Labonte v. Labonte, 2011 ABQB 614

Court of Queen ’ s Bench of Alberta Citation: Labonte v. Labonte, 2011 ABQB 614 Date: 20111004 Docket: 4803 150307 Registry: Edmonton Between: Laura Margaret Labonte Plaintiff - and - Gregoire Joseph Dollard Labonte Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Gregoire Labonte seeks a change to the division of parenting time between the parties. Laura Labonte seeks an order concerning child support. [ 2 ] The parties were married in October1986.

They separated in February 2009. They were divorced in November 2009. There are two children of the marriage, a 14-year-old son and a 12-year-old daughter. Two older children are no longer “ children of the marriage ” . Parenting

[ 3 ] At the time of the divorce, the parties entered formal minutes of settlement. These provided that the parties would have joint custody of the children of the marriage, that the children would have their prime residence with Ms. Labonte who would have primary day-to-day responsibility for the guidance and upbringing of the children, and that Mr. Labonte would have reasonable access to the children. The subsequent Divorce Judgment essentially parallelled the minutes in relation to these points though it did not mention that Ms.

Labonte would have primary parenting responsibility. [ 4 ] At the time of the divorce Mr. Labonte lived in a condo in Edmonton. His home was not suitable for accommodating the children. He lived there alone. Now he lives in a conventional home in Sherwood Park and has a new partner. He is now able to accommodate his children in his home. Ms. Labonte has remarried and lives in Sherwood Park as well. [ 5 ] After the divorce and throughout 2010 the parties had no significant problems concerning Mr. Labonte ’ s parenting time with the children. He is a firefighter. His work

schedule is complicated. The access arrangement was that the children were with him for two periods in his 16-day work cycle. One period was for only 1 night. The other period was for 4 nights. The split of his access into two periods was inconvenient mainly because of the very short duration of the first period. [ 6 ] In January 2011 Mr. Labonte proposed that the parenting time be divided equally between the parties. The children, by this proposal, would stay with each parent for 8 days of each 16-day work cycle. Ms. Labonte did not accept the proposal. However she initiated a change to the parenting

schedule which had been in place. The children were thereafter with Mr. Labonte for 6 days of the 16- day cycle when Mr. Labonte had 6 days off work. Since February 2011 therefore Mr. Labonte has had the children for one block of 6 days duration in each 16-day cycle. [ 7 ] Mr. Labonte now seeks an order that the children will be with him for 8 days and that they will be with Ms. Labonte for the other 8 days of each 16-day cycle. [ 8 ] Ms. Labonte submits that Mr. Labonte has not shown a change in circumstances.

In my view the requirement that there have been a change of circumstances is not a significant hurdle when the existing order is not specific as to the division of parenting time but rather grants reasonable access, and when the parties themselves have either by agreement or unilaterally reached and changed the de facto arrangements since the order was made. Such need as there is for a change of circumstances is satisfied by the fact that since the existing order was made Mr. Labonte has acquired appropriate accommodation for the children in the same area as Ms.

Labonte ’ s home and has a new partner who is willing to assist him with parenting. [ 9 ] On the argument of this application it appeared that Ms. Labonte ’ s main objection to equally shared parenting was that there would be a few times in each period when the children would be with Mr. Labonte when he would have to make some arrangement for transport of the children to or from their extra curricular activities given that he would be at work. This is a problem that many if not most families deal with frequently. It does not justify rejection of Mr. Labonte ’ s proposal. [ 10 ] In her affidavit Ms.

Labonte appears to have attempted to impugn the quality of Mr. Labonte ’ s parenting. In my view her evidence does not support any such conclusion. [ 11 ] In my view Mr. Labonte ’ s proposal is appropriate. I order that the children reside with him during the 6 days off in his 16- day work cycle and on the 2 days following those 6 days. I order that they reside the remainder of Mr. Labonte ’ s 16-day work cycle with Ms. Labonte. Child Support - Guidelines, s. 3 [ 12 ] Given that the children will be living half the time with Ms. Labonte and half the time with Mr.

Labonte neither party will be required to pay child support under s. 3 of the Guidelines to the other on a go forward basis.

[ 13 ] Ms. Labonte claims that Mr. Labonte owes some arrears of child support arising between June 2010 and January 2011. Up to June 2010 and after January 2011 Mr. Labonte paid the s. 3 amount he was required to pay. During the intervening 8 months, he paid $400 a month less than the amount he was required to pay ($3200 in total). He says that Ms. Labonte agreed to accept that reduction to permit him to recover from a financial setback. Ms. Labonte agrees that she agreed to accept less child support during this period but that Mr.

