J.L.M. v. C.R.Y., 2012 ABQB 312

Court of Queen ’ s Bench of Alberta Citation: J.L.M. v. C.R.Y., 2012 ABQB 312 Date: 20120511 Docket: FL01 13241, 4801 130702 Registry: Calgary

Docket: FL01 13241 Between: J.L.M. Plaintiff - and - C.R.Y. Defendant Docket: 4801 130702 Between: C.R.Y. Plaintiff - and - J.L.P. Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________

INTRODUCTION [ 1 ] This matter came before the Court as a Chambers Application requesting the following relief: Mr. C.R.Y. requested :

a) An order that he has specified and unsupervised access with the child of the marriage, B.R.Y., born October 14, 2005;

b) An order that the Court direct the parties enter into Parenting Coordination and/or an order requesting that there be an assessment under Practice Note 7; Ms. J.L.M. (formerly J.L.P.) requested:

c) An order for ongoing child support that Mr. C.R.Y. pay his proportionate share of child marriage

section 7 expenses and that she receive retroactive child support;

d) An order dispensing with Mr. C.R.Y.’s consent to changing the name of the child B.R.Y. from “Y” to “M”. BACKGROUND AND FACTS [ 2 ] The parties were married on February 16, 2002 after having dated for approximately four years. In the spring of 2002, Ms. J.L.M. graduated with a Nursing degree and Mr. C.R.Y. completed a Bachelor of Communication degree. They then moved to the United States where Mr. C.R.Y. attended a flight school and Ms. J.L.M. supported the couple. [ 3 ] On October 14, 2005, the child B.R.Y. was born to the couple. Mr.

C.R.Y. was still in University, taking pilot training and working as a flight instructor. Six weeks after the child’s birth, Ms. J.L.M. returned to her family in Calgary. The parties have essentially been separated from that date on. [ 4 ] On May 16, 2008, a consent Divorce Judgment was granted in this Court giving sole custody and primary residential care of the child to Ms. J.L.M. and granted Mr.

C.R.Y. access to the child, B.R.Y., when he is in the Calgary area. [ 5 ] Paragraph 7 of the Divorce Judgment reads as follows: That the Defendant and the Plaintiff having satisfied the Court that payment of the full amount of child support prescribed in the Federal Child Support Guidelines would cause the Plaintiff undue hardship have agreed to no payment of child support at this time...the child support shall be reviewed yearly. [ 6 ] His employment income in 2008 was $30,612. In 2001 his income was $31,601. In 2010 his income was $33,839. [ 7 ] In December of 2011, Mr.

C.R.Y. increased his payment pursuant to an Interim Without Prejudice Consent Order child

support $322 and in March 2012, his payment was increased to $388. [ 8 ] In 2008, Ms. J.L.M. had total income of $27,252. In 2009 income of $30,390; and in 2010 income of $35,471. We do not know Ms. J.L.M.’s income for 2011. Mr. M. has income in the range of $125,000. [ 9 ] From the time B.R.Y. was four months old until 2010, Mr. C.R.Y. did not see the child and has since 2010 demonstrated an increasing interest in developing a relationship with the child. For some period of time, it appears, that the parties left each other alone. Mr. C.R.Y. did not see B.R.Y., that was okay with mom. Ms.

J.L.M. did not ask for child support, that was okay with Mr. C.R.Y. [ 10 ] Both parties to this action have remarried and each have two girls with their new spouses. Ms. J.L.M. and her husband have daughters born in January, 2008 and July, 2010 and live near Calgary, Alberta. Mr. C.R.Y. has two daughters born August, 2007 and February, 2010.

These four young girls have one brother B.R.Y., who will be seven in October of this year. [ 11 ] Increase contact between the birth father and B.R.Y. has been difficult and on a reading of the Affidavits filed it appears from the documentary evidence that this difficulty is the equal responsibility of both sets of parents. Mr. C.R.Y. wants a more meaningful relationship with the child. The M.’s do not wish to have disruption in their life. [ 12 ] The M. family has a long history of successful agriculture and farm living in Alberta and are able to offer the child a stable, loving and nurturing environment. Mr.

