QA v. SG, 2011 ABQB 747

Court of Queen ’ s Bench of Alberta Citation: QA v. SG, 2011 ABQB 747 Date: 20111202 Docket: 4801 145687 Registry: Calgary Between: Q. A. Applicant - and - S. G. Respondent Corrected judgment: A corrigendum was issued on December 12, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R. J. Hall _______________________________________________________ [ 1 ] The parties were married in September, 2002 and separated on April 30, 2007. The Applicant Ms. A. has filed for divorce.

[ 2 ] The parties had one child together, being S., now 6 years of age. The Applicant had two children from a previous relationship, E., now age 16, and A., now age 19. Those children resided with the parties during the currency of the Parties’ marriage until their separation. E. and A. have a common biological father, and he pays the Applicant child support in the amount of $360 per month for the two of them. A.

Is a post secondary student at SAIT. [ 3 ] The parties appeared to have settled parenting matters between them, resulting in a Consent Final Parenting Order from the Provincial Court of Alberta granted January 15, 2009. [ 4 ] The relevant parts of that Order are: 1. The child (S.) shall ordinarily reside with the mother. 2. The mother shall have parenting time with and responsibility for the child at all times except when the father has parenting time. 3.

The father shall have parenting time with and responsibility for the child each Friday after dinner until the following Sunday after dinner, and at such other times as agreed. The parents shall allow flexibility with the parenting

schedule to allow for the mother to have parenting time during occasional weekends and the father parenting time during occasional weekdays as mutually agreed. If the father finishes work early, he shall be at liberty to pick up the child from the daycare and shall make his best effort to inform the mother in advance of this. . . . 5. Both parties shall make their best efforts to resolve any issues between them and if unable to do so, shall consult a mediator and split the cost equally. . . . 8.

The father and mother shall each be entitled to have input into, and access to professional records regarding all major decisions respecting the child, including educational, medical, dental and religious upbringing. [ 5 ] Some specific rights in furtherance of paragraph 8 above were set out in paragraph 9 of the Order. The parties had agreed that the father would pay all of S.’s daycare expenses, but no other child support. [ 6 ] The Applicant now seeks: (

a) Child support for S., including retroactive support; (

b) Child support for A. and E.; (

c) A determination of the Respondent’s income; (

d) A revised parenting schedule; (

e) Final say regarding S.’s daycare and education; and (

f) a police enforcement clause regarding access and parenting times. [ 7 ] The Respondent seeks equal parenting time regarding S., which would effectively negate any requirement that he pay child

support for S. He denies standing in the place of a parent regarding A. and E. and therefore maintains there is no requirement for him to pay child support for them. He maintains his actual income has been lower than what is asserted by the Applicant. He wishes to continue to be involved in decisions involving S.’s daycare and schooling, and asks this court to direct that S. continue to attend St.

A. school, where S. is thriving and which provides before and after school care services. [ 8 ] Both parties have filed affidavits in support of their positions, and each party provided viva voce evidence in the hearing before me. Each party is self-represented and cross-examined the other party at the hearing. [ 9 ] The Applicant Ms. A. maintains that the Respondent is very controlling and attempts to micro-manage how she cares for S.; and she cites examples of such controlling behaviour.

She further says that, since the Respondent entered a new relationship he has acted on his own with respect to access, has been inflexible, and keeps S. for extra time over night without her approval or consent. She says that often he leaves S. in the care of his girlfriend rather than allowing the Applicant to have that time with S. She argues that the Respondent seeks equal parenting time only to avoid paying child support. [ 10 ] The Applicant concedes that S. is doing well at St.

A. school and that the school has before and after school care, but complains that it is not near her house so she has to drive S. to school then park her car in the belt line area of Calgary where she works, at a cost of $200 per month, when she could otherwise take the bus to work more cheaply. [ 11 ] The Applicant asserts that during the course of their marriage the Respondent acted as father to A. and E., who called him “Daddy” after an initial period of time.

He would deal with their school as if he was their father, he would care for them and take them to their activities. [ 12 ] The Applicant maintains the Respondent understates his income and has lied in his affidavit and in his financial disclosure about it. [ 13 ] The Respondent disputes the Applicant’s version. He says he has followed the Parenting order, and has attended mediation on multiple occasions to try to work out differences. He says he consulted the Applicant about daycare and about enrolling S. at St. A. school.

He says he wishes to pick up S. from school more often and have greater time with him but he says the Applicant is resistant. [ 14 ] He denies controlling the Applicant and got her to concede that he consulted her regarding daycare, schooling, and health concerns (though she describes his involvement as `dictating’ rather than `consulting’). [ 15 ] The Respondent maintains that he did not act as a father to A. and E. and was careful not to do so.

