TLB v JCL, 2011 ABQB 445

Court of Queen ’ s Bench of Alberta Citation: TLB v JCL, 2011 ABQB 445 Date: 20110711 Docket: 4801 129871 Registry: Calgary Between: TLB Plaintiff/Applicant - and - JCL a.k.a. DL Defendant/Respondent Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R. J. Hall _______________________________________________________ [ 1 ] In this matter the Applicant Ms.

TLB seeks an Order that the parties have shared custody, but that she be given primary care and decision making power with respect to the two children, I, born [...], 2000 and I, born [...], 2002. She seeks that the Respondent Mr. JCL’s access be restricted to every second weekend. She seeks an Order for ongoing child support. She seeks an award of arrears of

section 3 and

section 7 expenses, plus ongoing

section 7 expenses to be split evenly between the parties. [ 2 ] Each of the parties has filed Affidavits in these proceedings and

summary letters of their positions. [ 3 ] Ms. TLB states that, at separation, the children were four and five years old. The parties originally accommodated each

other. They each have their own home. Initially the children were with Ms. TLB while Mr. JCL was working. This proved to be too inconsistent, so they agreed to shared custody with the children living alternative weeks with each parent. [ 4 ] Mahoney, J. granted an Order of March 15, 2007.

That Order provided that the parties would have joint custody of the children, with the children residing with each parent from time to time as best meets the needs of the children; that each party would have reasonable access to the children when the children were in the other party’s care; base child support was reserved; and that Mr. JCL pay Ms. TLB $552.00 per month for child care expenses. [ 5 ] The Mahoney Order was varied by Consent Order issued by McDonald, J. on August 21, 2007.

That Order provided that there would be no exchanges of money for fees associated with the live in caregiver, that each party would pay the live in caregiver directly and each could submit source deductions directly to Revenue Canada. The Applicant and Respondent would not pay each other any child care expenses or

section 7 expenses. At the time Mr. JCL’s income was listed as $61,309 per annum, and Ms. TLB’s income listed as $68,993 per annum. Given that the parties had the two children residing with them on alternating weeks, given the relatively equivalency of the parties’ incomes, the Order seemed appropriate to the parties at the time, and was consented to. [ 6 ] Ms. TLB, however, states that in 2009 Mr. JCL stopped paying his share. He presented a model to Ms. TLB whereby he would pay for all of the expenses for one child and she would pay all of the expenses for the other. Ms.

TLB did not agree, indicating that such a arrangement would not be necessarily equal. She also complains that there was duplication of purchases for the children of such things as clothing and sporting equipment. Ms. TLB has filed an Affidavit dated May 17, 2011 in which she maintains that almost since the end of 2008, she has paid all of the children’s expenses, and claims $4,297.95 as expenses which should have been paid to her by Mr. JCL to equalize payments between them. [ 7 ] Ms. TLB also maintains that, since 2008, Mr. JCL is in a new relationship, and his parenting style has changed.

She maintains that he is abusive of the children, has become dictatorial and unpredictable, has withdrawn financial support and is not responsive to emails. She notes that a mediation/arbitration had been set up but was cancelled by the Respondent three hours before it was set to take place. She maintains that there has been resulting stress, uncertainty and inconsistency. She maintains that Mr. JCL fails to take the children to events, misses activities, birthday parties, parent teacher meetings and refuses to pay for basic expenses for them. She maintains that Mr.

JCL bullies and threatens her until he gets want he wants. She recites a meeting which she says took place on June 7, 2010, where she said Mr. JCL told her he didn’t care anymore and didn’t want to deal with the children, and that he was not going to use any of his money to pay extras for the children, and that he suggested that she pay him $2,000 a month and she could have the children full-time. [ 8 ] Ms. TLB maintains that she has been told by her children that Mr. JCL pinches them, slaps them and yells at them as his form of discipline. [ 9 ] Ms. TLB refers to an occasion when Mr.

JCL refused to pay for child care, with the result that he was leaving the children at home unattended, until she obtained an Order from Bensler J. of July 12, 2010, directing him to have someone care for the children, when he was not present but they were in his care. [ 10 ] Ms. TLB acknowledges that “the kids love their dad”. [ 11 ] The children are now almost ten and eleven years of age. Ms. TLB states that Mr. JCL has enrolled them into a program to learn to care for themselves and Ms.

TLB indicates that she believes that the children are now of an age where they are able to do so, at least for short unsupervised periods of time. [ 12 ] Ms. TLB maintains that Mr. JCL does not take care of the children’s medical needs, and says that she makes all of the medical appointments. [ 13 ] In response, Mr. JCL replies that the children are both happy and loved by each parent; that both parents are very much involved with their children’s lives; that the parents both support and encourage the children’s commitment to their French Canadian heritage, the French language, and their religion. Mr.

JCL maintains that the breakdown is communication between mother and father.

