Ludwig v. Ludwig, 2011 ABQB 522

Court of Queen ’ s Bench of Alberta Citation: Ludwig v. Ludwig, 2011 ABQB 522 Date: 20110826 Docket: 4803 137521 Registry: Edmonton Between: Wanda Cherie Faith Ludwig Plaintiff - and - Peter James Ludwig Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Sterling Sanderman _______________________________________________________ [ 1 ] Mr. Ludwig and his ex-wife now known as Ms. McKernan have been involved in a long-standing dispute in relation to the access that Mr. Ludwig should enjoy in relation to their daughter Dailyn.

Dailyn will celebrate her tenth birthday in December of this year. She is blessed with having two parents who truly love her and profess a commitment to insure that their decision making is truly in her best interests. [ 2 ] Although the marriage that produced Dailyn is over, her parents have a common obligation that will continue for a number of years. Their common obligation is to create an environment in which Dailyn can flourish and develop all of her talents and abilities to the greatest extent possible.

They should want her to be more successful than they have been in their lives and they should be making decisions that insure her present and future happiness. One would expect two committed and loving parents, who no longer live together and accept their common obligation to be able to consistently make decisions that are clearly in Dailyn’s best interests. Unfortunately, that is not the case.

[ 3 ] Mr. Ludwig and Ms. McKernan have come to court too often in the past in order to have one’s will imposed upon the other. They need to avoid this type of confrontational existence. It creates an environment that is harmful to Dailyn. It is unfortunate that they cannot reach consensus on matters in issue in order to alleviate pressure on Dailyn. [ 4 ] Two factors create continuing conflict between the parents. Ms. McKernan provides the day-to-day care for Dailyn. Consequently, she is able to exert significant influence upon her. Unfortunately, some of this is detrimental. Ms.

McKernan is somewhat controlling in relation to the access she allows Mr. Ludwig to enjoy. She cannot continue to behave in this fashion. She has to begin to trust him to be a responsible individual who will continue to provide exemplary care for and direction to Dailyn when she is in his custody. He has to continue to behave in a fashion that continues to earn the trust reposed in him by the Court. Ms. McKernan needs to give Mr. Ludwig credit when he deserves it. [ 5 ] Ms. McKernan cannot continue to micro-manage Dailyn’s life. That approach is not in her best interests. She needs to recognize that Mr.

Ludwig and his new extended family will have a role to play in Dailyn’s future. It will be a significant role. She cannot change this fact nor should she attempt to diminish his influence in any fashion. It is in Dailyn’s best interests that she experience the positive influence of both of her parents in her life. [ 6 ] Because of the manner in which the parents have dealt with one another in the past, Mr. Ludwig asks for a solution that is impractical at this time. He wants a parenting order that will cover every potential eventuality for the next ten years.

He wants the Court to craft an order that will have applicability to any development that might enter their lives. He wants a rigid solution that solves any potential problems. He wants nothing left to chance. He wants to close the lines of communication with Ms. McKernan. He wants to be able to refer to the court order whenever there is potential conflict between the parties. [ 7 ] There is no doubt that the parties need clarity in relation to the obligations and responsibilities they have towards one another and to Dailyn. Unfortunately, the type of order that Mr. Ludwig seeks is highly impractical.

Life is fluid. It is not static. The future needs of Dailyn and what is in her best interests cannot be forecast with the degree of certainty that would justify a long term order. She will be a much different person after she celebrates her twelfth birthday. Her needs and best interests will be different when she turns fourteen. As she evolves what is in her best interests may change. Hopefully, Mr. Ludwig and Ms.

McKernan will develop the requisite collective skill set that will allow them to properly identify what is in her best interests and they will be able to make decisions that properly address that need. [ 8 ] In order to make decisions that are clearly in Dailyn’s best interests, the parents have to make selfless decisions. They must think of her and not themselves. In the past, their decision making process has been motivated by selfish interests. That must stop. That approach is clearly counter productive.

The parenting order that will be made will hopefully bring the clarity required to set out the respective obligations and responsibilities of the parents. It is intended to provide Dailyn with the opportunity to have a meaningful relationship with both of her parents. [ 9 ] On July 14, 2011, I set the

schedule of access that will be in place for the remainder of the summer break. This order will set the terms of the continuing access from September of 2011 onward. It can be adjusted by consent between the parties or if there is a legitimate, and I stress legitimate, change in circumstances the parties can bring the matter back to court to make changes that may be warranted as case management will continue. [ 10 ] Any order granted by the Court will not contain the philosophically charged

preamble suggested by Mr. Ludwig. Mr. Ludwig and Ms. McKernan will have joint custody of Dailyn. Ms. McKernan will provide the day-to-day care for her. Mr. Ludwig will have parenting time every second weekend from the dismissal of school on Friday until Sunday evening. This access will begin September 9, 2011. If there is no school scheduled for Dailyn on the Friday or Monday of any access weekend for Mr. Ludwig, then his access will be extended to include those non-school days. [ 11 ] Summer vacation for Dailyn will be shared by the parents in the following fashion. In odd numbered years, Mr.

Ludwig will have Dailyn from the last day of school in June until July 15. On July 15, Dailyn will be returned to her mother. Mr. Ludwig will then have Dailyn from August 1 to August 15 of that year. In even numbered years, Mr. Ludwig will have Dailyn from July 15 to August 1 and from August 15 to two days before school recommences. She will be returned to her mother at that time so that she can prepare for the next school year.

