V.S. v. G.S., 2011 ABQB 818

Court of Queen ’ s Bench of Alberta Citation: V.S. v. G.S., 2011 ABQB 818 Date: 20111229 Docket: 4808 011428 Registry: Medicine Hat Between: V.S. Plaintiff - and - G.S. Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W. A. Tilleman _______________________________________________________ Introduction [ 1 ] G.S. and V.S. have been married for 17 years. On March 14, 2011, V.S. filed a Statement of Claim for Divorce and Division of Matrimonial Property. [ 2 ] The parties have two children from their marriage, aged 11 and 7.

The mother, V.S., works as a physician in Medicine Hat and the father, G.S., as a millwright in Suffield, Alberta. [ 3 ] The parties moved to Medicine Hat together from Newfoundland roughly 6 years ago, after V.S. was recruited to the community to practice family medicine. As part of its incentive package the local hospital gave assurances to G.S. that he would be

employed by the City if they agreed to relocate. The parties accepted the offer to move; however, G.S. was not given a job with the City of Medicine Hat, as he had hoped. [ 4 ] The failure by G.S. to get a job in Medicine Hat precipitated tensions between the couple and from that point forward serious problems began to arise. In the final year of their marriage the couple’s relationship was characterized by increasing acrimony and stress, resulting in the failure of their marriage. The couple separated in February, 2011. Background [ 5 ] On May 26, 2011 the parties appeared before Chief Justice Wittmann, who made an interim order without prejudice setting out the following conditions: (

i) The Plaintiff and the Defendant shall have joint custody of the children of the marriage with the children residing on a day to day basis with the Plaintiff. (ii) The Defendant shall [give] reasonable and generous access to the children of the marriage. (iii) The Defendant will pay monthly child support to the Plaintiff for the support of the children of the marriage in the amount of $763.00 commencing June 1, 2011 and continuing on the first day of each and every month thereafter until further order of this Honourable Court. (iv) The Plaintiff will pay monthly spousal support to the Defendant in the amount of $5,263.00 commencing June 1, 2011 and continuing on the first day of each and every month thereafter until further order of this Honourable Court. (

v) Notwithstanding paras 5 and 6 herein, there will be a setoff amount of the child support payable by the Defendant against the Plaintiff’s monthly spousal support obligation resulting in a net monthly spousal support payment by the Plaintiff to the Defendant of $4,500.00.

The support obligation will commence June 1, 2011 and continue on the first day of each and every month thereafter until further order of this Honourable Court. (vi) The Plaintiff will have exclusive possession of the matrimonial home, civically located [in] Medicine Hat, Alberta. (vii) The Defendant will have until June 15, 2011 to obtain alternate accommodations and move from the matrimonial home. [ 6 ] Since that Order the parties have had a joint custodial regime; however, they have not been in agreement on how to properly parent the children.

The current regime is based on primary custody of the children by V.S., with the parties sharing custody of the children every other weekend and one night per week with G.S. [ 7 ] G.S. has stated that he would like to spend more time with the children, but V.S. has not been willing to accommodate this. [ 8 ] Complicating the matter of parenting time further, the parties do not speak with each other to any great extent and when they do (particularly in the case of G.S.), it is often through their eldest son.

I will touch on the dangers of doing this, later. [ 9 ] During the viva voce hearing ordered by the Chief Justice, which I conducted, the parties agreed to the following additional facts:

1. For the first seven (7) years of the oldest child’s life, the Defendant was out of the work force. For the first three and a half (3.5) years of the youngest child’s life, the Defendant was out of the work force. 2. Both parties say they were the primary caregiver of the children during the course of the relationship of the parties. 3. The Plaintiff’s 2010 income was $290,000.00. The Defendant’s 2010 income was $53,000.00. [ 10 ] Both parties also appear to agree that the care and custody of the children is the primary issue of concern presently.

I believe that Chief Justice Wittman’s Order stabilized matters and it is now my task to ensure the children’s best interests continue to be maintained. Issues [ 11 ] Based on the Concise Letters of both parties and their oral submissions before me, the two issues to be determined at present are: 1) custody and access of the children, and 2) spousal support. [ 12 ] In terms of the division of matrimonial property, I note that it was not strongly argued, if at all, during the viva voce hearing (see p. 4, lines 11-22, of the transcript) and will therefore be deferred until trial, as noted below.

