Hrushka v. Hrushka, 2011 ABQB 423

Court of Queen ’ s Bench of Alberta Citation: Hrushka v. Hrushka, 2011 ABQB 423 Date: 20110704 Docket: 4803 152309 Registry: Edmonton Between: Sylvia Maria Hrushka Plaintiff (Applicant) - and - David Allan Hrushka Defendant (Respondent) _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Relying on the fact that the daycare provider for their 4 ½ year old daughter has ceased to provide such care allegedly because of Mr. Hrushka’s interference with daycare operations, Ms. Hrushka asks the court to terminate Mr. Hrushka’s Wednesday and Friday mid-week access to his daughter and for related relief. She also asks the court to impute $50,000.00 in income to Mr.

Hrushka. [ 2 ] The application to terminate mid-week access should not have been brought in morning chambers: the termination of multiple mid-week access to a young child, together with the abrogation of a joint guardian’s right to participate in decision-making concerning such matters as which school his child should attend, is a substantial change to a parenting regime and should have been brought in special chambers. Moreover, Mr. Hrushka’s explanation for what appears to be obstreperous behaviour on his part requires a trial of the proposed parenting variation.

Until that issue can be heard as a special chambers application with testimony, the existing parenting order will remain in place, with minor variations.

[ 3 ] Ms. Hrushka also asks for an order deeming income of $50,000.00 to her husband. Mr. Hrushka . Although an interlocutory, without prejudice, order is made on the basis of Mr. Hrushka’s counter-proposal with respect to income, the application to deem income is adjourned to a special chambers hearing. 1. Background [ 4 ] The parties are the parents, and interim joint custodians, of a 4 ½ year old daughter. By order dated March 26, 2010, this court ordered that Mr.

Hrushka shall have reasonable and generous access to his daughter, which was then specified as including mid- week evening access on Wednesday and Friday and alternate week-end access. Mr. Hrushka, who is a student, was to pick up his daughter from the daughter’s daycare and deliver her to her mother’s residence. [ 5 ] On May 3, 4, 5, and 6, 2011 an acerbic exchange of e-mails took place between Mr. and Ms. Hrushka and the management of the daycare their daughter was attending. The gist of the dispute was that the daycare was upset by Mr.

Hrushka’s recording of interactions between daycare staff and himself and his daughter. Mr. Hrushka’s position, as he attempted to explain it to the daycare, was that Mr. Hrushka had himself been accused by Ms. Hrushka of improper behaviour in letters dated in April, 2010, and on August 6 and 23, 2010, relative to the parties’ daughter and he felt that the had to record the interactions with a view to protecting himself and his relationship with his daughter. Similarly, Mr.

Hrushka states that in March 2010, the daycare itself made certain verbal threats against him as a result of which he feels that he needs to have a record of all exchanges with the daycare. The upshot of the disagreement was that the then daycare provider terminated its contract to care for the parties’ daughter. [ 6 ] Ms. Hrushka, who is employed outside the home, then felt that she had to make urgent decisions concerning daycare services, and, without consulting the father, made arrangements for daycare to be provided outside the neighbourhood where she and the daughter reside. Mr.

Hrushka had said that he hoped that the mother would propose 3 or 4 daycare providers and that he would vote on the one he preferred. One result of the mother’s choice of daycare is that, in September of this year, the daughter will commence school outside her neighbourhood. [ 7 ] In the emails complained of, Mr. Hrushka asserts that, in the past, the mother has complained if Mr. Hrushka dropped off his daughter 15 minutes early; therefore, he has taken to recording exchanges to support what he considers to be an ongoing credibility fight. [ 8 ] One recurring source of irritation between Mr.

Hrushka and the previous daycare staff had to do with his daughter’s eating pattern. The father asserts that their daughter is vegan and has 3 food allergies and that the daycare has complained in the past that the father has not provided sufficient nourishment for his daughter. Mr. Hrushka states that, because of that history, he needed to see what food had been provided to his daughter during the day so that he would be aware of what food he had to provide to her by way of snack and evening meal. [ 9 ] The parties separated in late November, 2009, a substantial litigation file has already been created. 2.

