J.P.R. v. J.K.R., 2011 ABQB 795

Court of Queen ’ s Bench of Alberta Citation: J.P.R. v. J.K.R., 2011 ABQB 795 Date: 20111216 Docket: 4803 149453 Registry: Edmonton Between: J. P. R. Plaintiff - and - J. K. R. Defendant Corrected judgment: A corrigendum was issued on January 18, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. 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 D.L.

Shelley _______________________________________________________ Background [ 1 ] The parties married in September 2005 and separated in December 2008, contemporaneously with Mr. R. being arrested for assaulting Ms. R. (now known as Ms. L.). Mr. R. pled guilty to the assault charge and moved to British Columbia. Between December 2008 and Mr. R.’s return to Alberta in January 2010, he had no contact with the parties’ two children. On his return, Ms. L. allowed Mr. R. access to the children.

[ 2 ] The divorce judgment of March 1, 2010, granted sole custody and primary residential care of the two children to Ms. L. Mr. R. received reasonable access. At the same time, the Court imputed $90,000.00 a year as Mr. R.’s guideline income and determined Ms. L.’s income at $25,000.00. Mr. R.’s child support obligation was determined on that basis. [ 3 ] In April 2010, Mr. R. refused to return the children after an agreed upon access period. On April 19 th Ms. L. obtained an ex parte order for return of the children. [ 4 ] In May 2010, Children and Family Services (CFS) intervened because of reports that Ms.

L.’s live-in boyfriend was violent toward her and the children. Mr. R. applied for a variation order. An interim order gave the parties joint custody. [ 5 ] On March 10, 2011, following Mr. R.’s application for a stay of enforcement on his child support arrears, an interim stay was ordered pending an application then scheduled for May 2. That application was adjourned sine die . Then, on July 11, 2011, Mr. R. applied for an order varying custody and access and increasing his parental decision making rights.

That application was adjourned to a Special Chambers application to be heard on October 11. [ 6 ] Subsequently, Mr. R. applied for a custody assessment and an order for interim custody of the children pending the October Special Chambers date. Mr. R. then filed a second affidavit in support of the application in which he asked the Court to vary child support and the outstanding child support arrears. That application was scheduled for August 2 and then adjourned sine die . [ 7 ] On August 2 nd , Mr. R. applied for an order directing the children attend schools chosen by him.

That application was granted on August 9 th . On August 11 th , Mr. R. applied for an order varying child support and the outstanding arrears. That application was adjourned in morning Chambers to the already scheduled Special Chambers date of October 11 th . At the same time, the Chambers Justice prohibited Mr. R. from bringing any further applications until the Special Chambers application was concluded. Nature of the Applications [ 8 ] The applications brought by Mr. R. have resulted in the filing of numerous affidavits by him, which have been responded to by Ms. L.

Not surprisingly, the parties have very different positions in relation to various allegations. As a result, the Special Chambers applications were scheduled to include viva voce evidence so that the respective credibility of the parties could be tested. [ 9 ] At the commencement of the application, Mr. R. indicated his desire to have various witnesses testify on his behalf. Neither Ms. L. nor the Court had been advised of this desire, nor had sufficient time been booked for extensive viva voce evidence. Mr. R. was advised that he would be given approximately half of the allotted time to present his evidence.

If he wished to have evidence given by other witnesses he would be at liberty to do so, provided the cross-examination of him had been completed and time permitted. [ 10 ] Although Mr. R. felt that there would be sufficient time to hear from three additional witnesses (his mother, his father, and his new partner) time did not permit me to hear from anyone other than him and his mother (Ms. H.). However, based on Mr. R.’s advice regarding his reason for wanting them to testify, it was expected that the additional witnesses would provide evidence similar to that of Mr. R. and Ms. H.

I am satisfied that the evidence provided at the applications, including that of Mr. R. and Ms. H., was sufficient to permit me to determine the issues before me. Issues

[ 11 ] The issues before me are: 1. Ought there to be a variation of the existing custody and parenting arrangements, including changes to decision making rights? 2. Ought there to be a variation of child support? 3. Ought there to be a variation of child support arrears owed by Mr. R.? The Positions of the Parties Mr. R.’s Position [ 12 ] Mr. R. makes numerous allegations against Ms. L. His concerns can be grouped into five general complaints: 1. He is concerned about Ms. L.’s current boyfriend, Mr. G. Mr. G. was charged following an incident involving Ms. L. in March 2010.

