Bitar v. Bitar, 2011 ABQB 25

Court of Queen ’ s Bench of Alberta Citation: Bitar v. Bitar, 2011 ABQB 25 Date: 20110118 Docket: 4803 154365 Registry: Edmonton Between: Carina Lynn Bitar Plaintiff - and - Robin Lucas Bitar Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] This application presently before the Court deals with a number of parenting issues; as well as the issue of the amount of child support and spousal support that is payable in this matter. [ 2 ] The husband’s position with respect to child support is that while the wife is entitled to receive monthly child support payments for the 3½ year old child of the marriage, he has the child in his care almost half of the time so he should not be required to pay the full amount of

Section 3 support as outlined in the Guidelines . The wife responds that

Section 9 of the Federal Child Support Guidelines do not apply in this matter as the husband’s time with the child only amounts to approximately 30%.

[ 3 ] As for spousal support, the husband submits that he should not have to pay his spouse support in the circumstances since he is already solely responsible for paying for all of the expenses and mortgage related to the former matrimonial home that is presently listed for sale, but for which there is a limited real estate market demand for. The husband estimates that he pays approximately $2,000 each month towards the mortgage and expenses of the former matrimonial home that he currently lives in.

The wife’s position with respect to spousal support is that there is a large disparity of income in favour of the husband and that she is entitled to spousal support in the sum of at least $1,500 a month, which would cost the husband approximately after taxes $1,000 a month – which spousal support she needs in order to make ends meet. [ 4 ] With respect to parenting, the wife believes that the child’s primary residence should remain with her as she is at home full- time due a medical disability and because the child is pre-school age.

The husband proposes that the parties should have shared and joint custody of the child, and that the child should be in his care from 4:00 p.m. to 8:00 p.m. Monday to Thursday, except on the weeks in which he is required to start his work day later and work until 5:00 p.m. On those days the child would be in his care from 5:20 p.m. until 8:30 p.m., except on the Tuesday of that week when the child should stay overnight with him and return to the wife’s care at 8:00 a.m. Wednesday. The husband also proposes that the child be with him every weekend from 4:00 p.m.

Friday until Sunday at 8:00 p.m. [ 5 ] By way of background these parties were married in June 2004 and separated in September 2010, although they began living separate and apart earlier within the matrimonial home in November 2009. The husband is 36 years of age, and is a Laboratory Technologist earning an income in 2009 of approximately $78,000. He is expected to earn approximately $85,000 in 2010. The wife is 32 years of age, and is trained as a Registered Nurse.

She is currently however in receipt of long term disability benefits since 2008 as a result of being diagnosed with ulcerative colitis, which disabled her from working as a Registered Nurse. Her 2009 income was approximately $26,735, and her 2010 income was approximately $30,000. [ 6 ] The wife moved out of the matrimonial home in mid September, 2010, and with financial assistance from her parents, the wife is presently living in a residence which costs her approximately $1,065 a month.

The wife does not contribute to the expenses associated with the former matrimonial home which costs the husband who continues to reside there about $2,000 a month. The former matrimonial home is estimated to be worth $420,000, and has a $230,000 mortgage on it. The parties’ equity in the former matrimonial home is approximately $190,000, and it is apparently is the only major asset to be divided between them. [ 7 ] With respect to parenting arrangements, these parties appear to have not gotten along since the wife became ill after their child was born.

Recently there has been a number of incidents between these parties, at least one of which in September 2010 led to police being called. Both parties have made a number of allegations of a serious nature against the other. Conclusion [ 8 ] With respect to parenting, although these parties do not appear to get along very well they are both very interested in the upbringing of their child who is currently 3½ years of age. Both are very involved with the child’s parenting and appear to have the child’s best interests in mind.

