KML v CME, 2012 ABQB 246

Court of Queen ’ s Bench of Alberta Citation: KML v CME, 2012 ABQB 246 Date: 20120416 Docket: 4803 154809 Registry : Edmonton Between: KML Applicant - and - CME Respondent Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] The Applicant mother has brought an application for an Order granting her primary residential care of two children of the marriage, and shared parenting of the third child; or in the alternative shared parenting for all three children. [ 2 ] The father has brought a cross-application for an Order granting him primary day-to-day care of the third child, and granting him shared parenting with respect to the other two children.

[ 3 ] The father also seeks payment of half of the school costs he paid for the last two years which amount to $406.71 with accrued interest. The mother in response swore an Affidavit dated April 9, 2012 in which she indicated at paragraph 20 that if the school fees they were incurred while the parties lived together.

However the father notes from the Statement of Claim for Divorce filed October 8, 2010 by the mother that the date of separation was in November 2009, after these expenses were incurred. [ 4 ] By way of background these parties were married in 1999 and there are three children of the marriage currently 7, 9 ½ , and 12 years of age.

During the marriage the parents both were involved in the children ’ s lives, although the father primarily worked, and usually spent time with the children on his days off. [ 5 ] The parties separated in November 2009, at which point the father moved to nearby Westlock, whereas the three children stayed with the mother to finish their school year. [ 6 ] An Interim Without Prejudice Consent Order granted on November 26, 2010 gave the mother day-to-day care of the three children, with the father being given specified access. The mother has now also moved to Westlock and the children all attend school there.

Both parties live very close to one another. [ 7 ] The father seeks primary care of the 9 ½ year old child who has been diagnosed with multiple development issues. The mother was the primary caregiver to this child until an August 2011 incident with the mother and her family, which caused the child to live with the father. Since August 2011 the father has had the primary care of this child, and the mother has had regular visits.

As the parties reside very close to each other in proximity, the father ’ s parenting time with all his children has already increased well beyond the terms of the existing Court Order which specified his access as being one night a week and every second weekend. [ 8 ] It is the father ’ s position that it is in the best interests of the 9 ½ year old child to continue living full time with him since he has flourished under his care in many respects. [ 9 ] The mother ’ s position is that she should have primary care of the children as she was always a stay at home mother during the marriage, and has not worked since the oldest child was 2 years old.

She submits that the father had very little involvement with the children when the parties lived together. Only after the parties separated, did the father have regular contact with two of the children, and the November 26, 2010 Court Order granted her primary care of all three children. The mother submits that she has been looking after the 9 ½ year old child ’ s developmental issues for a number of years, until the child moved in with the father in August 2011. The mother submits that since the 9 ½ year old child began living with the father, the father has alienated him from the mother by demeaning her.

The mother accuses the father of consistently having denied that the 9 ½ year old child has any developmental issues. The father allegedly has refused to cooperate with the occupational therapist and has not taken the child to his doctor regularly, all of which is contrary to the child ’ s best interests. [ 10 ] It is the father ’ s position that the child should be re-assessed in order to be able to target his specific issues that he is dealing with at this time.

He believes that the current diagnosis of the 9 ½ year old is extreme, and that he would be more comfortable with a re- assessment to ensure proper diagnosis. Conclusion [ 11 ] The outstanding issue in this matter is what is the best parenting regime for the children. The mother ’ s position is that at minimum she should have shared parenting of all three children with the father, as the children should not be separated from their siblings.

The father ’ s position is that the 9 ½ year old child should remain in his primary care, and that the parties be granted shared parenting with respect to the two other children. The mother is of the view that she should have primary care of all the children. The father submits that he was denied access to his children when the mother had primary care of them.

[ 12 ] I concluded that on an interim basis the 9 ½ year old child should remain with the father, who he has been living with in any event reasonably successfully since August 2011. It appears this child has some developmental issues, and although the mother was the primary caregiver to this child, there was an incident in August 2011 which required the child to go to live with the father. Since August 2011, the father has developed a stable routine for the child which appears to allow him to do well despite his issues.

The child ’ s teachers and other members of the community have noticed an improvement, and the child can still continue to have a relationship with the mother on generously scheduled parenting time given that the parties live so close together.

The father also seems to think that the child ’ s need for the prescribed medication has diminished substantially, and I conclude that there should be a re-assessment of the child completed in order to target the specific issues that the child may be dealing with at this time. [ 13 ] As for the other two children who are currently 7 and 12 years of age, I conclude that they should have maximum contact with both parents since both parents are living so close together only a few minutes away from each other.

Both parents are able to accommodate the children in their own space, and it appears that both children are well cared for at either parent ’ s home. Both children have a strong bond with each parent. Accordingly the best interests of the other two children currently ages 7 and 12 would be met through a shared parenting arrangement. [ 14 ] Finally as regards to the school fees, they were billed to the father but were sent to the mother ’ s former residence. The school fees were then sent out for collection when they were not paid, even though the father did not know they were outstanding.

The father had to paid the full amount of the school fees in the amount of $406.71, so that the mother is required to pay half of those expenses given the de facto shared parenting arrangement that was in place earlier, namely $203.35. I note that if the children were actually in the mother ’ s primary care at the time when these expenses were incurred, the father could have taken the position that the mother would be solely responsible for these school fees, as arguably school fees are a basic expense that should be covered by the child support that was paid pursuant to

Section 3 of the Federal Child Support Guidelines . [ 15 ] In the circumstances each party will be responsible for their own legal costs in this matter. Heard on the 10 th day of April, 2012. Dated at the City of Edmonton, Alberta this 13 th day of April, 2012. Donald Lee J.C.Q.B.A. Appearances: Zoran Bozic for the Applicant Oana A. Jurgea

Merchant Law Group for the Respondent