Sutherland v Sutherland, 2012 ABQB 345

Court of Queen ’ s Bench of Alberta Citation: Sutherland v Sutherland, 2012 ABQB 345 Date: 20120525 Docket: 4804 008216 Registry: Grande Prairie Between: Laurie Lee Sutherland Respondent/Plaintiff - and - Daniel John Sutherland Applicant/Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] These parties are the parents of two girls who are presently 8 ½ , and almost 6 years of age.

The parties separated in August 2008 with the children remaining in the mother ’ s primary care since that time. The parties entered into a Divorce and Property Agreement ( “ Agreement ” ) agreeing to joint custody, with primary residence to the mother and access to the father on 24 hours notice. The terms of the Agreement were reflected in the parties ’ Divorce Judgment. [ 2 ] The father has now brought an application to make a change in the custody arrangement. The father argues that at the time of the Agreement, the children were 6 and 3 years of age, whereas they are now 8 ½ , and almost 6 years of age.

At the time of the Agreement remained in the matrimonial home with the mother, on an acreage located outside the City of Grande Prairie. The mother had a full-time nanny to assist with day to day care of the children, but refused to allow the nanny to move between the parties ’ residences, so the father was unable to seek shared custody at the time.

[ 3 ] Since the execution of the Agreement, the mother has sold the matrimonial home and now resides in the City of Grande Prairie, Alberta. The father purchased a home only a few blocks from the mother ’ s residence, and the children ’ s school. Both children are now of school age. The father now seeks shared custody and shared parenting of the children. [ 4 ] The father works on a specific 28 day rotation, and has a number of days when he is not scheduled to work, and seeks to have the children in his care on his days off.

He would be able to give his full time and attention to the children when they are in his care.

The father seeks an Order as follows with respect to his 28 day work rotation: – • From days 1 through 7 (of his work schedule), the children would be in the mother ’ s care; • From days 8 through 11, the children would be in the father ’ s care; • From days 12 through 15, the children would be in the mother ’ s care; • From days 16 through 22, the children would be in the father ’ s care; • From days 23 through 25, the children would be in the mother ’ s care; and • From days 25 through 28, the children would be in the father ’ s care. [ 5 ] Alternatively, the father would like to have the children on a 14 day on 14 day off rotation.

The father would require child care arrangements for 3 of those days as he is scheduled to work and leaves for work very early in the morning, returning after 6:00 p.m.

The father is prepared to be responsible for making those child care arrangements, and for ensuring that the children attend their scheduled activities. [ 6 ] The mother is employed at the Grande Prairie Regional College and works a normal Monday through Friday work day. [ 7 ] The father also takes the position that he has been denied access and denied an active role in the children ’ s lives since separation because the mother has hindered his ability to have frequent and regular access with the children.

It is alleged that the mother either refuses to allow him time with the children, or schedules the children with so many activities that he finds it difficult to work around the children ’ s schedule. For example the children have to practice piano at their mother ’ s home each evening, which means that the father has to return the children to their mother ’ s home each weekday evening so that they can practice piano. Retroactive Child Support [ 8 ] The mother has filed a cross-application for retroactive child support. The father objects to many of the children ’ s

Section 7 expenses because he never had any input into some of those expenses. He also argues that the mother seeks reimbursement for a number of items that were never agreed to, or for which she has provided no receipts. Conclusion [ 9 ] The father has essentially had his present work

schedule for at least 10 years, but now indicates that he is able to commit a greater amount of time to his children, after allegedly having been denied access on various occasions since the parties separated. Although there has been some change in circumstance such as the parties ’ relocating their residences in both cases, the present parenting arrangement has been in place since August 2008. This status quo then is stable, and appears to have worked well. The father ’ s proposed parenting

schedule would provide for major changes, and significant movement between the two residences. The nanny that has been looking after the children would also effectively be reduced to a half time person, and the children would end up with two potentially completely new care providers if the nanny has to be let go for financial reasons. I conclude that the father has failed to show why the present situation needs to be changed.

[ 10 ] The father works 40 minutes outside of Grande Prairie and works from 7:00 a.m. to 7:00 p.m. when he is on day shift. The father would start to go to work at 6:20 a.m. so that on the days that the father needs child care the children would have to be up around 5:30 a.m. and not be picked up until 7:30 p.m. or later from the sitters home that the father prefers to use, which is not in the same neighbourhood as the parties ’ residences.

This would result in a 12 plus hour day for an 8 ½ , and 6 year old child. [ 11 ] As for the allegations of denial of access, the agreement between the parties called for 24 hours notice, while that arrangement did not work out very well at times, it does not amount to a denial of access by the mother to the father.