General principles concerning morning family law chambers [ 10 ] Morning family law chambers is for applications that will take less than a total of 20 minutes from all parties. It is not the appropriate venue for contested substantial changes to a parenting arrangement: Q.B. Family Law Practice Note No. 3 3. Application of the morning chambers policy here [ 11 ] Ms. Hrushka’s application in morning chambers asked for three types of relief: she wanted answers to undertakings, to impute income to Mr. Hrushka, and, to vary the parenting regime.

The first of those matters was properly brought in morning chambers and was, indeed, quickly disposed of.

[ 12 ] The other two matters were contested and should not have been brought in morning chambers. Indeed, looking only at the history of the file to date according to the court records, Ms. Hrushka would have been aware that Mr. Hrushka would vigorously contest virtually any claim she made.

a) The change in the access

schedule [ 13 ] A change in the access

schedule which removes mid-week access to a young child is a substantial change to a parenting regime and should not have been brought in morning chambers. [ 14 ] Because the mother who requested the change did not present any expert evidence on what is in a young child’s best interests in relation to ongoing contact with a parent, for the purposes of dealing at this time with the mother’s application, the court is entitled to rely on Parliament’s maximum contact principle and also on its understanding of expert evidence on that topic heard in other cases which is to the effect that, generally, the younger the child the more important it is for the child to have frequent contact with a parent in order to develop a healthy relationship.

A change in the parenting regime that would allow a father to see his 4 ½ year old daughter only every second week-end therefore constitutes a substantial change to a parenting regime which may not be in a child’s best interests.

In order to adequately explore what is in the child’s best interests, a special chambers application should have been booked. [ 15 ] Moreover, here the father has an explanation for what looks, on the surface, to be obstreperous, aggressive, unreasonable behaviour on his part: he states that allegations have, in the past, been made against him by the mother and by the daycare itself which allegations he can only counter effectively by providing evidence in the form of recording his interactions with the daycare.

The mother’s change to a new daycare is unlikely to solve that problem since it is likely that the current daycare will also have been provided with some history by the mother about why the child has been placed there. It will therefore be necessary to have an exploration of the underlying reasons for the father’s behaviour which has included such bizarre aspects as consultations with private investigators. If possible, a healthier parental relationship needs to be established so that the parties’ child is not irretrievably damaged by these positions of the parents.

Also, the parents are joint guardians of the child. Although the father has agreed, for purposes of this application, that the mother is entitled to determine, without his input, which daycare their daughter will attend, there is no resolution of the underlying issue of whether joint guardianship is in the child’s best interests.

Therefore, although the specific issue, mid-week parenting, appears to be relatively simple, the situation here is one which will require testimonial evidence in order to allow a judge the best opportunity possible of determining how this conflict between the parents should be resolved in order to accommodate the child’s best interests. [ 16 ] For the purposes of the application, Mr. Hrushka agreed that he would not attend at the child’s current daycare to pick up his daughter, but that his parents or his sister could act as his agent.

The father’s decision not to exacerbate his daughter’s distress is undoubtedly wise. However, given the unusual level of family involvement from the father’s side, including the fact that the emails referred to above include the signature line “ Garry, Elizabeth and David”, any change from the father’s actual presence to the presence of another member of his family is unlikely to cause any real improvement in the dynamic of access exchanges. Until the special chambers application can be heard, Acton J.’s existing order will remain in place, with the following minor variations to paragraph 2: (

a) every Wednesday from 3:00 p.m. when Mr. Hrushka will pick up his daughter from her daycare until 8:30 p.m. when Mr. Hrushka will return the child to Ms. Hrushka’s residence; (

b) every Friday from 3:00 p.m. when Mr. Hrushka will pick up his daughter from her daycare to 8:30 p.m. when Mr. Hrushka will return the child to Ms. Hrushka’s residence, however, this access shall be extended every second weekend such that Mr. Hrushka shall have access from 3:00 p.m. on Friday to Sunday at 5:00 p.m. when he shall return the child to Ms. Hrushka’s residence; (

