Gray v. Metcalf, 2011 ABQB 773

Court of Queen ’ s Bench of Alberta Citation: Gray v. Metcalf, 2011 ABQB 773 Date: 20111207 Docket: FL04 01218 Registry: Grande Prairie Between: Joseph Gray Applicant - and - Amber Metcalf Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Gray asks for a reduction in child support to compensate for the high access costs, which he estimates at a cost of $1,000.00 per access visit, he must incur as a result of Ms. Metcalf ’ s non-consensual move - with the young children of the relationship - from Cold Lake to Grande Prairie. In addition, he asks for a 10 day block of parenting time visit in December. [ 2 ] The application for a reduction of child support is denied: Mr. Gray has not brought himself within the hardship framework of the Federal Child Support Guidelines.

However, as a condition of having removed herself from the family residence, Ms. Metcalf will be responsible for all access costs and transportation until further order of the court.

[ 3 ] The application for a 10 day parenting period in December is allowed: there is no contra-indication either with respect to the best interests of the children nor with respect of the ability of the father to provide adequate parenting during that period. It is important for young children to have regular contact with each of their parents and the children ’ s best interests requires them to have an opportunity to ensure that their bonding with their father is not imperilled by the mother ’ s move. Cases and authority cited [ 4 ] By Mr.

Gray: D.A.S. v P.A.G. 2004 ABQB 138 ; [ 5 ] By the court: Greene v Greene 2010 BCCA 595 ; J.G. McLeod & A.A. Mamo, Annual Review of Family Law, 2010 Ann. Rev. Fam. L. 2 at 24, 81; Ruel v Ruel 2006 ABCA 170 1. Background [ 6 ] The parties are the parents of two young children, a 3 year old and a 2 year old; Ms. Metcalf is pregnant with the couple ’ s third child. Ms. Metcalf has a 12 year old child from a previous relationship.

At the end of September, 2011, without the consent of the father, the mother moved from Cold Lake, where the couple and the family had been living, to Grande Prairie, where the mother ’ s parents live and where she believes she will receive support. Since then, the father has had one access visit with his children. [ 7 ] Ms. Metcalf is currently on maternity leave from her employment as a 911 dispatcher. She earns approximately $24,000.00 gross annually while on maternity leave; her income when not on maternity leave has been approximately $30,000.00 gross annually. It is Ms.

Metcalf ’ s intention to leave her current position when her maternity leave expires. [ 8 ] Mr. Gray is an ambulance technician and volunteer fire-fighter; he earns approximately $77,000.00 gross annually; his child support obligation is, on a pre-disclosure basis, calculated according to that income. He generally works a 24 hours on, 24 hours off, 24 hours on, 24 hours off, then 4 days off, shift. [ 9 ] It is approximately a 1400 km round trip by road from Cold Lake to Grande Prairie; there is no direct air transportation. Mr.

Gray has no family or friends in the Grande Prairie area, so, if he is to exercise parenting time in Grande Prairie, he estimates that it will cost him $1,000.00 per access visit. Also, given the fact that he would be working a 24 hour shift immediately after an access visit, it seems likely that he would have to have a shortened 4 th day access period. [ 10 ] The parties are arranging a special chambers application to deal with the various issues they currently face; they expect that such a hearing can be arranged for February, 2012.

On this application, the father has not filed a hardship claim pursuant to s. 10(2)(

b) of the Federal Child Support Guidelines. 2. Access costs [ 11 ] The father relies on Lee J. ’ s decision in D.A.S. as support for his position that the child support payable by him can be reduced to compensate for his high access costs. I agree with the mother ’ s position that the B.C. Court of Appeal decision in Greene at the very least suggests that even “ unusually high ” access costs do not constitute a permissible basis for deviating from the table amount unless the requirements of s. 10 of the Federal Child Support Guidelines are met.

However, that court went on to say that attribution of access costs might be justified on some other basis, and, in that context, noted the potential importance of mobility orders. Indeed, that view of the current legal and jurisprudential framework has been outlined by the authors of the Annual Review of Family Law cited above. Our own Court of Appeal, in Ruel indicated that there may be a residual discretion in a court to require a custodial parent to

assume a portion of the access burden even where the non-custodial parent has not satisfied the Guidelines ’ test for hardship; I observe that here, the court has yet to decide on a parenting regime. In the result, for the purposes of this application, I accept the analysis made in Greene . [ 12 ] In the situation here, a decision on the merits, at least on an interlocutory basis, with respect to what parenting regime will be in the best interests of the children remains to be made; that is one of the matters that will be dealt with by the court at the special chambers hearing in February, 2012.

In the meantime, the facts known to the court are that the mother, without the father ’ s consent, removed the children from the area where the family had been living to a location which makes ongoing access difficult and costly. Therefore, until the special chambers assessment can be made as to whether this change of location is in the children ’ s best interests, the mother will be responsible for providing the transportation required to give the father access to his children.

She does not need, of course, to drive the children to Cold Lake herself, especially given her condition, but she is required to arrange for someone to bring the children to the father for access visits. 3. Access for the period December 10 - December 20, 2011 [ 13 ] The father has been able to arrange his

schedule so that, for the period from December 10 to December 20, he will only be required to work for 2 days. He therefore asks for parenting time during that period. The mother argues that this is too long a period for the children to be out of her care. [ 14 ] There is no information before the court on this application to the effect that these children have any special needs. Moreover, these children are old enough to know their father and they will be going back for the parenting period to the environment in which they have spent their whole lives prior to their removal to Grande Prairie.

The father holds down a responsible position; there is no reason to believe that he is not able to parent his children for a 10 day period. [ 15 ] In

summary, on the basis of the information available at this hearing, it is in the children ’ s best interests to have the opportunity of a longer parenting period with their father. 4. Costs [ 16 ] 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 28 th day of November, 2011. Dated at the City of Grande Prairie, Alberta this 7 th day of December, 2011. J.B. Veit J.C.Q.B.A. Appearances:

Wayne C. Ayling, Wayne Ayling Law Office, for Mr. Gray Jocelyn E. Innes Innes Law for Ms. Metcalf