There is also the issue as to who takes the children to school on the days that the father has to go to work and has the children in the shared parenting arrangement. [ 12 ] On balance, I adopt the mother ’ s proposal which sets out a plan for the children ’ s care while taking into account the father ’ s work

schedule and ability to care for the children. Accordingly I adopt Exhibit “ B ” to the mother ’ s Affidavit sworn May 9, 2012 which is a 24 month proposal for the father ’ s access to the children which gives the father two weekends per month from Friday after school until Sunday at 6:00 p.m. The father is also able on his other days off that he wishes to have the children, to request the children on reasonable notice. The proposed

schedule also sets aside periods of time for each parent ’ s summer vacation plus alternating Christmas and other holidays, therefore maximizing the father ’ s time with the children without discarding their present and consistent routine. The children appear to be doing very well, so that their schedules should not be disrupted anymore then necessary, and their best interests kept in mind. Child Support [ 13 ] The mother submits that the father ’ s total income should be used for all child support calculations, and that there is no reason to deviate from the Federal Child Support Guidelines .

The father is of the view that if the Court were to direct retroactive child support be paid solely on his Line 150 tax return income, the mother would receive a capital transfer for property that belongs solely to him in accordance with the Agreement. [ 14 ] The parties entered into the terms of the Divorce and Property Agreement, which states at paragraph 40 of the Agreement that: – The parties agree that neither will make an application to split or in any way share or claim any interest whatsoever, nor at any future time, in any Registered Pension Plan or Registered Retirement Savings Plan, or on any or all other independent pension plans, commissions, bonuses or wages, etc. or of any of the benefits thereof, which the party presently has or may acquire in the future and the parties hereto specifically renounce any interest they may have in any pension plan of the other. [ 15 ] The father has attached as Exhibit “ D ” his 2010 and 2011 final pay stub which show the breakdown of his income.

It is the father ’ s view that if his retroactive child support were based solely on Line 150 of his tax return, the mother would receive a capital transfer for property that belongs solely to him. On his 2010 and 2011 pay stubs you will note that Mr. Sutherland received the following remuneration in addition to his regular pay and any over time worked: – 2010 Bonus $ 3,150.00 Stocks 3,490.00 Savings Plan 16,094.02

Total $22,734.02 2011 Bonus $ 2,900.00 Stocks 30,244.65 Savings Plan 15,942.70 Total $49,087.35 [ 16 ] It is the father ’ s view that the Court ought to deduct from his Line 150 income these amounts before calculating retroactive child support in accordance with the Divorce Judgment and the Agreement.

The father ’ s Guideline income ought to be set as follows: – 2010 Total Earnings $148,457.47 Deductions - 22,734.02 2010 Guideline Income $125,723.45 2011 Total Earnings $157,950.90 Deductions - 49,087.35 2011 Guideline Income $108,863.55 [ 17 ] Pursuant to the Federal Child Support Guidelines , the father ’ s child support obligations would be as follows: – 2010 $1,775.00 per month 2011 $1,551.00 per month [ 18 ] The father has paid $1,500 per month, therefore I agree with the father that retroactive support to be awarded in this matter is as follows: – 2010 underpaid $275.00 per month for a total of $3,300.00

2011 underpaid $51.00 per month for a total of 612.00 2012 underpaid $51.00 per month for 5 months 255.00 Total Retroactive S. 3 support 4,167.00 Total Retroactive S. 7 support 2,287.50 Total Retroactive Child Support $6,454.50 [ 19 ] As for the

Section 7 expenses, they will include only the ski lessons, piano lessons, and horseback riding, and the parties can calculate the appropriate contribution on their own with respect to these

Section 7 expenses. Disposition [ 20 ] The father ’ s request for shared parenting is denied.

Parenting of the children will be on the basis of the mother ’ s proposal as identified at Exhibit “ B ” , paragraph 8 of her Affidavit sworn and filed on May 9, 2012. [ 21 ] Pursuant to the Federal Child Support Guidelines , the father ’ s child support obligations are as follows: – 2010 $1,775.00 per month 2011 $1,551.00 per month [ 22 ] Retroactive child support is calculated as follows: – 2010 underpaid $275.00 per month for a total of $3,300.00 2011 underpaid $51.00 per month for a total of 612.00 2012 underpaid $51.00 per month for 5 months 255.00 Total Retroactive S. 3 support 4,167.00 Total Retroactive S. 7 support 2,287.50 Total Retroactive Child Support $6,454.50

[ 23 ] The total retroactive child support arrears of $6,454.50 is to be paid by the father to the mother immediately in one lump sum. [ 24 ] As there has been mixed success in this matter, each party will be responsible for their own costs. Heard on the 19 th day of April, 2012. Supplementary Materials Filed May 3 rd and May 9 th , 2012. Dated at the City of Edmonton, Alberta this 25 th day of May, 2012. Donald Lee J.C.Q.B.A. Appearances: Michael E. Wheaton Dobko & Wheaton for the Plaintiff Nicole Simoneau Lewis & Chrenek LLP for the Defendant