the money was loaned to him. He says it was agreed both before and after receipt of the settlement proceeds that the money would be divided equally. In his view, they were married therefore they shared, just as he shared such things as his CROW payments and one life insurance policy he cashed out during the marriage.

 


[13]                 The parties acknowledge and agree that the terms of the ante-nuptial agreement govern the property division. The material provisions of the agreement are as follows:

 

2.      PROPERTY:

(1)   The parties hereto agree that it is their intention to keep their respective estates separate and apart and that each party shall retain, have and enjoy independently of any claim, right or demand of the other party, all property of every kind, nature and description, and wherever situate, which is now owned or held or is in the future acquired by either party, or stands or may appear in the name of either party hereafter, including but not limited to any increases in value of such property, except as expressly set forth herein.

...

(3)   Without limiting the generality of the foregoing, the parties specifically agree that:

(a)   All gifts, inheritances, prizes, lotteries, scholarships, bonuses, findings and income shall be retained by the party so receiving or acquiring same as his or her sole and separate property, free from any claims from the other, whether received or acquired before or after the contemplated date of marriage;

(b)   All wedding gifts or other gifts which are specifically designated as gifts to both parties will, by virtue of this clause and this contract, be the sole and exclusive property of the party who is the closest related to the donor or any one of the donors by heredity or marriage, and if the donor is not related to either party as stated, then the gifts become the sole property of the party who had the first acquaintance with the donor or either of the donors;

(c)   Any loans of monies between the parties will be unenforceable between the parties unless evidenced in writing by way of a Promissory Note or a Loan Agreement;


(4)   The parties shall share in their household and living expenses including, without limiting the generality of the foregoing, food, household goods, furniture, appliances, dishes, linens and holiday expense. The parties shall each contribute their share of the household and living expenses commensurate with their income into a joint bank account monthly to be used by either of them for the purposes set out in this clause. In the event of a dissolution of the marriage, the proceeds of the account and any property acquired with the proceeds of that account shall be divided in proportion to the parties’ respective contributions. This clause shall not be deemed to prohibit either party from maintaining a bank account or accounts in which to deposit his or her income or funds from any other source.

(5)   If both parties make capital contributions towards the purchase of or improvements to any farm residence, and if one party is unable or unwilling to contribute the same amount as the other party, then the party contributing the excess amount shall be reimbursed for the excess amount on the sale or refinancing of the farm residence; in the event of separation and/or dissolution of the contemplated marriage, the said farm residence shall be sold for a price representative of the fair market value of the said farm residence with the net proceeds therefrom, after deducting financial encumbrances, real estate commissions and legal fees for the sale, being divided in accordance with the parties’ respective proportionate share in the capital contributions to the farm residence; PROVIDED HOWEVER, that in the event one party elects to retain the said farm residence, that party shall pay to the other an amount equal to the other party’s capital contributions to the farm residence.

(6)   If both parties make capital contributions towards the purchase of or improvements to any property, and if one party is unable or unwilling to contribute the same amount as the other party, then the party contributing the excess amount shall be reimbursed for the excess amount on the sale or refinancing of the property; in the event of separation and/or dissolution of the contemplated marriage, the said property shall be sold for a price representative of the fair market value of the said property with the net proceeds therefrom, after deducting financial encumbrances, real estate commissions and legal fees for the sale, being divided in accordance with the parties’ respective proportionate share in the capital contributions to the property; PROVIDED HOWEVER, that in the event one party elects to retain the said property, that party shall pay to the other an amount equal to the fair market value of that party’s proportionate share of the property after deducting that party’s proportionate share of financial encumbrances and legal fees for the sale or transfer. The other party’s proportionate share shall be determined by the parties’ respective capital contributions to the property and the fair market value of the said proportionate share shall be determined by an appraiser appointed by the party electing to retain the property and if the other party is dissatisfied with the appraisal so obtained, then that party shall be entitled to obtain his or her own appraisal and the fair market value shall be the average of the two appraisals so obtained.


(7)   HRYCUIK owns property, both real and personal, which has a net value of $315,017.62, as itemized in Schedule “A”. In the event of Marital breakdown VILLENEUVE shall be entitled to receive from HRYCUIK a one time sum of ten thousand ($10,000.00) dollars. In addition, VILLENEUVE shall be entitled to a two (2%) percent interest in the increase in value of HRYCUIK’s net worth for each year of marriage that she cohabits with him to a maximum of fifty (50%) per cent, but VILLENEUVE shall in no circumstances gain any interest in the $315,017.62 net worth which HRYCUIK brings into the contemplated marriage. Notwithstanding all of the foregoing, VILLENEUVE shall not be entitled to receive a sum having a value greater than fifty (50%) percent of the  said increase in HRYCUIK’s net worth.