Analysis 1) Custody & Access: best interests [ 13 ] Under the Divorce Act , RSC 1985 (2 nd Supp), c 3, s 16(1), this Court may deal with matters corollary to a divorce, including the custody of any children of the marriage.

When making a custody order, the only relevant factor this Court may consider is the best interests of the child, as determined by reference to the child’s condition, means, needs or other circumstances: see s 16(8), Divorce Act . [ 14 ] The challenge in making such a determination is that unlike other matters which require a finding based on things that happened in the past, the best interests of a child must take into account events that will occur in the future that cannot always be foreseen. As noted by the Ontario Court of Justice in Power v.

Power , 2004 ONCJ 281 at para 50 , 11 RFL (6 th ) 373: “Best interests proceedings are paradigmatic examples of prospective litigation. Although an assessment about the future is based on a consideration of what has happened in the past, courts in child-related proceedings are asking the question: What will be in this child's best interests? This is inherently a predictive and uncertain exercise.

The circumstances of a child and parents will inevitably change and a judicial ‘best interests’ decision is always subject to variation to reflect changes in circumstances.” [ 15 ] Accordingly, a custody decision must be child-centred to effectively take into account the evolving needs of children, particularly in light of the significant amount of time a custody arrangement may operate before the parties again appear in court.

[16] The following list, although not a exhaustive, outlines many of the considerations this Court can weigh as part of adetermination of the best interest of a child, Calahoo v. Calahoo, 2000 ABQB 466 at para. 11, citing Starko v. Starko (1990), (AB KB), 106 AR 62, 74 Alta LR (2d) 168 (ABQB): (

i) the provision of the necessaries of life including physical and health care and love; (ii) stability and consistency and an environment that fosters good mental and emotional health; (iii) opportunity to learn good cultural, moral and spiritual values; (iv) the necessity of setting realistic boundaries on conduct and fair and consistent discipline in teaching appropriate behaviour andconduct; (

v) the opportunity to relate to and love and be loved by immediate and extended family and opportunity to form relationships. (vi) opportunity to grow and fulfil his/her potential with responsible guidance; (vii) to have optimal access to the non-custodial parent in order to encourage and foster a good relationship; (viii) to be with the parent best able to fulfil child's needs; (ix) and the provision of an environment that is safe, secure, free of strife and conflict, and positively guides the child in development. [17] In the context of a breakdown in the family unit, it is the responsibility of the Court to minimize, as much as possible, thedisruption to a child’s life.

Referenced by both parties in their written materials, in Roebuck v. Roebuck (1983), 1983 ABCA 156, 45 AR 180 at para. 19, 26 Alta LR (2d) 289 (ABCA), the Alberta Court of Appeal stated that an interim order should notlightly disturb the status quo custody arrangement. The Plaintiff relies on this to argue that the status quo whereby she has primarycustody of the children should therefore be maintained. [18] The Defendant points out however, that the present disposition should be unconcerned with the interim arrangement put inplace by Chief Justice Wittmann, which was made on without prejudice basis.

Instead, the status quo principle should be applied basedon the situation that existed when the children were first born and G.S. was their primary care-giver. G.S. also relies on Richter v.Richter, 2005 ABCA 165, 371 AR 1, in support of this position. [19] I agree with the Defendant that he does not bear the heavy burden of showing that the status quo arrangement is notfunctioning as a prerequisite to being awarded primary custody today.

Maintaining the status quo is only one principle informing theCourt, and an interim custody arrangement must not prejudice the non-custodial parent during a subsequent custody hearing: W(DS) v.W(DL), 2009 ABQB 279 at para 17; Lewis v. Lewis, 2005 NSSC 256 at para. 10, 236 NSR (2d) 245.

The status quo principle simplyrecognizes that in relation to the best interests of a child, certainty and stability is preferable to uncertainty and instability. [20] That noted, if the custodial parent can show they are able to meet the emotional, psychological and intellectual needs of thechild, a court ought not to gamble on changing the situation: JRD v. DMP, (AB KB), 183 AR 313, (sub nomDesilets v. Piwowar) [1996] AJ No 391 (ABQB). Thus, if a child is in a devoted, stable and caring home with one parent, the Courtshould be reluctant to intervene without compelling reason to do so.