As a result, a supervision order was obtained through CFS, prohibiting the children from having direct or indirect contact with Mr. G. Mr. R. is concerned because it appears that Ms. L. is continuing her relationship with Mr. G. and CFS has taken no action. In addition, Mr. R. alleges that Mr. G. has threatened him several times. 2. Mr. R. has general concerns about Ms. L.’s parenting ability. He alleges: that the children do not sleep properly at her home; that their son suffers breakouts of eczema when he is at Ms.

L.’s residence (which he attributes to the stress of being there); that on at least one occasion Ms. L. left their children with her eleven year old son from a previous relationship until 2:00 in the morning; and that Ms. L. does not let the children go to the bathroom at night. 3. Mr. R. alleges that the children suffer physical abuse at Ms. L.’s home. He details incidents where the children have either a cut or a bruise when he goes to pick them up. Mr. R. has provided pictures of some of the injuries he attributes to Ms. L.’s abuse or neglect. Mr. R. also alleges that Ms. L. and Mr.

G. spank or otherwise hit the children. He further alleges that Ms. L.’s elder son cut Mr. R.’s son with a knife on one occasion. 4. Mr. R. alleges that Ms. L. has been attempting to alienate their children from him. Their daughter has called him a “fat pig” and Mr. R. asserts that their daughter learned this by hearing her mother refer to him as such. Their daughter has also started saying “you’re bad, you’re bum” when she does not get her way and that similar words have been used to describe Mr. R.’s new spouse. Mr. R. also believes that Ms.

L. is attempting to discourage their son from playing hockey, although Mr. R. believes their son enjoys doing so. 5. The most serious of the allegations made by Mr. R. are that both Ms. L. and her elder son have sexually abused the parties’ two children. Mr. R. asserts that the children have told him that they were touched or hit in inappropriate areas. Mr. R.’s evidence concerning sexual abuse of their son relates to an occasion on which his son’s penis was bruised. Ms. H. also testified to this alleged abuse. She indicated that, after Ms. L. “had Mr.

R. removed from the house” she had observed her granddaughter (then 2) referring to a doll’s body parts after she observed her removing the underwear from the doll and that approximately one and a half years ago her grandson told her that his step-brother had rubbed his penis. In addition, she had noted a rash on her grandchild’s bottom. [ 13 ] Ms. H. further testified that, after Mr. R. left for British Columbia, Ms. L. had been very good about letting her see her grandchildren. She had no problem visiting with her grandchildren until Mr. G. became more involved in Ms. L.’s life. When Mr.

R. returned to Alberta, they soon spent their visits with him in her home, where Mr. R. and his new spouse reside. She is of the view that the children have a routine at her home and are engaged in positive activities there. She asserts that Ms. L. doesn’t put the children to bed on time, although she admits that she doesn’t know what time they do go to bed there. She believes that Ms. L., Mr. G. and Ms. L.’s eldest son are punishing her grandson because she has seen little bruises on him. On cross-examination she conceded that the bruising

might be consistent with play injuries. Although Mr. R. was working up north until shortly before the application, Ms. H. maintained that the children spent a lot of time with him at her house. Mr. R. has done work for her husband and has worked nights so that he can spend time with the children during the day. She confirmed that Mr. R. is paying for some food while he, his wife and his children are in her home, although Mr. R. is no longer paying anything toward shelter expenses. [ 14 ] Ms. H. testified that she has observed Ms. L. screaming at the children and recounted one incident where Ms.

L. got angry over some wet boots. She maintains that Ms. L. is volatile, although she concedes that she has always acted controlled in Ms. H.’s presence. However, she maintains that there are angry outbursts between Mr. R. and Ms. L. Ms. H. believes that the children are getting conditioned to the point where they don’t really know what to say in their respective parents’ homes. [ 15 ] Ms. H. attempted to report her concerns about abuse of her grandchildren to CFS but they told her it was none of her business. She later reported her concerns to the police. [ 16 ] Mr.