c) if Mr. Hrushka is not available to pick up or drop off his daughter, Mr. Hrushka’s mother or father or sister can pick up and drop off the child; (

d) any authorized person who is picking up the child will not enter the daycare other than for the express purpose of picking up the child; the day care staff will have Mr. Hrushka’s daughter waiting at the entrance of the day care at 3:00 p.m. on Mr. Hrushka’s access days; (

e) any authorized person who attends at the daycare to pick up the child will be shown all of Mr. Hrushka’s daughter’s food containers for that day.

b) Deeming income to the father [ 17 ] In response to Ms. Hrushka’s application to deem income of $50,000.00 to the father, Mr. Hrushka “agrees to” a guideline income of $30,000. On an interlocutory, without prejudice, basis, the court therefore imputes income of $30,000.00 to Mr. Hrushka on the basis of which Mr. Hrushka will pay ongoing monthly child support of $245.00 and will pay retroactive support from April 1, 2010. The retroactive support will be paid at the rate of $100.00 per month, commencing July 1, 2011, until the retroactive portion has been paid in full.

Until further order of the court, the retroactive portion will be added to the ongoing amount for a total monthly child support payment of $345.00. [ 18 ] On an interlocutory, without prejudice basis, the father will also pay, from April 1, 2010 onwards, his proportionate share of child care expenses as s. 7 expenses. The mother’s income for 2010 is deemed to be $70,215.00.

The mother will provide to the father a receipt for child care expenses to date and, from July 1, 2011 onwards, will provide receipts for s. 7 expenses by July 1 and January 1 in each year and the father will have until July 30 and January 31 in every year to bring an application to contest s. 7 expenses.

From his proportionate share of child care expenses, payments which have been made to date by the father direct to the daycare or direct to the mother, will be deducted from his overall contribution to s. 7 expenses. [ 19 ] When calculations have been made with respect to the father’s retroactive contribution to s. 7 expenses, starting on July 1, 2011, 1/13 of that total retroactive contribution will be paid monthly by the father until the retroactive portion of the father’s contribution to s. 7 expenses has been paid in full. [ 20 ] In

summary, starting July 1, 2011, the father will pay $245.00 in monthly baseline support, his proportionate share of childcare expenses, $100.00 towards retroactive baseline support and 1/13 of retroactive s. 7 expenses. [ 21 ] Also, until further order of the court, by July 1 of each year while their child remains a child of the marriage for purpose of child support, the parents will exchange the financial information require to calculate support. [ 22 ] A special chambers hearing is still required with respect to child support.

The issue of the father’s income will have to go to a special chambers hearing because of its complexity. With respect to the retroactive portion of the claim, it is not clear on the current material why there should be retroactivity of over one year. Nor is it clear on the material provided on this application whether the father agreed to the Heritage Post Secondary Savings Plan which is claimed as a s. 7 expense. [ 23 ] Moreover, although the father has “agreed” to a guideline income, he has not made full disclosure of his income, including, for example, his student loans.

Nor, indeed, has he provided evidence of full time attendance at a post-secondary educational institution. Also, there is inadequate information about his business income, making it impossible to determine if the gross revenue he appears to have received is in fact, at least in part, payment for stock which must be replenished. 4. Obligation to prepare form of order [ 24 ] Although Ms. Hrushka was successful on her application to answer undertakings, Mr. Hrushka was successful in resisting an immediate change in the parenting regime and an immediate imputation of $50,000.00 in income. Therefore, Mr.

Hrushka has been substantially successful at this hearing, and has the obligation of preparing the resulting form of order. 5. Costs

[ 25 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 16 th day of June, 2011. Dated at the City of Edmonton, Alberta this 30 th day of June, 2011. J.B. Veit J.C.Q.B.A. Appearances: Pierre R. Boileau, Miller Boileau Family Law Group for Ms. Hrushka Daniel J. Mol, Mol Advocates for Mr. Hrushka