[ 21 ] Despite the fact that both of the parties now blames the other to a large extent for the demise of the marriage (and to a certain extent they are both right), going forward it is clear that the two boys need to have as much contact with each parent as possible, particularly in light of the positive impact each of them have had on their children: see Divorce Act , RSC 1985 (2 nd Supp), c 3, s 16(10).

The boys need to be with both their mother and father not simply because of the Divorce Act , but also due to the critical role both parents play in the lives of their children. [ 22 ] To determine what is in the best interests of the children, it must be clear that one custody arrangement benefits the children more than the other. Before deciding this, however, I want to make it clear that regardless of who has the primary custody of the children I am of the view that both parties are good parents .

Looking back at the evidence presented to me, I have reached this conclusion for a number of reasons. [ 23 ] While V.S. has the primary parenting responsibility for the children today, G.S. has been a highly involved father and was the primary caregiver for at least the first 7 years of the elder son’s life, and 3 or more years of the younger son’s life. [ 24 ] When V.S. was in medical school in the early years of the couple’s marriage G.S. did not work and that allowed him to spend a great deal of time with the children and take care of the home (at p. 51, lines 28 - 35, of the August transcript).

He also cooked for the children, fed them and cleaned the house while V.S. was at work (at p. 68, lines 32-38, of the August transcript). While at home G.S. did more than more than ninety percent of all the renovations to their house in Newfoundland. [ 25 ] Although G.S.’s failure to work in the early years of the relationship was beneficial to the family in many ways, it also created a level of resentment between the couple. V.S. resented G.S. because, as she put it, “he got to stay home and enjoy [the] kids while I had to work” (at p. 17, lines 33 -34, of the August transcript).

G.S., on the other hand, resented V.S. because, unlike him, she was gainfully employed with a wonderfully fulfilling career. At the end of the day, both parents began to resent each other’s resentment. [ 26 ] Unfortunately the synergy that allowed the family to grow, develop and become successful with V.S.’s career eventually evolved into antipathy between husband and wife. As a result the marriage ultimately disintegrated. [ 27 ] Today G.S. continues to take good care of the children, notwithstanding his current living arrangements and new job.

He is a good father – a fact which was confirmed by V.S., herself (at p. 50, lines 12-16, of the August transcript). [ 28 ] Accordingly, in the context of the considerations set out by the Court in Calahoo , I believe G.S. has endeavoured to do all the things a good father should do for his children, including providing them with physical necessaries, giving them guidance and fostering a positive and loving relationship. [ 29 ] I also note that G.S. sacrificed his career in favour of his wife’s.

I believe he had a desire to work and was genuinely disappointed when he found out that the City of Medicine Hat would not be offering him the job that he believed was promised to him. Regardless of whether some type of breach of promise took place, this lamentable series of events illustrates just how much G.S. wanted to be employed and the fact that he was not attempting to evade work. [ 30 ] For her part, V.S. also takes very good care of the boys and has always done the things a very good mother would do for her children.

As the primary care-giver of the children presently, V.S. does a very good job of ensuring that the needs of the children are met, including preparing their meals, getting them ready for school and encouraging their participation in extra-curricular activities. V.S. is not only willing but also capable of changing her work

schedule for the benefit of the children, which demonstrates a willingness to put the needs of the children first (at p. 146, lines 23-39, of the August transcript). Thus, I find that V.S. has also satisfied the considerations in Calahoo to the best of her ability. [ 31 ] Apart from both parents’ claim that they have been the primary caregiver to the children, both now have concerns about the habits and

schedule of the other. For example, V.S. at one point asked G.S. to lie regarding her whereabouts, which he did on a matter related to one of her out-of-town trips for work (or pleasure).

[ 32 ] Without commenting on that one time event further, I note that G.S. is concerned with V.S.’s changing work

schedule and out-of-town business trips some distance away; the argument being that he would be more available for the boys. With respect, based on the evidence presented at the hearing I do not find this to be the case, at least not at present. [ 33 ] G.S. currently works approximately forty hours a week, Monday to Friday, 7:30AM to 4:00PM (at p. 79, lines 23-24, of the August transcript).

In his Concise Letter at para. 30, G.S. notes that he has received provisional authorization from his employer to work a thirty-two hour work week, from 9:00AM to 4:00PM, which would allow him to drop the children off at school in the morning and pick them up from after-school care in the evening. [ 34 ] Despite G.S.’s commendable efforts to change his work

schedule for the benefit of his children, I find that V.S. simply has a more flexible schedule. As noted in her Concise Letter, V.S. works as a physician at a private clinic, as well as a palliative care physician for the Local Health Authority, and as such she has a certain amount of flexibility to set her own hours. Specifically, V.S. only works Monday to Friday, does not start work until 9:00AM, and has every Tuesday morning off.