As such it is desirable to maximize the father’s contact with the child, even though I have concluded that the child will remain primarily with the wife. The wife is presently able to care for the child on a full-time basis as a result of her disability, and the child being of pre-school age should remain with the caregiver that the child is most accustomed to. [ 9 ] The husband would like to see the child each evening, and I adopt his proposed

schedule of seeing the child from 4:00 p.m. to 8:00 p.m. Monday through Thursday, with the exception of the weeks that he is required to start his work day later and work until 5:00 p.m., when the child would be in his care from 5:20 p.m. until 8:30 p.m. [ 10 ] The husband’s proposal however to have the child with him on Tuesdays of those weeks when he is required to start work later on an overnight basis, and his proposal to have the child every weekend from 4:00 p.m. Friday until Sunday at 8:00 p.m. are both objected to by the wife for what I conclude to be good reasons. The proposed overnight stays and the husband’s care of the child every weekend will be scaled down at this point to (

a) no overnight stays, and (

b) access every other weekend from Friday after work until Sunday at 7:00 p.m. I have already directed that the husband can also have access to the child weekday evenings on Monday through Thursday from after work until 8:00 p.m., except on the day he is required to begin work later and work until 5:00 p.m. when he will have the child from 5:20 p.m. until 8:30 p.m.

[ 11 ] Given the previous incidents between these parties’ one in which police became involved, it would probably be best that any exchanges of the child be at curb side to minimize the contact between these parties at the time of the pick up and drop off. [ 12 ] There is an issue with respect to an extended vacation that the husband proposes to take the child to from February 16 to February 28, 2011, which is objected to by the wife on the basis that it is too lengthy a period of time.

Given the nature of the husband’s vacation plan to take the child to Disneyland and then on a cruise following that excursion, I conclude that a 12 day period from February 16 to February 28, 2011 is appropriate. [ 13 ] The parenting plan will have to be reviewed and adjusted if and when the wife returns to work, or in the Summer of 2012 when the child will be 5 years of age and about to begin kindergarten, whichever event occurs earlier. [ 14 ] As for child support, the arithmetic calculations as to the percentage of time in which husband has physical custody of the child in relationship to the 40% threshold cannot be allowed to take precedence over what is in essence a non-shared custody situation, particularly in a case such as this one where the wife is able to take care of the pre-school child on a full-time basis due to her medical disability from work.

It is even debatable based on the evidence before me whether or not the husband has physical custody of the child for the required period of time pursuant to

Section 9 of the Guidelines , but even if he does, I do not believe that this is a situation where the husband should receive the benefit of the approximate $250 offset provided by a shared custody arrangement. As such the husband will pay the full

Section 3 amount as outlined in the Federal Child Support Guidelines , and

Section 9 of those Guidelines does not apply. Child support will be retroactive from the date of separation of September 2010. [ 15 ] With respect to spousal support, the husband’s situation is somewhat in flux in that he lives in the former matrimonial home but hopefully that former matrimonial home will be sold shortly, or certainly in due course. In the mean time he pays over $2,000 in maintaining that matrimonial home, which is the only real major asset that these parties have to divide.

As such while the wife is entitled to maintain a standard of living she was accustomed to prior to the separation, some accommodation has to be made for the husband as well, particularly given the pending sale of their former matrimonial home. The reality is neither party will be able to maintain the same standard of living they were accustomed to prior to the separation given the present finances and employment situation of the parties.

The wife however needs some further financial support currently in addition to basic child support and disability payments. [ 16 ] Therefore I award $1,000 of non-retroactive spousal support at this time effective January 1 st , 2011 for 12 months on an interim basis. The issue can be revisited after the husband is required to vacate the matrimonial home, and the proceeds from that sale of the former matrimonial home are realized. [ 17 ] Given the mixed success in this matter, no costs will be awarded to either party. Heard on the 13 th day of January, 2011.

Dated at the City of Edmonton, Alberta this 18 th day of January, 2011. Donald Lee J.C.Q.B.A.

Appearances: I. Thomas Colquhoun for the Plaintiff Shirley A. McNeilly, Q.C. Emery Jamieson LLP for the Defendant