R. has also attempted to raise his concerns on numerous occasions with various authorities. He confirmed that he has spoken to “lots of professionals”, including CFS, the children’s physician, the play therapist he had see his children, the RCMP, and the Zebra unit. He confirms the children have been interviewed numerous times by or at the direction of CFS.

He disagrees with the recommendations of the children’s therapist, maintains that he has received “mixed stories” from the play therapist, and admits that his son’s doctor does not attribute the eczema to stress (but maintains that two other physicians that he spoke to told him that it could be stress related). He felt that a mediated agreement was forced on him by Child Protective Services, who said it was in the children’s best interests.

He is of the view that there is no point in obtaining information from CFS because they told him they were “100% sure” these things (ie. the abuse allegations) weren’t happening, the last time they hung up on him, and they have closed their file. He confirmed that the only place he hasn’t sought assistance is from the media, and that it has crossed his mind that the only “rational thing” may be to take the children and run off with them. [ 17 ] Mr. R. has requested a reduction in his child support and child support arrears. Part of the basis for this request is his current employment situation. Mr.

R. is not currently employed. He testified that the number one reason is a personal reason - namely, that he has trouble focussing on anything except his children. He maintains that the parenting issues must be taken care of before he can move on. He admits that he stopped paying any child support to Ms. L. some time ago but maintains that this doesn’t mean he doesn’t have money to support the children. Instead, he indicates that he can provide support to them through his savings and financial support from his parents. [ 18 ] Mr.

R. was originally ordered to pay $1,290 per month in child support, based on an income of $90,000. He maintains that his income has been reduced from $90,000 and that last year it was $34,000. He believes $34,000 should be used as his income, while Ms. L.’s should be increased to $40,000. He believes that extraordinary expenses must be adjusted to reflect that the children are no longer in daycare and to compensate him for s.7 expenses he has incurred. In addition, Mr. R. maintains that Ms. L. received a $9,000 payment toward the arrears in 2010.

He maintains that has not been reflected in the outstanding arrears at MEP. [ 19 ] Mr. R. proposes that the children reside primarily with him and that Ms. L.’s parenting time be suspended until she admits her abuse of the children, at which time he proposes that she could begin supervised visits. [ 20 ] Mr. R. believes that it is his right as a father to know who his children are with and what they are doing whenever they are not with him. He also believes that no one is going to help his children except him. He asserts that he has attempted to work with Ms.

L. from the beginning but that she doesn’t respond to him. Ms. L.’s Position [ 21 ] Ms. L. submits that the interim joint custody arrangement has benefited the children and should continue. [ 22 ] She denies most of the allegations made by Mr. R. She admits that she continues her relationship with Mr. G. but asserts that she ensures that he does not have contact with the children. She claims that she had reported Mr. G. to the police to exact revenge on him but that her allegations were not true. Because of the allegations that Mr. G. had been violent toward her in front of the children, CFS

became involved. She maintains that since that incident there have been no further instances of violence. She confirms that Mr. G. has confronted Mr. R. on occasion but denies that he has threatened him or that the confrontations occurred in the manner described by Mr. R. [ 23 ] Ms.

L. admits that she left the two youngest children with her eldest son while she went out, but maintains that it was only for one hour, the children were already asleep and that she was home just after 10:00 p.m. [ 24 ] She maintains that she has taken their son to a dermatologist for allergy testing and treatment of his skin condition, which he has had since he was year old. There has been nothing to suggest that he suffers breakouts from stress. [ 25 ] Ms. L. denies that she has ever not permitted the children to go to the bathroom. [ 26 ] Ms. L. provided explanations for the minor injuries raised by Mr. R.

She maintains that these are scrapes and bruises that kids get while playing or in the normal course of living. For example, in response to Mr. R.’s allegation that her eldest son cut their son with a knife, she maintains that her youngest son fell on a Nerf gun. In relation to the sore that their daughter had on the back of her heel on one occasion, she asserts that these were the result of rubbing and blistering caused by new shoes. She denies that she, Mr. G. or her eldest son have ever spanked or hit the children as alleged by Mr. R.

