Fisher v. Fisher, 2011 ABQB 30

Court of Queen ’ s Bench of Alberta Citation: Fisher v. Fisher, 2011 ABQB 30 Date: 20110120 Docket: 4803 138642 Registry: Edmonton Between: Shelley Ann Fisher (Also Known As Shelley Ann McKendrick) Respondent/Applicant - and - Robin Ernest Fisher Applicant/Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] These parties were married in December 1994, and there is one child of the marriage who is currently almost 12 years of age.

The father seeks to revisit the parenting of the child of the marriage based on a material change in circumstances since the granting of the divorce in May 2007, which allowed the father access to the child every second weekend, provided the child’s cousin was not present. The father now seeks to increase the his involvement in the child’s life by proposing to have parenting time set every other Christmas break for one week, every other school Spring break, and for one month in the Summer plus other access as the parties can agree upon when the father visits Edmonton.

[ 2 ] One of the material changes that the father submits is that he moved from Edmonton, where he was living at the time of the marriage, to the Grande Prairie area which is approximately 500 kilometers north of Edmonton. Furthermore the child is almost four years older then she was at the time of the divorce, and should be able to appreciate and enjoy a longer or extended stay with the father.

The father’s move was precipitated by his extended family connections in the Grande Prairie area, and the difficulty he had paying for accommodation in Edmonton plus maintaining his child support obligations, which he says has been paid in full. [ 3 ] The mother opposes the father’s application for more parenting time submitting that he has not exercised the parenting time that he was granted in the divorce. The mother wants the status quo to remain as it relates to the child, although the father is welcome to visit the child in the Edmonton area when he is here.

According to the mother, the child does not want to visit with the father for extended periods in the Grande Prairie area where the father currently lives. [ 4 ] The mother also seeks sole custody, and seeks to reinstate the Order of this Court that she obtained on an ex parte basis in August 2010.

That Order dispensed with the consent of the father for the purpose of the mother obtaining a passport for the child, and directed that the mother was at liberty to travel with the child outside of the country now and any time in the future without the prior consent of the father. [ 5 ] This motion by the mother is opposed by counsel for the father who points out that the mother’s Order was obtained on an ex parte basis without notice, and made allegations that the father was in psych wards off and on.

Furthermore the mother advised the Chambers Judge at that time that the father was extremely difficult to get a hold of, none of which it is submitted is accurate. Conclusion [ 6 ] The mother’s ex parte Order of August 2010 was partially vacated by another Order of this Court granted on October 1, 2010, which reinstated the requirement for the father’s consent when the child travels internationally.

I conclude that the October 1, 2010 Order is a final Order of this Court that the mother has not appealed within the time limits provided by the Alberta Rules of Court , and as such cannot be reinstated now. [ 7 ] Furthermore since these parties have joint custody of the child, they should both have some responsibility for her travel and well being particularly outside of Canada. The application by the mother also should not have been made ex parte in the first place as it appears that the mother has no difficulty contacting the father, and was aware of his mailing address and telephone number.

Furthermore it does not appear that the father would have unreasonably withheld his consent in any event for passport and travel purposes with respect to the child.

The father was hospitalized twice in 2009 for a period of one week each, however this was not apparently of any great importance, contrary to what was alleged by the mother in her ex parte application. [ 8 ] As such the mother’s application to reinstate the August 2010 ex parte Order that she obtained allowing her to dispense with the father’s consent for all travel purposes is dismissed. [ 9 ] With respect to the father’s application to increase his parenting time with the child, even on the father’s Affidavit he has only seen the child on limited occasions since the divorce.

The father has seen the child he estimates in 2008 approximately six times, and for one week in the Summer. In 2009 he saw the child approximately six times, and the child visited him for a further week and a half in the Summer. The visits have been more limited in 2010, partly because of the father’s move to the Grande Prairie area, and partly because he claims that parenting time has been denied to him by the mother.

In any event 2010 was not a year in which the father exercised much parenting time. [ 10 ] Since the father has exercised limited access and parenting time by his own acknowledgement, what he is asking for now is too great a change from the status quo . To go from very little access in 2010, to having parenting time every other Christmas and Spring break, as well as one month each Summer is too big a change, and would not be in the best interests of the child especially since the parties’ residences are 500 km apart.

Ordering weekend visits in Edmonton for the father when he visits the area that also would work for the child and the mother’s

schedule would be ideal, but these parties do not seem to communicate well.

[ 11 ] As such I conclude that there has been a sufficient change in circumstance since the Divorce Judgment to increase the father’s parenting time with the child, particularly since the father will continue to have joint custody of the child notwithstanding the mother’s application for sole custody. The father was granted joint custody as part of the divorce, and there is no reason to vary that now. [ 12 ] I will direct a gradual increase in parenting time with the father starting with the Christmas of 2011 when the father can parent the child from December 24 at noon to December 31 at noon.

The father can also have parenting time with the child every other Spring break beginning in the even numbered year of 2012. The father can also have access for up to two consecutive weeks in the Summer. [ 13 ] As for varying the terms of the access to remove the “no contact” provision with the child’s cousin, no specific allegations have ever been proven as against the cousin as it relates to the child, or otherwise. At the time of the allegation, the cousin was approximately 13 years old, and the child was approximately 8 years of age. No criminal charges were ever laid in the matter.

The cousin does not reside with the father in any event, and it seems to be an unnecessary restriction to keep a “no contact” provision in place almost four years after the divorce for no specific or ongoing reason, which only has the effect of preventing the cousin from meeting the child at family events. As such the “no contact” provision is lifted. [ 14 ] As there has been mixed success here, no costs are awarded for this Special Chambers Application. Heard on the 18 th day of January, 2011. Dated at the City of Edmonton, Alberta this 20 th day of January, 2011. Donald Lee J.C.Q.B.A. Appearances: Christine P.

Murray McGlashan MacKinnon for the Applicant Father Shelley Ann McKendrick - Respondent Mother Appeared on Her Own Behalf