(8)   Nothing in this Agreement shall prevent either party from making gifts or testamentary dispositions to the other party, but the delivery of property of a value over $1,000 from one party to the other will be deemed not to be a gift unless evidenced in writing and signed by the party making the gift;

...

(11)   If pursuant to the terms of this Agreement a lump sum shall become payable by one party to the other party, then the party with the obligation to pay shall make equal annual instalments without interest and the full amount shall be paid within a period of ten (10) years, unless otherwise agreed.

 

[14]                 There is no evidence in writing that the settlement monies handed to Darren were a loan. There is no evidence in writing that the monies were a gift. The provisions of the agreement requiring documentary proof of loans and gifts do not assist either party. The issue must be resolved on credibility to be determined in the context of all of the evidence.

 

[15]                 According to Michelle, Darren has suggested that one reason she was prompted to share the settlement money was because she had made little in the way of contribution to household expenses due to her disability. I note that over roughly four years of marriage there is evidence of contribution by Michelle from insurance benefits designated as income replacement to the tune of roughly $33,000. Over the same four year period Darren’s contributions consisted of total net income of approximately $34,000 as reported in his income tax returns for 1995 to 1998, inclusive. Accordingly, the parties’ contributions from income were roughly equal.

 


[16]                 In any event, the ante-nuptial contract only required the parties to contribute to household and living expenses commensurate with their income. The agreement was prepared on Darren’s instructions. He knew of Michelle’s injuries, since the accident pre-dated the agreement. He entered the marriage with full knowledge her income earning capacity was impaired and would have no grounds to later assert that Michelle was making inadequate contributions from income.

 

[17]                 Darren also said that they shared her settlement monies because they were married and that is just what married people do. Considering that he was the one who wanted a separate property regime in order to protect the farm, I find nothing persuasive in this explanation. He gave a couple of examples of his own sharing of what would otherwise be separate property, one being the life insurance policy. I note from his income tax returns that the Canada Life policy was not surrendered until 1999 which was the year following separation and in any event amounted to only $5,512.

 

[18]                 One would expect that if Michelle felt impelled to share property she acquired after marriage because that is what married people do, the same considerations would apply to Darren. Yet when he acquired additional farmlands during marriage, I see that he was not similarly moved by the same generous impulses. The lands were acquired in the joint names of Darren and his parents, with right of survivorship. I might have been persuaded that Michelle chose to share her settlement, notwithstanding the terms of the ante-nuptial agreement, had I seen some similar reciprocation from Darren. I am drawn to the conclusion that Michelle’s position tends to be more credible.

 

[19]                 If, as Darren suggested, he was simply getting one-half of Michelle’s settlement, one wonders why he received two separate cheques rather than one lump sum payment. The fact there were two separate and distinct payments tends to support, once again, Michelle’s version of events rather than Darren’s.

 

[20]                 Although Michelle claims reimbursement of all monies paid from her settlement, she did make certain distinctions in her treatment of the money. The sum of $13,000 was paid into a joint account used, as the ante-nuptial agreement specifies, for household and living expenses. Of that money, $6,000 went to her mother and the balance was expended for day-to-day living costs. There is nothing to suggest it was a loan rather than a voluntary contribution. Accordingly, that aspect of the claim is dismissed.

 

[21]                 With respect to the $35,000, Michelle identified $30,000 as a loan to be repaid when the lentils were sold. She was less explicit with respect to the $5,000 advance which went towards a truck payment. The $5,000 advance is identifiable as a capital contribution towards the truck and should be dealt with by reference to the relevant provisions of the agreement. As to the $30,000 advanced, I accept Michelle’s version of events as more credible and that the money was advanced with the expectation of repayment.

 


[22]                 Michelle claimed interest on any monies found to be owing. The only ground available for awarding interest is by way of damages. The general rule is that the courts may allow interest by way of damages where payment of a just debt has been improperly withheld and it is fair and equitable that the debtor should pay. (See: Prince Albert Pulp Company Ltd. et al. v. Foundation Company of Canada Limited, reflex, [1976] 4 W.W.R. 586 (S.C.C.)). At the same time, it is a generally-accepted principle that interest should not be awarded for damages where there is a genuine dispute as to liability or where the amount actually owing is unascertainable without a trial and the defendant has an arguable case to advance. Here, the determination depended on findings of credibility. The absence of clear documentation led to the present litigation and both parties contributed to the difficulties by failing to obtain a simple memorandum documenting the nature of the transaction as a loan or a gift in support of their respective contentions. Accordingly, interest as damages will not be allowed.

