Weinkauf v Weinkauf, 2011 ABQB 446

Court of Queen ’ s Bench of Alberta Citation: Weinkauf v Weinkauf, 2011 ABQB 446 Date: 20110708 Docket: 4803 143736 Registry: Edmonton Between: Tammy Wyone Weinkauf (Smithson) Plaintiff - and - Kerry Peter Weinkauf Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Background [ 1 ] Mr. Weinkauf applied for the following Orders and relief:– 1. An Order varying paragraph 4 of the Divorce Judgment and Corollary Relief Order granted on November 20, 2008 and directing Ms.

Smithson to pay to Mr. Wienkauf a base amount of child support (Section 3) for the one child of the marriage in accordance with the Federal Child Support Guidelines commencing May 1,2011 based on the line 150 income as reported by Ms. Smithson on her 2010 Income Tax Return;

2. An Order varying paragraph 2 of the Amended Consent Variation Order granted by the Honourable Madam Justice D. C. Read on August 27, 2009 and directing that, commencing May 1, 2011, each party shall be responsible for their proportionate share of the following

Section 7 expenses for D.R.W., with reimbursement to be made within 30 days of the provision of receipts for these expenditures: (

a) Health related expenses that exceed insurance reimbursement by at least $100.00 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aid, glasses and contact lenses 3. Costs of this application. [ 2 ] Ms. Smithson has a cross-application as a result of difficulties that she says has arisen with respect to the access given that Mr. Weinkauf has insisted on following his

interpretation of the access provisions strictly, and has ignored his obligation to consult with the child. Specifically she seeks the following Order:– (

a) The Ms. Smithson be provided the first opportunity to care for the child if Mr. Weinkauf has other obligations; (

b) That the access provisions specifically state that the child can choose to remain for longer periods than the specified schedule. The child is 13, and from time to time expresses a desire to stay over on the Sunday night, or for additional time, which is not permitted by Mr. Weinkauf; (

c) Permitting Ms. Smithson’s family to pick up or drop off the child in her stead. This has also been refused; (

d) Specific directions that Mr. Weinkauf is required to consult and agree with Ms. Smithson on any decisions pertaining to the child’s school, extracurricular activities, health care, and the like, and that she is entitled to all information pertaining to the child. Mr. Weinkauf has made unilateral decisions, such as changing the child’s school without consultation or even advising this was done, then advised the school they could not provide Ms.

Smithson with information. [ 3 ] The Court has resolved the outstanding matters with respect to ongoing child support by using both parties’ 2010 Guideline Income effective April 1, 2011 to accord with the Guidelines based on the line 150 income as reported by the parties on their 2010 income tax returns, and the appropriate adjustments have been made to the Orders respecting the payment of other expenses.

Analysis [ 4 ] With respect to the variation of access provisions, these parties continue to experience great difficulty communicating with each other in regards to their child, even though they separated in April 2007 after a 10 year marriage. The one child of the marriage is now 13 years of age, and the parties have joint custody and joint guardianship.

The child primarily resides with the father. [ 5 ] The Divorce Judgment specified access arrangements giving the mother access to the child every second weekend commencing between 5:00 p.m. and 6:00 p.m. on Friday to 7:00 p.m. on Sunday, and to include the extra half day in the event of a long weekend. Further the mother is entitled to one half of Christmas, Spring Break, and Summer as well as Mother’s Day. The Divorce Judgment also provided that there would be access at other times as were agreed upon between the parties.

[ 6 ] With respect to the right of first refusal sought by the mother which requires the father to give her the first right to care for the child when he is not available, the father believes that the child’s wishes should take precedence over any right of first refusal given that he is now 13 years of age. For example, during Spring Break this year the father deposes that the child specifically requested that he be able to remain at home so that he could spend time with his friends although the father had to work.

The child did not wish to spend the week at the mother’s house, as according to the father the child would have been bored there. [ 7 ] With respect to the mother’s complaint that the father has consistently ignored his obligations to consult with her regarding the child, it appears that is the case. Primarily the father does not consult with the mother because these parties never seem to agree on any major decisions.

These parties it appears do not even agree on what it is that has transpired between them, such that it appears that the Court must order that all communications between these parties on any matters in the future be in writing by way of email. [ 8 ] Given that the child is 13 years of age, and appears to have the maturity to make his own access arrangements with the mother, the mother’s requested right of first refusal in all instances without first consulting with the child would tend to marginalize or event negate the child’s specific wishes.

If the child is not prepared to go with his mother during the times when the father is not available to care for the child, the child should be able to make that decision on his own without facing a right of first refusal in favour of the mother which would effectively preempt the child’s decision. If the child is consulted first there would be no need for example to advise the mother that although the father is unavailable the child is not going to spend the time at the mother’s house.

This as well would be unnecessarily harsh and a waste of the parties’ time. [ 9 ] Accordingly the right of first refusal is impractical and would not sufficiently recognize the child’s wishes and priorities. That part of the mother’s access variation application is denied.

The mother’s request that all communication between these parties be why way of written emails is however granted. [ 10 ] The next part of the mother’s access variation application is that all “major” decisions regarding the child not be made by the father without 30 days prior notice to the mother in writing through written email, with the exception of emergency health care decisions.

The father has been making all decisions essentially for the child including for example the recently unilaterally changing of schools for the child because the father does not believe that he can ever come to any agreement with the mother. [ 11 ] I conclude however that the best interests of the child require that the father give the mother at least 30 days written email notice before making any major decisions with respect to the child, except for emergency health care decisions.

The father can continue to make major decisions for the child, but must notify the mother of what those major decisions will be 30 days in advance of the decision becoming effective.

It will then be the mother’s responsibility to decide whether she wishes to come to Court to challenge those decisions. [ 12 ] There will also be specific directions that the father is required to immediately entitle the mother to all information pertaining to the child so that she can meaningfully partake in these major decisions. [ 13 ] A further area of concern of the mother is that her family be allowed to pick up or drop off the child in her stead. This apparently has been consistently refused primarily by the father because he believes that Ms.

Smithson’s family speaks ill of him to the child while driving him around or while picking him up. [ 14 ] I conclude that the reality is that the wife’s family is likely to continue to criticize the father regardless of whether they are picking up or dropping off the child, and apparently the wife’s family is readily available to pick up and drop off the child in the wife’s absence. [ 15 ] The father submits that the pick up and drop off of the child by the wife’s family can only occur upon 24 hours written email notice to him that this is going to happen, but practically speaking this is too onerous a requirement in my respectful opinion.

The picking up or dropping off of the child in the absence of the mother is something that will often occur in such a way that 24 hours notice is simply not practical. There is no real issue with respect to the suitability of the wife’s family either picking up or dropping off the child. Accordingly this will be allowed without prior written email notice.

[ 16 ] Both parties seek costs in this matter, but given the mixed success and results herein, I have determined that each party shall be responsible for their own costs of this application. Heard on the 6 th day of July, 2011. Dated at the City of Edmonton, Alberta this 8 th day of July, 2011. Donald Lee J.C.Q.B.A. Appearances: Tina Huizinga Barr Picard for the Plaintiff Denise Kiss Rand Kiss Turner LLP for the Defendant