He says he helped the Applicant out with their care, he babysat and took them to activities at the Applicant’s request, and signed school documents as their father when she asked him to.

In cross examination he acknowledged that after S.’s birth he agreed to having them call him Daddy, to normalize the family environment; this was contrary to what he had maintained in his sworn affidavit evidence. [ 16 ] The Respondent maintains that the natural father of A. and E. remains in their lives; the Applicant denies that. [ 17 ] The Respondent maintains his income decreased in 2009 to some $11,000 as a result of the economic downturn. He acknowledges income of $51,237 in 2008, $11,000 in 2009 and $46,500 in 2010.

He claims he is heavily in debt, having lived off credit cards in 2009, and faces major repair costs for his truck, which is the source of his employment and income. [ 18 ] With respect to 2010, the Applicant points out that, in a sworn affidavit the Respondent stated his income for 2008 was only $25,000; yet he now disclosed it was $51,237. She says his assertions respecting his income are untrustworthy. FINDINGS

Parenting S. [ 19 ] I am satisfied that both parents are loving parents to S. and are suitable as parents. They each have his best interests at heart. The problem is with the parties’ inability to be flexible and to compromise. Each, it seems to me, wants control of S., and neither is willing to make much of a concession to the other. [ 20 ] It is to be remembered that the parties consented to the January 2009 Final Parenting order.

I am inclined towards leaving it wholly intact; however I recognize that it contemplated daycare only and since that time S. has grown older and is in school, which may be considered to be a material change in circumstances. [ 21 ] S. is in a stable school and daycare environment at St. A. school, and has established friendships and relationships there, which is particularly important when his parents are separated. The Applicant’s extra parking costs argument is a very weak and self centred one. S. shall remain at St.

A. school unless the parties agree otherwise. [ 22 ] The best interests of the child are usually best met when exposure to each parent is maximized. The Respondent seeks equal parenting time with the Applicant. That, however would be a significant departure from the status quo established by Consent Order and would cause a disruption to the child. [ 23 ] Some adjustment to the parenting

schedule is warranted to achieve the goal of the child’s best interest, and to permit the parents to have some of their parenting time on week days and some on weekends. [ 24 ] The parenting

schedule going forward shall see S. spending 10 days and nights out of 30 with the Respondent and the other 20 days and nights with the Applicant. If the parties cannot agree on a schedule, the Court will consider their proposals and decide. Where possible, transfers should be accomplished by drop offs and pick ups at St. A. school. [ 25 ] The parents shall have joint custody of S., such that they shall each have input into important education, childcare, health and recreation decisions respecting S. There is no basis for the Court to award sole decision making to either party.

While this has caused problems for the parties in the past, those problems are not properly resolved by excluding one party from decision making. Child Support [ 26 ] The first step is to determine the parties’ incomes. There is no issue with respect to the Applicant. Her 2010 income as $62,652 and that is fairly representative of her earnings history. I set her 2011 income at that amount. [ 27 ] The respondent has been less than forthright in his affidavit evidence as to his earnings history, which leads the Court to doubt the veracity of his evidence regarding his 2009 income. His 2008 income was $51,231.

His 2010 income was $46,500. I find that his 2009 income is best estimated at $40,000. I accept his 2008 and 2010 income figures. I set his 2011 income at $46,500. [ 28 ] The Applicant seeks retroactive child support for S. By agreement, the Respondent has paid child support in the nature of daycare expenses since the 2009 Consent Order. While the amount paid may differ from the Child Support Guidelines, I am not prepared to order retroactive child support payments regarding S.

Child support herein ordered shall be payable on a go forward basis. [ 29 ] Before determining the quantum of `go forward’ child support, I must decide whether the Respondent stands in the place of a parent to A. and E. Section 2(2) of the Divorce Act provides: For the purposes of the definition “child of the marriage” in subsection (1) a child of two spouses or former spouses includes:

(

b) any child of whom one is the parent and for whom the other stands in the place of a parent. [30] The guiding principles in this area are set out in the decision of the Supreme Court of Canada, in Chartier v. Chartier, (SCC), [1999] 1 SCR 242. The court held that a person cannot unilaterally withdraw from a relationship in which he or shestands in the place of a parent. The court must look objectively at the nature of the relationship to determine if a person in face does standin the place of a parent to a child or children. This determination involves looking at a number of factors, including intention.

Intentionmay be inferred by the Court. The actual fact of forming a new family is a key factor. Other factors can be such things as whether thechild participates in the extended family; whether the person provides financially for the child; whether the person disciplines the child;whether the person holds himself or herself out as parent to the child; and the nature and existence of the child’s relationship with theabsent biological father. Every case must be determined on its own facts and evidence. [31] Here, the Respondent lived with the Applicant and her two children.