Labonte agreed he would make up the deficiency when his financial circumstances permitted. [ 14 ] It is not possible in the context of a chambers application for the Court to determine which of the two versions of the agreement is accurate. In my view the onus is on Mr. Labonte to establish that Ms. Labonte agreed to waive the entitlement forever. It is Mr. Labonte who asserts that the parties agreed to deviate from the order. In my view, in the circumstances, in the absence of a variation of the Divorce Judgment, he is obligated to pay the shortfall. I set the s. 3 arrears at $3200.

There will be no enforcement against Mr. Labonte so long as he pays those arrears at the rate of $100 per month beginning November 1, 2011. Child Support - Guidelines, s. 7 [ 15 ] There is a significant dispute regarding Guidelines s. 7 child support. Each of the children is heavily involved in an extracurricular activity. The parties ’ son is involved in elite swimming. The parties ’ daughter is involved in dancing at an intensive level. Both activities are very expensive. [ 16 ] In the last years of the marriage, Ms. Labonte earned a very significant income as a real estate agent.

In the Divorce Judgment her income was stated to be $150,625. Apparently this was after significant income splitting with Mr. Labonte and her income was in fact very substantially more. Mr. Labonte ’ s income was stated to be $76,435 in the Divorce Judgment. I assume this did not include the income splitting. [ 17 ] At the time the family was together the children were involved in swimming and dancing but since the parties separated their involvement has become significantly more intense and expensive. Ms.

Labonte assumed control and direction of the children ’ s extracurricular activities since it was only possible to finance them because of her large income. But for that income, the children would not have been involved and would not have been able to progress to the level of their current involvement. [ 18 ] Ms. Labonte ’ s income has subsequently significantly reduced in part because she now has the support of her new husband who is wealthy.

The materials indicate that her new husband generously supports the son ’ s swimming team. [ 19 ] In my view a just division of the expense of the swimming and dancing would be for Mr. Labonte to contribute, on an ongoing basis, 33.66% of the cost of those activities in the year ending on the date of the Divorce Judgment, November 30, 2009. The percentage is the share of s. 7 expenses which were apportioned to him in the Divorce Judgement. [ 20 ] The level of expense as at November 30, 2009 is the level which he allowed to exist for those two activities when the family was together.

The increase in the expense since that time is not a matter over which he has had practical control. If the parties were still together with their current incomes, it is doubtful that they would be able to afford to keep their children in these expensive activities. Ms. Labonte permitted their involvement to continue and to increase. The resulting increased cost, if it is to continue to be incurred, should be her burden. In my view it is just in the unique circumstances of this case if Mr.

Labonte ’ s contribution is frozen at the level at which it sat at the time of the divorce. [ 21 ] The level of expense for these activities as at the date of the Divorce Judgment is not apparent in the materials filed on this application. If the parties are not able to agree as to what that level was, they may return with appropriate evidence, for a determination. [ 22 ] As to all other s. 7 expenses, they will be shared proportionately on the basis of the parties ’ current incomes, as disclosed by their 2010 income tax assessments. Holiday Access

[ 23 ] The parties seek an order addressing the division of vacation time. [ 24 ] I order that, unless otherwise agreed by the parties, in even numbered years, Ms. Labonte will have the children from July 1 to July 15 and from August 1 to August 15 and Mr. Labonte will have them from July 16 to July 31 and from August 16 to August 31. In odd numbered years Mr. Labonte will have the children from July 1 to July 15 and from August 1 to August 15 and Ms.

Labonte will have them from July 16 to July 31 and from August 16 to August 31. [ 25 ] Unless otherwise agreed, the children ’ s Christmas vacation and Spring break vacation will be divided equally between the parties with Ms. Labonte having the first half in even numbered years and Mr. Labonte the second half, and Mr. Labonte having the first half in odd numbered years and Ms. Labonte having the second half. Costs [ 26 ] There shall be no award of costs. Heard on the 8 th day of September 2011. Dated at the City of Edmonton, Alberta this 4 th day of October 2011. Brian R. Burrows J.C.Q.B.A.

Appearances: Melanie J. Bowbell for the Plaintiff Karin F. Schwab for the Defendant