V.S. also finishes work no later than 4:00PM, and leaves earlier on Tuesdays. [ 35 ] In addition to a more flexible schedule, V.S. also works only a few minutes away from the children’s school and home, while G.S. works approximately 30 minutes west of Medicine Hat.

On a day to day basis it is clear that V.S. will be available to the children; the same cannot be said for G.S., even after considering the proposed changes to his work schedule. [ 36 ] Another concern raised by G.S. relates to V.S.’s socializing (dancing and evenings out with friends) (at p. 93, lines 21 -38, of the August transcript), but to date there is nothing that would appear to suggest this has negatively impacted her parenting skills.

I do not accept the assertion that V.S. is any less committed to the children than G.S. [ 37 ] Returning again to the legal principles guiding this Court in determining what type of custody arrangement is in the best interests of the children, I first look to what potential impact a series of changes would have on these two boys.

Encouraging stability in the lives of the children is important, as confirmed by the Court in Roebuck , and protecting the best interests of the children is always the paramount goal. [ 38 ] Accordingly, this Court must determine which custody arrangement will benefit the children most going forward.

The best interests of the children are unconcerned with which custodial arrangement suits each parent; instead the principle is focussed on the situation that best suits the needs of the children. [ 39 ] Currently the children are living with V.S. in the matrimonial home and there is no evidence that they are not leading caring and stable lives there.

Both parties are undoubtedly capable of ensuring that these children thrive, but that is not the issue to be decided. [ 40 ] The stability of the children would be disrupted if they were moved from their current home in Medicine Hat to G.S.’s apartment across town, or if G.S. were given exclusive possession of the matrimonial home, as he has requested.

With both children doing well in their current situation, and in the middle of the school year, it is important to minimize the academic and social disruptions as much as possible and doing this requires them to stay in their present situation. [ 41 ] I would also note again that V.S. will be more available to the children because of her enviably flexible work

schedule and for that reason she is in a better position to meet the needs of the children going forward. [ 42 ] I am further satisfied that both boys will continue to have stability and consistency by living in their current home, and therefore I see no reason to change the custody arrangement in principle, even though I recognize this is particularly upsetting to G.S. [ 43 ] On this point, I note that the current custody arrangement is subject, as always, to evidence of a material change which may necessitate a variation in my Order. If the situation discussed above becomes different, nothing prevents either party from seeking a review of my Order.

[ 44 ] Returning now to the issue of the poor communication between the parties, it is essential for the continued functioning of the parenting arrangement in place that both parties endeavour to work together. The challenge in doing this at present is that V.S. and G.S. are not communicating openly and productively with each other. [ 45 ] The courts cannot force parents to co-operate or focus on their parenting style on “we” rather than “me”.

To develop healthy relationships with their two children, both parties should at minimum neutralize their bitterness over their separation and work to develop a positive parenting dialogue. [ 46 ] On this point I want to be extremely clear – using either of the boys to communicate with or check up on the other spouse is harmful because, amongst other things, it interferes with several important relationships, including: (1) each child’s relationship with their sibling, and (2) each child’s relationship with their parents.

Beguiling a child into this booby-trap is inconsistent with the children’s best interests to such an extent that it raises a presumption that the implicated parent should have parenting time reduced or custody changed. Such an approach by the Court is based on the linkage between the best interest test and the emotional and psychological health of the child. It is not emotionally healthy when a child is caught in between bickering parents (see example at p. 30, line 41, and p. 31, lines 1-3, September transcript).

Parents that do this are not acting in their child’s best interests. [ 47 ] Like most children, these boys want to please their parents and unless the court acts they could easily become involved in an adult conflict without the maturity to understand how to deal with it. This would not be an acceptable situation and both parties should be wiser in virtue for their children’s health and development.

For parents to be focussed on their breakup is one thing; to involve a child in it – subtle as it may be – is another thing and it is wrong. [ 48 ] While this warning may be aimed more at G.S., neither parent should be communicating with the other through the children, nor should they criticize the other in the presence of their children (see p. 27, lines 25-37, of the August transcript).