 

The mobile home

 

[23]                 Michelle claims a one-half interest in the mobile home. She values the one-half interest as $16,000. This was poorly explained and is apparently an estimation provided to her by an unidentified real estate agent. Darren’s evidence is not significantly better but he tendered a letter from a company known as McDiarmid Homes valuing the mobile home at $35,000 to $38,000 in 1998. Darren testified there was $45,500 owing on the mobile home at date of separation. On the evidence before me, unsatisfactory as it may be, there does not appear to be any equity in the mobile home.

 

The 1989 Lincoln Continental

 


[24]                 Prior to marriage Michelle owned a 1989 Lincoln Continental. Her equity in this vehicle is shown as $5,000 in the ante-nuptial agreement. Three years later this vehicle was traded in on a 1997 Chevy half-ton purchased by Darren. He received a net trade‑in allowance of $1,100. The date of the transaction was December 15, 1997. Michelle says the trade‑in value should have been $7,000. This is difficult to reconcile with the value ascribed to the vehicle three years earlier in the ante-nuptial agreement. Still, it is apparent that Michelle made some capital contributions towards the purchase of the 1997 Chevy half-ton. This was the vehicle that Michelle advanced $5,000 to Darren for, so that he could make a truck payment. Clause 2(6) of the ante-nuptial agreement sets out the process for determining the value of each party’s capital contributions. The agreement provides that it is incumbent upon Darren, the party retaining the property, to appoint an appraiser to determine the fair market value of the other party’s proportionate share. That has not been done. Presumably if any payments on this vehicle came from the joint account, then the parties’ proportionate shares must be calculated by reference to their contributions to the joint account as well as the foregoing contributions by Michelle. As I indicated earlier, in very rough fashion, the parties’ incomes were relatively equivalent over the four year period of marriage. Darren is therefore ordered to appoint an appraiser to make the necessary determination. The ante-nuptial agreement provides for Michelle to obtain her own appraisal if she is dissatisfied with Darren’s, in which case the average of the two appraisals will be used.

 

Livestock

 

[25]                 Prior to marriage Michelle owned one red Angus cross calf (heifer) valued at $700. Michelle says it was a bred heifer given to her by Darren prior to the execution of the ante-nuptial agreement. She said he agreed that she could keep one of the animal’s offspring in each year in order to expand her herd. By her calculations, her own herd would be worth roughly $13,000 today while the other cattle acquired during marriage would be worth approximately $12,000. Neither of these calculations were supported by evidence. Under cross-examination, she acknowledged that the red Angus cross calf was not actually bred until the following year. She acknowledged that there were costs associated with maintaining the cattle but says she was not to be responsible for any of these.

 

[26]                 Darren says there is an obvious inequity in such a claim since it completely disregards the costs to carry, maintain and market the animals. He says he disposed of half the herd in 1998 and as of today has seven head left worth $8,000. This is generally substantiated by his income tax returns showing a significant disposition of cattle in 1998, 1999 and 2000 and declining expenditures on livestock inventory and cattle related expenses. Without production records it is difficult to say more. Under the ante-nuptial agreement, any claim Michelle possessed under this heading should properly have been analysed by reference to clause 2(7) which entitled her to a two percent interest in the increase in value of Darren’s net worth for each year of marriage. Darren claimed his net worth had decreased. I do not have the necessary evidence to determine otherwise. This claim is therefore rejected.

 

Miscellaneous property

 

[27]                 Michelle claims certain wedding gifts and other items of personal property left behind because they would not fit in her vehicle when she was moving.

 


[28]                 Darren produced a handwritten memo of December 29, 1998 signed by both parties and witnessed by a commissioner for oaths setting out a list of items which were the subject of disagreement. I consider that memo to be the more reliable record of the items in disagreement, but the evidence does not otherwise assist me in resolving who should have the disputed items or what they are worth. The memorandum states “Michelle claimed and removed most or all of the pre-wedding shower gifts and wedding gifts with her” and as she signed and acknowledged that memorandum, I am not prepared to make any further order regarding the few items in issue, on the assumption that Darren’s friends and family also made some significant gifts which he would be entitled to retain by virtue of clause 2(3)(a) and (b) of the ante-nuptial agreement.