[ 12 ] In even numbered years, Mr. Ludwig will have Dailyn for the Easter break. In odd numbered years, she will stay with Ms. McKernan. The Easter break is from the last day of school before Easter to the evening before the commencement of classes. [ 13 ] It is my understanding that Dailyn’s school district has a spring and fall break. Consequently, Mr. Ludwig will have Dailyn for every fall break. Ms. McKernan will have Dailyn for every spring break. If the school district discontinues one of these breaks, then the parents will alternate the break that remains with Mr.

Ludwig having Dailyn in even numbered years and Ms. McKernan having Dailyn in odd numbered years. [ 14 ] It is important that Dailyn be with her mother on Mother’s Day and with her father on Father’s Day. If Mother’s Day falls on a weekend where Dailyn is to be with her father, then she shall stay with Ms. McKernan and Mr. Ludwig will have Dailyn for the weekend immediately following Mother’s Day. The same arrangement will be in place for Father’s Day. Mr. Ludwig will have Dailyn for that weekend. If it is on a weekend that she is to remain with her mother, then the necessary exchange of weekends will take place.

This is something that certainly can be worked out by the parents well in advance of any Mother’s Day or Father’s Day weekend. This is the type of discussion that should be common place between the parties and not require court intervention. [ 15 ] Unless the parties mutually agree to change the exchange times for Dailyn in order to address some specific need, it will be at 6:00 p.m. whenever Dailyn moves from one home to the other.

It is recommended that each parent maintain a calendar setting out the days and times that Dailyn will move from one home to the other so that there is no disagreement in relation to this. The parents are directed to compare one another’s calendar to insure that there is no misunderstanding when Dailyn moves from one home to the other. [ 16 ] It appears as if the parents have come to some accommodation in relation to the location of the exchange of Dailyn, It will continue to be Wasetenau unless agreed upon otherwise by the parties. Mr.

Ludwig has indicated that he is seeking some compensation in relation to the expenses he incurs in exercising his access to Dailyn. This may become problematic in the future as the Province of Alberta is examining whether or not Ms. McKernan should be allowed to continue to operate a motor vehicle in this province. It would appear as if this investigation may have been brought on by Mr. Ludwig. This is a classic example of one party failing to act in a selfless fashion that could have a detrimental effect in maintaining an environment that is beneficial to Dailyn’s development.

At the present time, there is not enough financial information before the Court that would allow it to make an order recognizing the inequities in the costs incurred by Mr. Ludwig in order to exercise his access. Ms. McKernan has properly asked to examine Mr. Ludwig in relation to his earning capacity. Once the Court has the requisite information in relation to the incomes of each party, then this issue can be addressed. [ 17 ] The fact that Ms. McKernan may lose her driving privileges underlines the folly in attempting to make too rigid an order. Orders must be flexible.

They must be based on the premise that the parties will act selflessly and that they will apply common sense to any issue that arises extemporaneously. If they cannot resolve the matter between themselves, there is always the option to come back to the case management judge who will make the decision. It is preferable that the parties resolve these matters between themselves. In that way trust and confidence can be built between the parents. [ 18 ] Mr. Ludwig’s proposed court order contemplates dealing with 30 specific problem areas he identifies that exist between the parties.

Many of them are issues that will not arise for a number of years. It would be folly to attempt to craft an order that reaches that far in the future. [ 19 ] He also sets out very specific ways in which the parties would address the hospitalization of either parent or of Dailyn. He also has an extensive formula for Dailyn’s attendance at family funerals or her attendance upon specific individuals suffering from terminal illnesses. For the reasons indicated earlier, it is not necessary to anticipate any eventuality that could possibly occur and to order how it will be addressed.

This is something that can be dealt with by the parties in the eventuality that one of these situations develops. If they cannot find consensus, I am prepared to make a ruling. [ 20 ] Because of the past difficulties in relation to Mr. Ludwig exercising his access, it is important that Dailyn continue with the psychological counselling she is receiving from Dr. Bonnie Haave. Dr. Haave will determine the type of counselling and its duration. Ms. McKernan will cooperate in the scheduling of appointments with Dr. Haave for times when Dailyn is in her care.

[ 21 ] Both parents will have a medical practitioner available for Dailyn in their respective towns. Both parents will have access to any medical information in relation to Dailyn and both parents will keep the other informed in relation to any medical problems that Dailyn experiences while in their care. [ 22 ] If either parent chooses to take Dailyn outside the Province of Alberta for any period of time, they will provide the other parent with an itinerary of their travel plans. The itinerary will disclose the dates of travel, the duration of the trip, places to be visited and a contact telephone number.

Each parent is entitled to apply for a passport for Dailyn without the other parent’s permission. [ 23 ] Dailyn shall not be prohibited from phoning the non-access parent from the residence in which she is presently staying. Calls will be made to Mr. Ludwig from Ms. McKernan’s home on his cell phone. Calls will be made from Mr. Ludwig’s home to Ms. McKernan’s home on her home land line. Dailyn shall not be restricted in her attempts to make contact with the non-access parent. [ 24 ] I decline to make any further orders as requested by Mr. Ludwig.

It would be counter productive to do so at this time and could potentially create additional areas for dispute between the parties. I am much more inclined to rely upon the professed cooperative attitude promised by the parties to resolve any difficulties that might arise extemporaneously. If the parties cannot come to agreement in relation to the outstanding financial issues, they can bring those matters back to court once they have gathered the requisite information. [ 25 ] Each party will bear their own costs. Heard on the 14 th day of July, 2011.

Dated at the City of Edmonton, Alberta this 26 th day of August, 2011. Sterling Sanderman J.C.Q.B.A. Appearances: Mr. Brook S. Mishna Venture Law Group LLP (for the Plaintiff) Mr. Peter James Ludwig (on his own behalf)