Too often in family law we see parties who act unreasonably and irrationally. To continue the fight with their ex-spouse, parties often needlessly spend money while doing more harm than good to their families and children. It is not hard to imagine why – many separation cases involve ex-spouses who are emotionally charged and have much deep personal feelings toward each other.
In the case of Skye v. Silver, unlike most other family law trials, the parties were commended by the court for conducting themselves in a respectful and courteous manner throughout the course of the trial and in the presentation of their evidence. The court noted that “too often in family trials separated parents choose to say the worst things they can about the other, in the hopes that it will assist them in getting the order they want from the court.”
All issues involved in this case relates to the parties’ one child, who was 11 years old at the time of the trial. The parties have been co-parenting the child without a formal court order since their separation in 2015.
Issues and Analysis
The mother asked for sole custody of the child given her position that she has been the primary caregiver and made all decisions regarding the child’s health and education. The father asked for joint custody given his position that he should be able to have a say in major decisions for the child. Notably, the court highlighted the father’s concession that the mother is a good mother and has never made a decision for the child that was not in his best interests. The court further noted that the parties have entered into an informal agreement shortly after separation, which stipulated that the mother shall have sole custody of the child. The father conceded that he did in fact enter into this agreement and that the mother had been making decisions for the child since separation. In light of this concession, the father stated that his real concern was that he was not being consulted before major medical decisions were made for the child. The court opined that it could not find evidence to warrant setting aside the informal agreement and disrupting the status quo; as such, the court found that the mother should continue to have sole custody of the child. However, the court stated that the mother shall notify the father of any major developments in the child’s life.
A difficult issue respecting to Child Support was determining the father’s income as he was a self-employed individual from 2016-2019 and his Income Tax Returns and Notice of Assessments for those years did not fairly reflect his income. The father conceded that the total income shown on same was far less than the amount of income on which he should be paying child support. Also, the mother testified that the father could not work the entire year as his job was seasonal to shine light on the actual circumstances of the father’s employment income. The Court ultimately imputed a modest income of $25,000 a year for the father given his ability to work during the pandemic and sufficient evidence provided regarding his source of income through the years of 2016-2019.
This case reminds us that the parties’ civil and respectful conduct towards each other can help move their matter more productively and efficiently. The court stated that “both [mother] and [father] were fair in their assessment of the other's conduct and did not exaggerate or over-emphasize the faults of the other in order to bolster their position” and that “[the father] was open and forthright about his faults and shortcomings”… and that [the mother] was able to demonstrate flexibility and understanding in a child-focused manner.” It is interesting to note that at the beginning of the trial, access was also an issue to be tried. However, during the course of the trial, both parties have made concessions resulting in a general agreement as to what access should be ordered. Should the parties have been disrespectful and difficult towards each other, the issue of access may not have been resolved and may have forced the parties to continue litigating.