She attributes the bruise on her son’s penis to him having caught it in his zipper. [ 27 ] In response to the serious allegations of sexual abuse, Ms. L. denies the allegations and points to all of the testing and interviewing that has been done by various authorities (CFS, the RCMP, the Zebra Centre, the play therapists) which all have confirmed that no abuse has taken place. She has provided copies of reports prepared by CFS which confirm those conclusions. [ 28 ] Ms. L. denies calling Mr. R. a “fat pig”.

She maintains that she is equally concerned about their daughter saying things like “you’re bad, you’re bum” to people. She does not know where her daughter learned this and denies ever making such comments in front of her daughter. In relation to her son, she maintains that he regularly tells her that he hates hockey but that she tells him that it is cool to play hockey, and that she has never attempted to convince him not to play hockey, since she likes being a “hockey mom”. [ 29 ] Ms. L. maintains that the children are healthy and happy kids while in her care, involved in lots of activities.

She maintains that the children’s bed time is 8:30 p.m. and that they generally sleep approximately 12 hours. She hasn’t noticed them being tired at her home. [ 30 ] Ms. L. was advised by CFS that Mr. R. has videotaped the children, although she has not seen the video. Ms. L. has the impression that Mr. R. was contacting CFS approximately weekly and that, as a result, the children have been interviewed numerous times. The children have been traumatized by these repeated investigations and for that reason she is opposed to a custody assessment now being conducted.

In that regard, she points to the Confidential Briefing Memorandum prepared by Children and Youth Services, which outlined the history of the file, which included nine screenings, three initial assessments, two Safety Phase Assessments, two Detailed Phase Assessments, one Ongoing Case Assessment and one expired six month Supervision Order. The correspondence also confirmed that “none of the several allegations against Ms. L. and / or her son have been substantiated”.

Further, it confirms that the sexual abuse allegations had been investigated by Edmonton and Area Child and Family Services Authority, the RCMP, and a play therapist appointed by the Department, and all were found to be unsubstantiated. The letter also confirmed that, as of May 16, 2011, Child and Family Services Authority had no concerns regarding the care that Ms. L. provides to her children. It further confirmed that the child therapist had expressed concerns to CFS that Mr. R. had been “badgering” the children to disclose abuse and maltreatment by Ms. L. and that this was traumatizing the children.

The therapist recommended that, unless new information came forward, no further interviews should be conducted. [ 31 ] Ms. L. alleges that Mr. R. is deliberately underemployed in order to avoid paying child support. She maintains that the income of $90,000 which has been imputed to him by this Court is appropriate, given his thirteen years experience as a journeyman scaffolder. In 2008, their last year together, Mr. R. earned $103,302. [ 32 ] Ms. L. was unemployed from January 1, 2011 to May 28, 2011.

She confirms that she now makes $43,000 per year but expects that, because of her period of unemployment, her 2011 earnings will be $33,000. She earned $3,100 in 2008, $41,622 in 2009 and $41,190 in 2010.

[ 33 ] Ms. L. acknowledges that the children are no longer in daycare; but she still has to pay $1,300 for daycare because she could not give adequate notice when Mr. R. insisted they be removed from daycare and be babysat by his family instead. She therefore believes Mr. R. should pay his proportionate share of that amount. In response to some of the s.7 expenses claimed by Mr. R., she points out that she too paid school expenses and clothing and maintains that these are not extraordinary expenses.

She also maintains that, in relation to the claim for a swimming program, she has been provided with no evidence that the children have been registered in or attended one. [ 34 ] Ms. L. provides statements from MEP indicating total arrears owed of $38,226.65 as of September 12, 2011. She maintains that the statements include the money that Mr. R. alleges he paid to her, with the exception of one direct payment of $200. [ 35 ] Notwithstanding the difficulties she has encountered dealing with Mr. R., Ms.

L. believes it is important for the children to have a relationship with both of their parents and she is supportive of continuing the joint custody, shared parenting arrangement that was put in place on an interim basis. Analysis and Conclusions [ 36 ] Mr. R. obtained a variation of the original custody and parenting arrangements largely as a result of his numerous unsubstantiated allegations against Ms. L. Although those allegations have been extensively and repeatedly investigated by the proper authorities, including CFS, the RCMP, the Zebra Centre and play therapists, Mr.