 

The 1989 Ford half-ton truck

 

[29]                 Michelle wrongfully withheld the above vehicle for four years. The vehicle is Darren’s property and is identified as such in the schedule to the ante-nuptial agreement where it was valued at $12,000 in 1994. Michelle’s thinking was to hold the vehicle for ransom until Darren returned the miscellaneous personal property she claimed as hers. There is some marginal evidence the truck is currently worth $6,700. There is no evidence regarding its value on separation. Darren speculates it had a value of approximately $8,000 and suggests that value be offset against any indebtedness he has to Michelle pursuant to the ante-nuptial agreement.

 

[30]                 In the absence of any other evidence as to the value or the current state of the vehicle, a set-off represents the most practical solution. The sum of $8,000 owing by Michelle will be set off against the $30,000 owing by Darren leaving $22,000 owing to Michelle with respect to the monies loaned from the personal injury settlement.

 

Kaden’s savings account

 

[31]                 At the time of separation there was $2,800 in Kaden’s bank account, Michelle had control of the money and used it to live on but she had limited funds on separation. She also removed $700 from the joint account. Her income in 1999 was $6,600 and she claimed no spousal support despite the preservation of that right in clause 4(3) of the ante-nuptial agreement. With limited employment income because of her ongoing disability she resorted to the aforementioned funds and exhausted the balance of her personal injury settlement in the interval between separation and trial. In the circumstances, I am not persuaded that the $3,500 she removed should be accounted for now.

 


Custody and access

 

[32]                 Joint custody was the recommendation of the assessor following a detailed assessment conducted two years after separation. She noted joint custody is generally successful in families who have a cooperative parenting arrangement which was not the case in this instance. However, it was her concern that if Michelle was awarded sole custody she would not include Darren in decision making. Conversely, she felt that if Darren must be consulted on all decisions, he might refuse agreement on issues as a means to exert his control. She went on to say that, considering Darren’s level of commitment to the child, joint custody was appropriate. She therefore recommended joint custody upon the submission of a parenting plan addressing parental input, decision making, responsibilities, expectations and conflict resolution. The parenting plan was to be determined through mediation. The evidence before me did not point to any substantial areas of conflict regarding Kaden’s health issues, education, religious upbringing or other areas of child rearing that are fertile grounds for disagreement. There have been difficulties in communication but I am encouraged by the fact that Michelle undertook to work on those problems in her closing statement. I see no reason to alter the joint custody arrangement that has prevailed since separation.

 

[33]                 With respect to access, the distance between the parents’ residences has placed an undue burden on the young child whose time with his father is bracketed by a five and one-half hour road trip on either end. It has required the father to spend 22 hours in a vehicle for each access visit. The father has borne all the costs of exercising access. The transportation issue is a significant point of contention. In the father’s words, he is seen as the villain because the child unavoidably associates time with his father with the long and tiresome confinement in a vehicle. The assessor had recommended that the parents share transportation for access purposes. She felt it was of strategic importance as by doing so they could offer reassurance to their son that they both were prepared to make sacrifices on his behalf. Because a child requires both verbal and physical reassurance, the assessor was of the view the mother’s involvement in transportation would offer concrete proof she supported the father’s access. The logic of the suggestion is unassailable. The courts have always considered a parent’s willingness to facilitate access when deciding custody issues.

 

[34]                 Michelle says she was unable to share the transportation of Kaden due to financial restraints, the intervening birth of a second child – now 16 months old – and the lack of a vehicle. As she explains it, her current partner works 30 days on and six days off and she would be forced to take the infant with her when transporting Kaden or make other child care arrangements that she cannot afford.

 


[35]                 The problems are not insurmountable. Michelle will have access to a vehicle as a result of the property division. She is presumably able to seek some family support as that was the very reason she moved to Maple Creek. Requiring the mother to be involved in transportation would provide her some insight and appreciation as to the father’s experiences, as well as Kaden’s during the last four years. Accommodations could be made such as exchanging Kaden at a half-way point each trip which would lessen the burden of travel for the parents, if not for the child. For the time being, Darren proposes each party take one leg of the trip. I am satisfied that sharing transportation in this manner is appropriate in the circumstances. It has been sanctioned in any number of cases including the Saskatchewan Court of Appeal’s decision in Delaire v. Delaire, [2002] S.J. No. 341 (QL) (C.A.).