Doing otherwise is not in the best interests of the children, and I again note may necessitate another custody arrangement . [ 49 ] With that warning established, G.S. will continue to have access to the children during the week, on Wednesdays from 4:30PM – 8:00PM. G.S. must also be permitted to be involved in the children’s after school activities, including swimming, piano, skating and guitar.

Such access will take place on one additional weekday, as arranged by the parties, and synchronized with the children’s after school activities as they exist throughout the school year. [ 50 ] G.S.’s access on weekends, as noted by Chief Justice Wittmann, should continue to be “reasonable and generous”, which I find is no less, on average, than every second weekend with the children.

Scheduling of such access, including half of all vacation and holiday time, is to be arranged between the parties. [ 51 ] Each parent also shall have a so-called “right of first refusal” to be with the children on occasions when the other parent is away or unable to assume their parenting time.

In such situations, it is not acceptable for the children to be cared for by anyone else before the other parent is given the opportunity to spend more time with their children (see p. 8, lines 24-38, of the September transcript). [ 52 ] While G.S. will no doubt be unhappy with the parenting arrangement of every other weekend and two evenings a week with the children, I do not see any other arrangement that will benefit the interests children to the same extent as the present situation. 2) Spousal Support [ 53 ]

Section 17 of the Divorce Act provides that:

(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(

a) a support order or any provision thereof on application by either or both former spouses [...]

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in thecondition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or thelast variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

(7) A variation order varying a spousal support order should (

a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (

b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and aboveany obligation for the support of any child of the marriage; (

c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and (

d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time. [54] Under section 17(1) of the Divorce Act, this Court may vary an interim support order: Stannard v. Stannard (1991), (AB KB), 123 AR 27 paras. 6-11, 34 RFL (3d) 249 (QB). Before a variation may be granted however, an applicant mustshow there has been a material change in circumstances since the interim order was made: Willick v. Willick, (SCC),[1994] 3 SCR 670 at paras. 22-24, 119 DLR (4th) 405. Recently confirmed by the Supreme Court in LMP v.

LS, 2011 SCC 64 at para.33, [2011] SCJ No 64, this principle requires the Court to look back at the circumstances in which the initial award was made todetermine whether a given change “would likely have resulted in different terms.” [55] The onus on the applicant is heavy to demonstrate that such a material change has taken place following an interim supportorder: Simmons v. Simmons, 2011 ONSC 5020 at para. 25, citing Coley v. Coley (1981), (MB CA), 10 Man R (2d)236, 20 RFL (2d) 327 (CA) and Huculak v. Huculak (1998), (BC CA), 103 BCAC 276 (Chambers).

The BritishColumbia Court of Appeal discusses the reasoning for this in Huculak at para. 3, noting: “It is fair to say that previous cases, both in this court and in the Supreme Court, have made it clear that variations to interim maintenanceorders are not granted lightly.

There are sound policy reasons for that because if that were not the case, there would be a considerableexpenditure of judicial and legal time and resources on matters that are in their nature of an interim or temporary nature and subjectalways to revision at the trial of the matter.” [56] A party seeking a reduction in spousal support must be able to show sufficient evidence of a loss of income. Lacking this, acourt may not be able to draw reasonable inferences about the financial circumstances of a party and therefore unable to find that amaterial change has taken place: RP. v.

RC, 2011 SCC 65. [57] Currently G.S. receives $4,500 per month from V.S. in spousal support, which includes a setoff for child support owed to V.S.in the amount of $763.00. V.S. has requested that the amount of spousal support she pays be reduced because her income hassignificantly decreased since 2010. [58] According to the Agreed Statement of Facts, V.S.’s 2010 income was $290,000 while G.S. earned $53,000. At the viva voce

hearing V.S. testified that her gross income for her professional corporation for the first eight months of 2011 was approximately $185,000 (at p. 41, lines 23-24, of the August transcript).

Based on this V.S. estimates her income for 2011 will be $167,500 after deducting her corporation’s annual expenses (at para. 27 of the Plaintiff’s brief). [ 59 ] G.S. maintains that the amount of spousal support should remain the same for a variety of reasons, including recognition of the substantial difference in income between the parties, the length of their marriage and his economic dependancy on V.S. (at para. 90 of the Defendant’s brief). [ 60 ] In Willick at para. 22 , the Supreme Court identified a material change as something that, if known at the time of an interim order, would likely have resulted in different terms.