R. continues to make those allegations. Nothing in the evidence of Mr. R. or Ms. H. have persuaded me that I ought to disregard the conclusions reached by several well qualified, independent bodies who routinely investigate allegations of sexual and other abuse against children and who conducted numerous and extensive investigations in this case. Similarly, given the magnitude of the investigations conducted by these various authorities since May of 2010, I see no justification for ordering a bilateral custody assessment at this time.

The estimated $20,000 to $25,000 cost of such an unnecessary further assessment would be better spent by Mr. R. toward paying his child support arrears and the cost of counselling which is so obviously needed in this case. [ 37 ] Many of the photographs submitted by Mr. R. are pictures of their son’s eczema. Their son’s doctor does not attribute this condition to anything being done or not done in Ms. L.’s residence. Mr. R.’s hearsay evidence, that he spoke to two other unidentified doctors who said it might be due to stress, cannot be given any weight.

In any event, I would be surprised if these children were not under considerable stress given the circumstances they find themselves in. Mr. R.’s actions no doubt play a significant role in creating that stress. Other photos, particularly the photos of their daughter’s heel, are consistent with the explanations provided by Ms. L. and in any event the corresponding allegations have been thoroughly investigated by the proper authorities. [ 38 ] Were it not for Ms.

L.’s willingness to maintain the interim custody and parenting arrangements, I would be prepared to restore the original custody and parenting regime established by Justice Nielsen in his March 1, 2010 Order. However, in light of Ms. L.’s advice that she believes the shared parenting arrangement has been beneficial to the children, I will not restore sole custody and primary care to Ms. L. at this time. [ 39 ] However, as has been observed by the play therapist and recorded in the records of CFS, Mr. R.’s conduct (including repeatedly making allegations against Ms.

L. which prove to be unsubstantiated) has resulted in investigations that have traumatized all of the children involved. Mr. R.’s observed actions toward Ms. L. at the time of the exchanges has no doubt also traumatized the children and undoubtedly accounts for much of their behaviour surrounding those exchanges. In addition, Mr. R.’s decision to make videotapes of his children and to repeatedly take pictures of every mark he sees on them must further add to their distress. Ongoing behaviour of this type may well result in a significant curtailment, even a termination, of Mr.

R.’s parenting time in the future. [ 40 ] It is clear that there is a problem in communication between these parties. I am satisfied that much of the blame can be laid at the feet of Mr. R., whose actions in dealing with Ms. L. and the various authorities can most charitably be described as highly confrontational. Mr. R.’s demeanor in court was similarly confrontational, aggressive and threatening. It was especially disturbing to hear Mr. R. suggest that he considers abducting the children to be a potential remedy.

Similarly, it is highly contradictory for him to on the one hand profess his great love and concern for his children, while considering it appropriate not to support them following

separation and to then become unemployed so as to not be in a position to provide them with a home or the other necessities of life without the assistance of his family. [ 41 ] It is telling that, after Mr. R. left for British Columbia, a time period during which he was so concerned about his children’s welfare that he apparently neither contacted them or provided support to them for over a year, Ms. L. was able to maintain the children’s relationship with Ms. H. The apparent cooperation between them continued through Mr. R.’s absence and was only interrupted following his return. Although Mr. R. and Ms.

H. attribute this to Mr. G., it is clear that a considerable amount of the responsibility is the result of Mr. R.’s actions. In that regard, the report from CFS contains a comment that Mr. R. appears to provoke Ms. L. and creates tension through his demeanor when exchanging the children. Given his conduct in the courtroom, I have no difficulty accepting the accuracy of that comment. [ 42 ] Given the foregoing, I have concluded that it is not in the best interests of the children that decision making be shared by their parents. Clearly the current tension between them, including a history of violence by Mr.

R. against Ms. L., will prevent effective co- parenting until the parties receive effective assistance in establishing a positive and cooperative co-parenting arrangement. Therefore, until Mr. R. and Ms. L. have completed both high conflict programs offered by this Court (and, if they have already taken one or both of them, they are directed to take them again), as well as a Practice Note 7 Intervention with Dr. Stephen Carter, Ms. L. will have decision making authority over all decisions (including education), with the exception only of those decisions which must be made while the children are in Mr.