 

[36]                 The custody and access assessor reviewed the mother’s proposed access schedule and felt it was insufficient having regard to the child’s age. Whatever Darren’s shortcomings as a husband, he is a devoted father and a positive role model for Kaden. Both parents are strong-willed individuals. If they put their minds to it I am sure they can ease the transition for Kaden, now that the other issues have been adjudicated upon. In other words, the perseverance they have shown through four years of litigation can be turned to more useful purposes. Both parents could benefit from enrollment in the parent education programs that are now available but were not mandatory when their proceedings were initiated. The access schedule will be as proposed by Darren.

 

Child support

 

[37]                 Child support was not seriously in dispute. Darren’s 2001 income was $27,459. Under the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] his monthly child support obligation would be $234. He has paid $225 per month since separation despite fluctuations in income owing to the seasonal nature of his work and the declining fortunes of the farm. He has been responsible for all costs associated with access and more recently this has cost him $300 per month in gas alone. While a more detailed analysis of the farm income would have been preferable, it is Darren’s evidence that income and expenses are allocated properly as between himself and his parents. There have been no claims for extraordinary expenses apart from an issue regarding a dental bill incurred by Kaden in October, 2001 in the amount of $782. Darren has indicated he would be willing to share responsibility for that bill and as Michelle did not file income tax returns, that will be the resulting order. The claim for spousal support was abandoned.

 

[38]                 In summary, I make the following orders:

 


1.         It is ordered that Ava Michelle Villeneuve and Darren James Eli Hryciuk who were married October 15, 1994 are divorced and unless appealed this judgment takes effect and the marriage is dissolved on the 31st day after the date of this judgment.

 

2.         Pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and with respect to custody and access, this Court further orders:

 

(a)      The petitioner and the respondent shall share joint custody of the child of the marriage, Kaden James Darren Hryciuk, born August 25, 1996;

 

(b)      The primary residence of Kaden Hryciuk shall be with the petitioner and the respondent shall have liberal and general access with the child;

 

(c)      For greater certainty, but not so as to limit the respondent’s access with the child, it shall be specified as follows, with any additional access to be agreed by the parties:

 

(i)        The respondent shall have access with Kaden on at least four consecutive days each month extending over a weekend or long weekend, where possible, so as to minimize Kaden’s absence from school;

 

(ii)      For the months of February and March or April when a school break occurs for a period of one week, the respondent shall have access with Kaden for seven consecutive days;

 

(iii)     During the months of July and August the respondent shall have access with Kaden for six weeks, with at least three weeks being consecutive during each of the two months;

 

(iv)      The respondent shall be entitled to reasonable telephone access with Kaden during the time Kaden is in the petitioner’s care; and

 


(v)      The respondent and the petitioner shall share responsibility for transporting Kaden to and from his access times with the respondent equally, with one party being responsible to take Kaden from Maple Creek to Wakaw at the beginning of each access period, and the other party being responsible to return Kaden from Wakaw to Maple Creek.

 

3.         Regarding child maintenance, it is further ordered that the respondent shall pay the sum of $234 each month as child maintenance for Kaden payable on the first day of each and every month hereafter, until further order. The respondent’s income is determined to be $27,459 based on his 2001 income. The respondent will also reimburse the petitioner for one-half of the dental bill of October, 2001 in the amount of $782.

 

4.         Pursuant to The Family Property Act, S.S. 1997, c. F-6.3, it is further ordered:

 

(a)      The petitioner shall transfer her interest in the mobile home to the respondent’s name alone and the respondent shall assume all indebtedness associated with the mobile home;

 

(b)      The petitioner shall retain possession of the 1989 Ford half-ton truck and the respondent shall deliver a transfer of registration to the petitioner’s name forthwith;

 

(c)      The respondent shall have the 1997 Chevy half-ton appraised as required by clause 2(6) of the ante-nuptial agreement. If there remains dispute as to the calculation of the parties’ proportionate shares for distributive purposes after the appraisal process is exhausted, the matter may be returned to me for resolution;

 

(d)      Each party shall retain the personal property presently in his or her own possession, free and clear of any future claim by the other, without any further division or redistribution other than as provided in clause (c) hereof;

 

(e)      The petitioner will have judgment against the respondent in the amount of $22,000 representing the $30,000 loan less the $8,000 set-off for the 1989 Ford half-ton truck; and

 


(f)        The petitioner shall have judgment against the respondent for the sum of $10,000 pursuant to the ante-nuptial agreement, provided that the said sum is payable without interest in ten equal annual instalments of $1,000 each commencing on December 31, 2002 and payable on the 31st day of December in each and every year thereafter until paid.

 

[39]                 In view of the mixed success, there will be no order as to costs.

 

[40]                 Judgment accordingly.

 

 

                                                                                                     ____________________ J.


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