RNK v JLL, 2011 ABQB 714

Court of Queen ’ s Bench of Alberta Citation: RNK v JLL, 2011 ABQB 714 Date: 20111118 Docket: 4803 158133 Registry: Edmonton Between: RNK Applicant/ Respondent by Counterclaim - and - JLL Respondent/ Applicant by Counterclaim 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 Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. RNK ask for shared parenting of the two younger children of the marriage. Ms. JLL asks for the parenting issue to be adjourned to Special Chambers for a viva voce hearing. She also asks for interim, pre-disclosure, child and spousal support, and for an order dispensing with the father ’ s consent for counselling of the children.

[ 2 ] The parenting issue is adjourned to a special chambers hearing with viva voce evidence.

Given the evidence at this hearing about the wishes of the oldest of the three children, the scholastic difficulties of the youngest of the three children and the presence of the younger children at an incident involving police attendance at their home, it seems unlikely that the mere, disputed, issue of how much time each of the parents spent with the children during the parties ’ separation will be a material factor in determining what parenting regime is in the children ’ s best interests going forward; nevertheless, to the extent that the credibility of the parties may become an issue in the court ’ s determination of what is in the children ’ s best interests, it is useful to plan for a viva voce hearing.

Since the youngest of the children is already in school, so that there is no risk that any of the children will lose the bonding they already have with their father, there is no urgent need to ensure that - for the relatively short delay until a special chambers hearing can be scheduled - the children have any more frequent access with their father than is currently available to him.

The request for dispensation of the father ’ s consent for counselling is an aspect of parenting that is adjourned to the special chambers hearing. [ 3 ] The father will, on an interim, pre-disclosure basis, pay child support for the three children of the marriage based on deemed gross yearly income of $64,200.00. The issues of retroactive support and s. 7 expenses are adjourned to the special chambers hearing. [ 4 ] There is only an inadequate explanation available at this hearing for the failure of the mother to reside in the matrimonial home.

This, together with the fact that we are nearly at the end of 2011 and the only income information available for the mother is for the year 2010, is prior to the separation of the parties, means that the issue of spousal support must also be adjourned to the special chambers hearing. 1. Background [ 5 ] The parties married in August, 2000. There are three children of the marriage, two boys aged 8 and 6, and the 17 year old son of the wife in relation to whom Mr. RNK stands in loco parentis , that is, has acted as a parent. [ 6 ] Mr.

RNK is employed by [...] where he earns approximately $5,400.00 per month and is also gradually taking over the K. family farm. [ 7 ] Ms. JLL has been employed as an education assistant and as a health care aid; her 2010 income tax return indicates that she earned $7,622.00 during that year. [ 8 ] The parties separated on January 1, 2011. [ 9 ] The parties ’ matrimonial home is in the town of [...]; it is listed for sale, and is currently unoccupied. Mr.

RNK is paying for the expenses of that home. [ 10 ] The mother and the children are living in rented accommodation in [...], and the children are attending school there. The father states that his current residence, which is on the K. family farm, is close to [...], and that he would be able to drive the children to school. [ 11 ] The father acknowledges that the older of the 3 boys does not want to have access with him. [ 12 ] The parties ’ youngest child was held back for the 2011-2012 school year. [ 13 ] On August 23, 2011, Mr.

RNK was charged with assault of his wife; one of the terms of his bail is that he have no direct contact with his wife. Prior to August 23, 2011, the parties agreed on the parenting time that each would have; there is a dispute between them as to the amount of parenting time that the father had, but there is no issue about the father having had extended parenting time with his children. Since August 23, 2011, the mother has insisted that the father have alternate week-end access, and access once during the

week. The father has not taken the opportunity of exercising the interim weekly access. 2. Parenting issues adjourned for viva voce special chambers hearing [ 14 ] Because there are no current legally valid presumptions concerning parenting regimes - i.e. there is no child of tender years doctrine and no primary caregiver guideline - it may well be that unless one parent can prove that a child ’ s best interests require the imposition of a specified parenting regime, the court will invoke Parliament ’ s maximum contact principle and order shared parenting.

The evidence on this application establishes that the father has a close connection with his children and has been involved in their parenting for extended periods of time. In many situations, if nothing else were known, an order for shared parenting might be appropriate.

However, in this case, the mother has raised three factors which lead the court to conclude that a more detailed assessment of what is in the best interest of these children than is possible in morning chambers is required here. [ 15 ] The three factors which are potentially relevant to a parenting regime other than shared parenting are: first, the effect on the younger children of the anticipated break up of the sib line. The younger two of the three children of the marriage have lived with their older brother all of their lives.

The father acknowledges that, given the poor relationship between himself and the oldest of the three children, he does not propose shared parenting with that child. However, on this application it is not known what effect the break-up of the solidarity that the children may have with each other might have on the two younger children. [ 16 ] The second factor is the poor scholastic performance of the youngest of the children.

It may be that it is unusual in today ’ s education system for a child to be held back for one year in grade school; the reasons why this action was taken here should be explored for any potential relevance to the parenting regime that would be in the that child ’ s best interests. [ 17 ] The third factor is the presence of the children at the incident which resulted in the laying of criminal charges against the father. No matter what the outcome of the criminal proceedings may be, the acknowledged fact is that the children were present when the August 23, 2011 incident occurred.

At the least, this incident revealed an unhealthy dynamic between the parents which resulted in the intervention of the police; whenever policing and parenting are so intimately connected, the court must be concerned about the effect of that relationship on the children. [ 18 ] I have not considered as an issue relating to the granting of an adjournment the mother ’ s claim that the middle child suffers from behavioural problems which are attributable to the father ’ s influence.