Upon the birth of S., the two parties decided theApplicant’s children should call the Respondent Daddy, to normalize the family. The father did fill out forms for the Applicant’schildren’s school as if he was their father. He cared for them from time to time in the mother’s absence and drove them to recreationalactivities. There is no evidence before me as to whether he ever disciplined the Applicant’s children, or indeed whether she allowed himor asked him to do so. There is no evidence as to whether he financially supported the children.

The Respondent maintains that thebiological father is in touch with the children, giving hearsay evidence that he spoke with the biological father who confirmed this. Theapplicant maintains she has no contact with the biological father and denies any knowledge that the children are in contact with him. Itappears that the biological father was not in contact with the children during the currency of cohabitation between the Applicant and theRespondent.

The biological father has been paying the Applicant $360 per month in child support for the two children and did so duringthe period of cohabitation between the Applicant and Respondent. [32] I am of the opinion that the Respondent stood in the place of a parent to A. and E., during the period that he and the Applicantresided together as husband and wife. He acted as father to A. and E., who called him Daddy. The lived together as a family for 4 1/2years, without contact or involvement of the biological father, during that relevant period of time.

The common intention was that theparties and the three children be a family unit. While the Respondent attempted in his affidavit evidence to deny that he was called“Daddy” by them, he acknowledged in viva voce evidence that they did so, from the time of S.’s birth. [33] Chartier v.

Chartier makes it clear that the Respondent cannot renounce that relationship upon separation from theApplication, and that the relevant period is the currency of the marriage, not events which have later transpired, such as the alleged recentinvolvement of A. and E.’s natural father with A. and E. [34] What then, is the quantum of child support to be paid, going forward? I have set the Respondent’s 2011 income at $46,500and the Applicant’s 2011 income at $62,652. I have set the Respondent’s parenting time with S. at 1/3 of the time.

He has no parentingtime with A. or E. who are in the care of the Applicant. [35] Pursuant to the Child Support Guidelines, the Respondent would be required to pay s. 3 child support for 3 children, at theincome set out above, of $889.00 per month. Because the Applicant receives, or is entitled to receive $360.00 per month from thebiological father of A. and E., I reduce the Respondent’s obligation to the Applicant by that amount, resulting in s. 3 child supportobligations of the Respondent of $579.00 per month for the 3 children.

Because A. is now 19 years of age and able to work part time, Iapply s. 3(2) of the Child Support Guidelines and reduce the Respondent’s obligations by a further $150.00 per month, resulting in s. 3child support obligations of the Respondent of $379.00 per month. [36]

Section 7 expenses being incurred at present are S.’s daycare expenses. They shall be split, according to the Guidelines, 58%to be borne by the Applicant, and 42% by the Respondent. Any other s. 7 expenses must be agreed upon in advance by the parties orordered by the Court where agreement cannot be reached. [37] The parties are to agree upon a parenting

schedule whereby the Applicant has S. for 20 days and nights out of 30 and theRespondent has S. for the remaining 10 nights out of every thirty. Each party should have some weekday access and some weekendaccess included in the

schedule if the parties agree they are to provide the agreed

schedule to me. If the parties cannot agree on theschedule, each of them is to provide their proposed

schedule to me within 30 days of these reasons and I will direct a parenting schedule.The parenting

schedule will be incorporated into the Order. The Applicant will remain the primary care giver to S.

[ 38 ] There shall be a maintenance enforcement clause, a clause obligating the parties to provide financial information, and a police enforcement clause regarding access rights. [ 39 ] There has been mixed success in this Application. However the Respondent’s affidavit evidence was found to be misleading or inaccurate. Neither party was represented by counsel. The Respondent shall pay costs of this Application to the Applicant, in the amount of $750.00. [ 40 ] The Applicant is to prepare the Order and submit it to the Respondent for his approval as to content and for his signature and then to me.

If such approval is not forthcoming the draft Order is to be submitted to me by the Applicant in writing on notice to the Respondent, so that he can provide his argument to me in writing respecting the wording of the Order. See Rule 9.2 of the Rules of Court . Heard on the 10 th day of November, 2011. Dated at the City of Calgary, Alberta this 2nd day of December, 2011. R. J. Hall J.C.Q.B.A. Appearances: Q. A. Self-represented, Applicant A. G. Self-represented, Respondent _______________________________________________________ Corrigendum of the Memorandum of Decision

of The Honourable Mr. Justice R. J. Hall _______________________________________________________ Please replace the front page as the Citation line should read: QA v. SG, 2011 ABQB 747