The Court goes on to note that the corollary to this principle is that if a change is known at the time of the interim order it cannot be relied on as the basis for variation. [ 61 ] Determining whether a material change has occurred or not in this case is a challenge due to the lack of updated evidence. The only information brought forward by V.S. to suggest a change in her income for 2011 was the claim that she had earned less during the first eight months of the year as compared to 2010, based on her professional corporation’s bank statements.

When asked to explain why her income was decreasing so quickly in 2011, V.S. stated that she worked less partly because she chose to, and partly because her secretary intentionally decreased her hours by booking fewer clients because she appeared “stressed” (at p. 40, lines 33-36, and p. 38, lines 37 - 38, of the August transcript). [ 62 ] It is reasonable to expect the breakdown of a marriage to be a stressful period, which may affect a person’s life and have ramifications on their career. Likewise, caring for children as the primary caregiver can necessitate changes to a parent’s work

schedule and result in a reduced income. My concern is whether this justifies a drop in income of almost fifty percent. [ 63 ] The background facts are the following: V.S. has averaged an income of roughly $300,000 over the last three years. According to the testimony of V.S., her income for 2010 was approximately $290,000 (at p. 43, lines 9-14, of the August transcript), $325,000 in 2009 and $333,000 in 2008 (at p. 44, lines 1-6, of the August transcript). If her income for 2011 is in fact $167,500 as she estimates, this is a decrease of almost ½ which is surprising based on the past three years.

If her income does indeed decrease by ½ in 2011, and we will know this for certain in early 2012, that could affect the interim award. Having said that, a three year averaging of V.S.’s income is still be a hurdle she may have to overcome in arguing for a reduction in spousal support (and that decision is for another day). [ 64 ] Chief Justice Wittman set the current amount of spousal support on May 26, 2011. Based on the evidence available at that time it was a fair award.

As a self-employed doctor generating income through a professional corporation, the difficulty is that V.S. has a certain amount of control over her income depending on how much she choses to work over the course of a year. [ 65 ] Thus, without knowing what the actual decrease in V.S.’s income will be for 2011, based on the evidence available at present it is difficult to find that a material change in circumstance has occurred. Put another way, I do not want to speculate on what V.S.’s income might be for 2011 but the quick decline obviously causes concern.

Accordingly, the amount of spousal support paid by V.S. to G.S. will remain unchanged for the time being. [ 66 ] As I noted above, this finding does not prejudice any subsequent claim by V.S., although she may have to deal with the potential three-year averaging of her income and will need to produce supporting documentation when the time comes. 3) Matrimonial Property [ 67 ] In addition to custody and access and spousal support, the parties have other property issues which were not argued as part of the viva voce hearing, including the matrimonial home, the family van, the repayment of money withdrawn from a joint savings account and the reinstatement of the joint credit card, amongst other things.

Without any evidence before me, these issues are best resolved at trial.

Summary [ 68 ] In

summary:

i) The current parenting arrangement will continue. As per the present situation. G.S. will have access to the children during the week, on Wednesdays from 4:30PM – 8:00PM. ii) G.S. will also have additional access to the children one additional week night, as arranged between the parties, synchronized with one or more of the children’s after school activities. iii) V.S. will provide G.S. reasonable and generous access to the children on the weekend, which should be no less, on average, than every second weekend, as arranged by the parties. iv) V.S. and G.S. will share equally all vacation and holiday time spent with the children.

v) Each parent will have a “right of first refusal” to parent the children if the other parent is away or cannot assume parenting at that time. vi) V.S. will continue to provide spousal support to G.S. in the amount of $4,500 per month, which includes a setoff for child support owed to V.S. in the amount of $763.00. vii) The division of matrimonial property will be resolved at trial. [ 69 ] To set a trial date, both parties and their counsel must make every effort to comply with

Part 8, Division 2, of the Alberta Rules of Court, Alta Reg 124/2010 , regarding scheduling prerequisites: see Rule 8.4(1) - (3) . Both parties are to get their witnesses and documents in order and, of course, to consider alternative dispute resolution (ADR). Heard on the 26 th day of August, 2011 and the 30 th day of September, 2011. Dated at the City of Medicine Hat, Alberta this 22 th day of December, 2011. W. A. Tilleman J.C.Q.B.A. Appearances:

John D. Evans for the Plaintiff Lori G. Andreachuk, Q.C. for the Defendant