C.R.Y. is a commercial pilot. He and his family reside permanently in the United States. He is able to offer an enhanced living experience to the child B.R.Y. [ 13 ] It is in the best interest of B.R.Y. that he have meaningful contact with Mr. C.R.Y. as he matures and grows and maintains his loving relationship with his Alberta family. It is also important for his four sibling sisters that they have contact with him. ACCESS [ 14 ] Ms. J.L.M. is agreeable to a suggestion from Mr. C.R.Y. that he have a four day visit in July of 2012 over five days.

These will not be overnight visits with one day between a two, two-day period. On the first day Ms. J.L.M. would accompany B.R.Y. and would not accompany B.R.Y. on days two to four. These visits will occur in July and not include the period July 1 st to 8 th or July 29 th to August 7 th . This is reasonable and so Ordered. [ 15 ] In September, the M. family are away from the 1 st until the 4 th and from the 8 th until the 17 th . Therefore there will be a September visit outside those periods.

The visit will be a three day visit which would include either a Friday or a Monday added to a weekend outside the period where the M.’s are away. This may include a school day and may require B.R.Y. missing one day of school. These visits will be unaccompanied and none will be overnight. [ 16 ] In November, again unfortunately, the M.’s are not available to have Mr. C.R.Y. have access on the long weekend involving November 11 th . Therefore on another weekend in November, at the discretion of Mr.

C.R.Y., there will be a three-day weekend visit which will include an unaccompanied one overnight visit from the Saturday to the Sunday. [ 17 ] On all of these visits Mr. C.R.Y. and Ms. J.L.M. will communicate by telephone and at least two weeks in advance to confirm availability. [ 18 ] Christmas visit between Mr. C.R.Y. and the child will occur between Boxing Day and the return of the child to school. This will also be a three day visit including two overnights with Mr. C.R.Y.

[19] With respect to future access between Mr. C.R.Y. and the child, should the parties be unable to agree in 2013 and beyond,they are at liberty to seek further direction and order from myself. CHILD SUPPORT [20] On review of the materials provided, it is clear that the parties “left each other alone” for years therefore I find there wasmutual forbearance and will settle child support commencing in 2009. I accept the calculations provided by Mr. C.R.Y. with respect toarrears of child support and

section 7 expenses. Therefore; for the year 2009, the amount of arrears owing is $3,761.33; for the year2010, the amount of arrears owing is $3,400.67. This amount will be paid to Ms. J.L.M. in equal monthly instalments in the amount of$150 per month in addition to other child support payable. Mr. C.R.Y. will also pay his proportionate share of s.7 expense. RE-CHANGE OF NAME [21] In Wintemute v. O’Sullivan (Wintemute) (AB KB), 48 R.F.L. (2d) 276 (Alta. Q.B.) Justice Sinclair saidthis at paragraph 7: The factors to which courts should have regard in cases of this kind are set out in Davies, Family Law in Canada (1984), at p. 32: (

a) The welfare of the child is the paramount consideration. (

b) The short and long term effects of any change in the child's surname. (

c) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care andcontrol. (

d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed. (

e) The effect which any change in surname may have on the relationship between the child and the parent whose name the childbore during the marriage. (

f) The effect of frequent or random changes of name. [22] I am satisfied on a review of this decision and in particular the above quoted paragraph, that it is not in the best interest of thechild at this time, bearing in mind the high conflict between these parties for there to be a change of name. I reserve that decision to somefuture date. Of course, at any time that the parties agree that this change of name should take place, they may do so without further orderof this Court. [23] Judgment accordingly. Heard on the 03rd day of May, 2012. Dated at the City of Calgary, Alberta this 11th day of May, 2012.

W.P. Sullivan J.C.Q.B.A. Appearances: Tamasine I. Davies, Q.C. For the Plaintiff (Defendant) Adam Singer for the Defendant (Plaintiff)