That is obviously a contested claim, and one which is more properly left for a special chambers court to consider. [ 19 ] Having determined that the situation here requires additional assessment of the appropriate parenting regime, the court then turns its mind to whether the delay involved in finding time for a special chambers hearing with viva voce evidence - and the parties advise that the earliest date for such a hearing is likely in early February 2012 - will, or may, itself cause such negative effects on the children ’ s best interests that the delay should not be countenanced. [ 20 ] The youngest of the children affected by the current dispute is already in school.

All of the children have already bonded with their father, and have as recently as this summer spent extended periods of time with him. For the last two and half months, the father has had parenting time on alternate week-ends and once during the week. In the short term, that is the time required to

schedule a special chambers hearing, the parenting arrangement that has been in place since August 23, 2011 can continue without damaging the children ’ s relationship with their father.

Indeed, given the degree of conflict between the parents, the court orders that the parenting regime that has been in place since August 23, 2011 will continue until further order of the court or as may be agreed between the parties. [ 21 ] Having concluded that it cannot order shared parenting on this application and that an adjournment for a special chambers hearing would not negatively affect the children ’ s best interests, the court must also consider whether there is any point to an adjournment for a special chambers hearing with viva voce evidence. [ 22 ] As the court has attempted to explain above, any mere disagreement between the parties concerning the amount of time which the father spent with his children since se paration is probably not a relevant factor in determining if shared parenting is the appropriate parenting regime here: it is obvious from the evidence filed by each of the parties that the father has had extended periods of

parenting with his children. Therefore, the evidence is that the father has in the past and could in the future share the parenting with the mother. The real issue in these proceedings is therefore not whether he can parent the children on a shared parenting basis but whether such a regime is in the children ’ s best interests. A special chambers hearing will allow each of the parents to present additional evidence about what is in the children ’ s best interests. It may be that there is evidence available from sources outside the family, as for example from the school, or the children ’ s physicians.

A viva voce hearing will at least allow the parents ’ credibility to be assessed by a judge so that, if no evidence beyond that of the parents were available for the special chambers hearing, a judge would at least have some basis on which to assess the reliability of each parent ’ s evidence about such matters as behaviour, school performance, quality of the relationships within the sib line, etc. In

summary on this point, although it is not absolutely clear that the hearing of viva voce evidence from the parents will help to solve the parenting dilemma presented here, there is at least the possibility that such a hearing will provide a court with additional useful information concerning the children ’ s best interests. That possibility is one that should be left open. [ 23 ] In

summary on the parenting issue, this is not the type of case where the court can determine that the maximum contact principle favours shared parenting. The best interests of the children requires that the parenting contest be adjourned to a special chambers hearing with viva voce evidence. The court concludes that such an adjournment will not be detrimental to the children ’ s best interests. [ 24 ] The issue of whether the court should dispense with the father ’ s consent to counselling is one of the parenting issues that will be adjourned to the special chambers hearing. 3.

Child support [ 25 ] On an interlocutory, pre-disclosure basis, the court orders the father to pay child support for the three children of the marriage based on his income from Sturgeon Valley Fertilizers which is found to be gross annual income of $64,200.00. [ 26 ] The mother asserts that, since separation in January 2011, the father has not paid regular support.

Without determining whether the father must pay retroactive support back to January 1, 2011, on this motion, the court orders the father to pay child support based on deemed income of $64,200.00 starting November 1, 2011, until further order of the court. [ 27 ] No information was presented at this hearing about s. 7 expenses. The court therefore wishes to make it clear that this interim order not only does not address retroactive support, but also does not address s. 7 expenses. 4. Spousal support [ 28 ] Ms. JLL has claimed $800.00 per month in spousal support. [ 29 ] Although both parties agree that Ms.

JLL has always been financially dependent on her husband, there are two reasons why the court will not make an interlocutory spousal support order on this hearing. The first is that it is not clear to me on this application what Ms. JLL has been doing since separation. We are now nearly at the end of 2011, and the parties separated on January 1, 2011. However, the only clear financial information we have about Ms. JLL is her 2010 income tax information. We don ’ t know if, as a result of the separation, Ms. JLL had the capacity to, and did, increase her shifts.

There is some reference to the fact that she is taking week- end shifts, and, indeed, had offered the father access to the children every week-end. [ 30 ] The second is intertwined with the first and is that, on this application, it is not clear why Ms. JLL and the children of the marriage do not live in the matrimonial home while it is on the sale market and while Mr. RNK is paying for all of the expenses connected with the matrimonial home.

Where, as here, it is not obvious that the parties ’ combined income allows them to finance 3 homes, his, hers and theirs, a persuasive argument would have to be advanced to justify that life style for any period of time. As I understand the mother ’ s position, it is that Mr. RNK continued to treat the matrimonial home as his own and that that was intolerable to her; with respect, that type of concern could be dealt with by way of an exclusive possession order. On the other hand, it is possible that the parties agreed that Ms. JLL should leave the matrimonial home; in that case, Mr.

RNK may well have to pay for the additional costs which that relocation has attracted.

[ 31 ] The issue of spousal support will therefore have to be adjourned to the special chambers hearing. [ 32 ] Given the number of issues that have been adjourned to the special chambers hearing, counsel should give consideration to the appropriate length of the special chambers hearing: it may be that one day, rather than the more usual one half day, should be reserved. 5. Costs [ 33 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the receipt of this decision. Heard on the 4 th day of November, 2011. Dated at the City of Edmonton, Alberta this 18 th day of November, 2011. J.B.

Veit J.C.Q.B.A. Appearances: Brook S. Mishna, Venture Law Group for Mr. RNK Ning Ramos, forMs. JLL