R.’s physical care. Ms. L. may make any childcare arrangements which she desires to put in place during the week that they are in her care. In that regard, Ms. L. is not required to continue the babysitting arrangements that have been recently in place at Mr. R.’s insistance, whereby Mr. R. or his family members babysit the children during the week that they are in Ms. L.’s primary care, unless Ms. L. chooses to continue that arrangement. Ms. L. has the option of arranging alternative care during that time, the costs of which will be borne proportionately by the parties.

It is my intention to impose a parallel parenting regime to minimize any contact between the parties or the need for mutual decision-making until the Practice Note 7 intervention is completed and a parenting plan is developed with the assistance of Dr. Carter. In the meantime, the parties shall parent their children on an alternating week basis, with major decisions to be made by Ms. L. [ 43 ] Mr. R. voluntarily quit a very lucrative position because he said he couldn’t focus on anything else pending resolution of his outstanding child support and parenting applications.

I have considerable difficulty accepting that as his reason, and conclude that there is ample evidence on the record to support Ms. L.’s assertion that he is deliberately underemployed in order to avoid his child support obligations. Long before these proceedings were commenced by Mr. R., he had displayed a disinclination to provide support to his children. In addition, we know that he has been working for Ms. H.’s husband and that he has been receiving accommodation and other benefits from them. I am not satisfied that his tax returns will disclose accurately his income from all sources for guideline purposes.

Accordingly, Mr. R.’s income will continue to be imputed at the $90,000 that was imputed to him in the March 2010 Divorce Judgment. In the result, there will be no variation of Mr. R.’s s.3 child support obligation as requested by him. [ 44 ] Ms. L.’s income for the purposes of calculating her child support obligations shall be determined in accordance with her filed tax returns for the years 2008, 2009 and 2010.

Her 2011 income will be established on the basis of her filed 2011 tax return, following receipt of a Notice of Assessment or Reassessment from Canada Revenue Agency. [ 45 ] The proportionate share of s.7 expenses shall be determined using the incomes established as above. As it appears that the ongoing daycare expense resulted from inadequate notice that arose directly as a result of Mr. R.’s insistence on the children’s removal from daycare, he will bear his share of that expense.

As the application appropriately focussed on the custody and parenting issues, there was no time to get into the specifics of the issues related to s.7 expenses. Certainly some of the expenses claimed by Mr. R. would not be considered s.7 expenses (for example, clothing and certain school expenses). Others may be s.7 expenses but in the absence of proof that they have been incurred, Mr. R. is not entitled to reimbursement.

The parties are directed to provided each other with a detailed list of the disputed s.7 expenses, together with backup documentation confirming payment for those expenses, within 30 days of the date of this Judgment. They are also to provide a brief written

summary of their position in respect of the disputed items and forward all materials to my attention within 45 days of this Judgment so that I may deal further with the outstanding s.7 issues. [ 46 ] Therefore, there will be no variation of Mr. R.’s child support arrears other than: 1. any variations that may be required as a result of Ms. L.’s income, to the extent that her obligation to date has been calculated using incomes that may differ from those disclosed on her tax returns;

2. any adjustments which may be required to s.7 expenses following receipt of the additional materials referred to above; and 3. any variations which may result from Mr. R. producing to Maintenance Enforcement proof that he has paid amounts that are not reflected on their records. [ 47 ] Any other issues which must be clarified or dealt with as a result of this Judgment may be raised by contacting my assistant within 30 days of the issuance of this Judgment to arrange for a time at which those issues can be addressed. Heard on the 11 th day of October, 2011.

Dated at the City of Edmonton, Alberta this 16 th day of December, 2011. D.L. Shelley J.C.Q.B.A. Appearances: Ms. R.M. Weizman for the Plaintiff J. K. R. self-represented Defendant _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice D.L. Shelley _______________________________________________________ The parties’ names have been taken from initials only to full names. The indication of a ban has been removed as no such ban was ordered.