[14] Mr. JCL believes that Ms. TLB spends too much money on the children without getting any approval from him, and thereforesays that he is not prepared to pay for those expenses. He recognizes that he has duplicated certain of the children’s clothing and sportinggoods so that they have those items at each home, rather than being required to carry those items to school on a transfer day which wouldbe awkward and cumbersome for them. He maintains that he has paid for this duplication in his own home. [15] Mr.

JCL maintains that he remains involved with the children’s schooling and in fact he, as a policeman, gives presentationsat their school. He volunteers at their school. He and his current partner and the two children are involved in the community, and witheach other as a family, swimming, running, giving and attending skating clinics, in children’s dance, camping, church, volunteering, andvisits to Quebec to see his family. Mr. JCL is of the view that the children have been healthy throughout this period and Ms. TLB isoverly sensitive to health concerns. In argument, he maintained that Ms.

TLB is a “hypochondriac” though there is no evidence of anysuch thing. He notes that he has training as a life guard, a firefighter, and a policeman, with lots of help in first aid training, and he is ableto recognize and deal with any health concerns regarding the children if and when they arise. [16] In terms of the breakdown in communication, Mr. JCL maintains that Ms. TLB is very emotional in their communications,prone to yelling, crying, and terminating telephone calls without resolution.

He has suggested using a “pass on book” where the childrenand the parents can make notations in the book and keep each other informed; however, Ms. TLB has not warmed to that proposal. [17] Mr. JCL denied that, in the conversation alleged by Ms. TLB of June 7, 2010 he indicated no continuing interest in thechildren or that he offered to let them live full-time with their mother if she paid him $2,000 a month. [18] In short, Mr. JCL is of the view that the present arrangement of joint custody and shared parenting continues to beappropriate.

He relies upon the Consent Variation Order of McDonald, J. wherein it was indicated that no

section 3 or

section 7 expenseswere payable by either party. He denies that he has failed to pay an appropriate share of the children’s expenses in the past. Heacknowledges a need for better means of communication between Ms. TLB and him. Decision [19] I am satisfied that it is in the best interests of the children that joint custody remain, and that the parents share parenting timeequally, on the alternating week on, week off basis that presently exists. Both parties acknowledge that the children love both theirparents and love being with each of their parents. The children’s needs are being met by both parents.

It is often the case that twoseparated parents will have different parenting and disciplinary styles, but nevertheless I am satisfied that each parent is a good parent,acting in what they believe is their children’s best interest. [20] I am satisfied on the evidence that the incomes of the parties remain relatively similar, and accordingly, the Order of Justice McDonald of August 21st, 2007 regarding

section 3 childcare expenses will continue; that is, neither party shall be required to pay theother any amount in

section 3 expenses. [21] However, underlying that Consent Order was the expectation that each party would pay their fair share of such expenses. I donot accept Mr. JCL’s evidence that he has been paying his fair share of various expenses since the beginning of 2009. Rather, I amconvinced by Ms. TLB that Mr. JCL has failed to pay his agreed fifty percent share of expenses, whether they be s. 3 or s. 7 expenses. Iam mindful that some of these expenses would not have been approved by Mr. JCL, had they been presented to him for approvalbeforehand, by Ms. TLB.

Nevertheless, it seems to me that many of the expenses being claimed by Ms. TLB, over a two year period, arereasonable and not excessive. Some are not, or should have been approved beforehand. Accordingly, Mr. JCL is to pay Ms. TLB theamount of $3,500.00 for his share of the expenses incurred by Ms. TLB. [22] Regarding ongoing

section 7 expenses, the parties are reminded that the necessities of life such as clothing, food, and shelterare not included in

section 7 expenses. Rather,

section 7 expenses are extraordinary expenses. Extraordinary expenses may include suchitems as extra school fees, fees for extra-curricular sporting activities, sport and recreational expenses, health care expenses andmedications. See, for example, Middleton v. McPherson (AB KB), [1997] A.J. 614.

[ 23 ] If the party incurring extraordinary expenses does not first consult the other party about those expenses, the Court may disallow the claim Lopatynski v. Lopatynski [1998] ABQB 981 at para. 35. [ 24 ] It is the decision of this Court that, if either party wishes the other to share in an extraordinary expense, the party so wishing must first identify the expense and the amount of that expense, and seek the agreement of the other party to incurring that expense and sharing it. The request should be made by email.

In the event that the consent of the other party is not forthcoming, the requesting party may nevertheless incur the expense and may thereafter make claim before the court for compensation of that expense; at which time the Court will determine whether the expense is an extraordinary expense; whether it was reasonably and necessarily incurred; the amount of the expense and whether that expense is to be shared between the parties. [ 25 ] As the parties are self-represented, I have prepared and signed an Order encapsulating the matters decided above. [ 26 ] There has been divided success on this application and therefore no costs are awarded in respect of this application.

Heard on the 6 th day of June, 2011. Dated at the City of Calgary, Alberta this 11 th day of July, 2011. R. J. Hall J.C.Q.B.A. Appearances: TLB JCL a.k.a. DL