Lowes v Lowes, 2012 ABQB 147

Court of Queen ’ s Bench of Alberta Citation: Lowes v Lowes, 2012 ABQB 147 Date: 20120301 Docket: 4803 157255 Registry: Edmonton Between: Stephanie Anne Lowes Plaintiff - and - James Edward Lowes Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is an application and cross application with respect to parenting time for two children of the marriage, presently ages 2 and 4.

The Defendant father seeks interim joint custody of the children of the marriage; and shared parenting of the children of the marriage on a one week on/one week off basis. The Plaintiff mother makes a cross application for an Order for primary care and control of the children with specified access to the father on alternating weekends from Friday at 4:00 p.m. to Sunday evening at 4:30 p.m., and every second Wednesday evening from 4:00 p.m. to Thursday morning at 8:30 a.m.

The mother proposes a condition with respect to any time that the father does spend with the children (because of the father’s alleged drinking problems) that he refrain absolutely from the use of any alcohol prior to the pick up of the children and during the time that he has the children in his care. [ 2 ] The mother’s position is that it is not in the best interests of the infant children of the marriage that there be any increased

[ 2 ] The mother’s position is that it is not in the best interests of the infant children of the marriage that there be any increased access time with their father until such time as he has taken positive steps to address his alcohol issues. The father denies that he has any alcohol issues and that he is actually better able to care for the children on a shared parenting basis than the mother in some respects given that he operates his own business and therefore controls his own hours. He argues that a shared parenting arrangement is in the best interests of the children.

The mother works full-time and currently has a nanny employed to look after the children when she is at work from approximately 9:00 a.m. to 5:30 p.m. [ 3 ] In addition to their own Affidavits, both parties have provided various Affidavits from family and friends in this matter with respect to the alcohol issue or problem that the father is alleged to have.

By and large the Affidavits contradict each other, and there is no real evidence that the Court can rely on with respect to whether or not the father does have a serious alcohol problem. [ 4 ] These parties were married in September 2006, and separated approximately a year ago in February 2011. The mother was the primary caregiver during the marriage for the children. Prior to the separation, the mother alleges that the father was essentially uninvolved with the children, or was involved at times inappropriately.

The husband deposes that he was actively and positively involved in the children’s day to day care. [ 5 ] Since the separation a year ago, the father alleges that the mother unilaterally decided that the could see his sons every second weekend and every Wednesday, and that he has been trying to negotiate with the mother directly with respect to a shared parenting regime, but she has refused to cooperate.

Analysis [ 6 ] The mother argues that the amount of parenting time the father should have with respect to the children of the marriage should take into account the children’s bests interests, including but not limited to the present arrangements, the ages of the children, the prior roles taken by the respective parties, and the father’s inability or refusal to address his alcohol issues. [ 7 ] While the status quo has been that the mother has had the primary care and control of the children, and while this appears to be satisfactory for the children, this arrangement apparently was unilaterally imposed by the mother. [ 8 ] The father’s lack of involvement with the children prior to the separation should not preclude him from being involved with the children at this time, as I should consider maximizing contact wherever possible.

Nor does the father’s alcohol abuse (assuming it exists) necessarily preclude or limit his access to the children because of the principle embodied in Section 16 (9) of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.):– Past conduct 16(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child. [ 9 ] Section 16(9) applies here to restrict or preclude present parental access only where the prior conduct directly affected the child(ren), or that person’s ability to act as a parent.

Here no specific harm is identified as having come to the children as a result of the alleged prior alcohol abuse, although as with family violence witnessed by a child, one parent’s behaviour driven by alcoholism witnessed by a child can be problematic. Conclusion

[10] It is not uncommon in my experience that alcohol abuse or addiction is alleged in child custody and access matters, andalcoholism and alcohol abuse can be very important in deciding custody and access matters even on an interim basis. As for the father’salcoholism or his refusal to address his alcohol issues, there is no specific evidence before me such that I can make a finding as to theextent of the father’s alcohol problem(s), given that the evidence is directly contradictory in the Affidavits.

It is difficult to prove ordisprove the father’s alcohol problems at the present time, particularly as it affects the children and their care. [11] Counsel for the mother points out that in cases such as the present one where there are directly contradicting Affidavits onmost points in issue here, joint custody and shared parenting should not be ordered before trial. Furthermore counsel for the mothercorrectly points out that de facto child custody arrangements should not be lightly disturbed pending trial.

Counsel submits two AlbertaCourt of Appeal decisions in Richter v Richter, 2005 ABCA 165 and Chechotko v Chechotko, 2006 ABCA 118 as authority for thesepropositions.

In Richter the Alberta Court of Appeal confirmed the following two principles:– 11 First, as a general proposition, joint custody and shared parenting arrangements ought not to be ordered where the parents are insubstantial conflict with each other, and certainly not before trial especially when there is also significant disagreement on the evidence.The best interests of a child are not well served by imposing régimes which invite continued court applications on all matters, big andsmall. As the British Columbia Court of Appeal noted in Stewart v.

Stewart (1994), (BC CA), 2 R.F.L. (4th) 53 atpara. 9 (B.C.C.A.), citing Kruger v. Kruger (1979), (ON CA), 11 R.F.L. (2d) 52 at p. 79 (Ont. C.A.): [Joint custody] requires a willingness by both parents to work together to ensure the success of the arrangement. Such a willingness mustbe sincere and genuine ... 12 Second, as this Court has previous indicated, de facto child custody arrangements should not be lightly disturbed pending trial:Roebuck v. Roebuck (1983), 1983 ABCA 156 , 45 A.R. 180 at para. 19 (C.A.). A primary consideration is to ensure that there issome stability and certainty in a child's life.

Still less should significant changes be made based on disputed expert evidence which isitself likely to be introduced and challenged at trial. Instead, the focus should be moving the case on to trial.

Checkotko again reiterated this second principle from Richter. [12] However with respect to the first principle as it applies to the present case these parties are not in substantial conflict witheach other so that a joint custody shared parenting arrangement could still serve the best interests of the child. [13] As for the second proposition decided by the Court of Appeal in Richter namely that de facto child custody arrangementsshould not be lightly disturbed pending trial, in this case the de facto status quo custody arrangement appears to have been unilaterallyimposed by the mother after the separation a year ago, so that the parties never came to any agreement with respect to a status quo.

Thefather has been attempting to negotiate the matter of shared parenting ever since the separation, but without success, so he has proceededdiligently in my respectful opinion to have this issue decided now. [14] My conclusion is that the maximum contact principle in the Divorce Act should be respected, and that until a bilateral custodyassessment determines that the father’s drinking issue is a problem, he should be entitled to have interim joint custody, and sharedparenting with his sons.

The bilateral assessment ordered in this matter will determine amongst other things the extent of the father’sdrinking problems particularly as it relates to the children. It will also expedite this matter going to trial as per our above mentionedCourt of Appeal’s decisions.

The cost of the bilateral assessment will be initially paid upfront entirely by the father, given that hisincome is roughly twice that of the mother. [15] To facilitate a transition period and/or an appeal, the status quo access regime of alternating weekend and Wednesdayevening access by the father will remain in effect until April 15, 2012 if the mother wishes. At that point, the interim shared parentingjoint custody regime I have ordered shall come into affect. Heard on the 28th day of February, 2012. Dated at the City of Edmonton, Alberta this 1st day of March, 2012.

Donald Lee J.C.Q.B.A. Appearances: John McCrae Hustwick Payne for the Plaintiff Richard D. Smith Stillman LLP for the Defendant