Wickens v. Wickens, 2012 ABQB 441

Court of Queen ’ s Bench of Alberta Citation: Wickens v. Wickens, 2012 ABQB 441 Date: 20120712 Docket: 4803 132708 Registry: Edmonton Between: Christine Amy Wickens Plaintiff/Respondent - and - Keelan Brae Wickens Defendant/Applicant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Invoking the passage of time as a material change of circumstance since the parenting order collateral to the parties ’ divorce judgment in 2007, the father of an 8 year old girl asks for a shared parenting regime. The mother opposes the application on the basis that she has been their daughter ’ s primary caretaker since birth and that this should continue as she can better care for their daughter ’ s needs; the mother requests a bilateral custody assessment. [ 2 ] On a shared parenting application, each parent bears the evidential burden of their position.

[ 3 ] In the circumstances here, even if the aging of the child were not a material change of circumstance, being eminently foreseeable, there is a material change of circumstance because both the divorce judgment, and the minutes of settlement on which the divorce judgment is based, anticipated that the parties would continue to negotiate parenting time. Moreover, the respondent mother does not oppose the father ’ s application on the basis that there has been no material change of circumstance. [ 4 ] On this special chambers application, neither parent has satisfied their evidential burden.

In the result, the father ’ s request for a shared parenting regime is adjourned for a period of one year during which time the father will have some additional access and each parent will be entitled to acquire additional evidence to satisfy their evidential burden. [ 5 ] The mother ’ s request for a bilateral custody assessment is denied. Such assessments are likely to cost between $20,000.00 and $25,000.00. There is no evidence on this application that either parent can afford such an assessment or would be entitled to have that assessment paid for by the state.

In any event, in the circumstances here, a bilateral assessment would not be an effective fact-gathering mechanism to deal with most of the mother ’ s concerns. Cases and authority cited [ 6 ] By Mr. Wickens: Cavanaugh v Balkaron 2008 ABCA 423 , [2008] A.J. No. 1393 . 1. Background [ 7 ] The parties are the parents of an 8 year old daughter. They married in 2002 and separated in 2004 when their child was six months old. A divorce judgment was granted in August 2007; it was a term of that judgment that the parents have joint custody of their daughter, with the child having her primary residence with the mother.

The father ’ s access was outlined as being every second weekend from Friday until Sunday, an overnight stay on the alternating week when he does not have weekend access and access for an additional two hours during that same week; alternate Christmas holidays, a total of two one week periods to be exercised during July and August, Father ’ s Day, and any additional time on which the parents could agree. It was a further term of the judgment that the parties would attend mediation in September 2007 to discuss ongoing access issues.

These provisions essentially reflect the terms of minutes of settlement negotiated in early 2006 between the parties, with the assistance of their lawyers. [ 8 ] The father is an industrial heavy equipment technologist who has been in his current employment for a year and a half and who resides in his own home; his mother moved to Edmonton upon retirement with a view to being able to spend more time with her son and granddaughter. The mother is a nurse educator who resides with her parents on an acreage outside of Edmonton and whose employment is at the University of Alberta.

When she is at her mother ’ s current residence, the daughter is wakened at 6:15 a.m. and dropped off at daycare at 7:15 a.m. [ 9 ] The mother states that she has not pressed the father for additional child support and acknowledges that she has not disclosed her financial situation to him. [ 10 ] The mother objects to a shared parenting regime on the following grounds: - school and homework are not a priority for the father and this has been an ongoing concern; - the father ’ s house is dirty and the daughter ’ s room in his house is dirty and disorganized.

Their daughter gets a chronic cough from the dust and dander from his cats. One of the cats in incontinent and urinates on dirty clothes. There are sometimes two feet of clothing around his bed. The cats urinate on any clothing on the floor. The father is well aware of the problem and at one point thought he should put the cats down because of this problem; -there are often mouldy dishes in the sink. The dust is about an inch thick and it affects our daughter;

- the applicant is constantly losing things and asking me for them. It ’ s not that they are lost but the house is so untidy that nothing can be found. The kitchen table has so much on top of it you wouldn ’ t know the colour of it; -the garage and basement are filthy and hazardous. The stairs have so much piled up on them that you kill yourself walking down.

For a time it was better when the paternal grandfather lived with the applicant as his mother would come and clean up; - the applicant has his father, brother and roommate living with him from time to time; - I have had to buy groceries on occasion to ensure there is food for our daughter; -on at least three occasions of which I am aware, the applicant has failed to pay for car registration.

He called me to pick them up when his car was impounded leaving him and our daughter on the side of the road; -there is no set bedtime, no encouragement to do well at school, no assistance or interest in her schoolwork; - the applicant has never taken her to any appointments. I take her to all doctor, dentist, immunizations, tutors and so forth; - the applicant has not been able to keep a permanent job and therefore cannot get vacation time to spend with our daughter. He has had numerous jobs and tells me he is afraid that he will lose this one as well.

The applicant has no routine for our daughter and she is a child that needs and requires routine and structure; -our daughter tells me that her father yells at her and gets mad easily; - my

schedule at work allows me to pick our daughter up at 3:30 to 3:45. She essentially walks from school to the day care and I meet her there. The Defendant does not have the flexibility to pick her up until at least an hour and a half later. 2. Onus on shared parenting hearings [ 11 ] As Mr. Wickens properly reminds me, I wrongly discerned a “ default ” position in favour of shared parenting where the parents had joint custody and joint guardianship unless the parent who opposed the shared parenting regime could establish that such a regime was not in the child ’ s best interests: Cavanaugh .

I had attempted to build on the Supreme Court ’ s view that the maximum contact principle as set out by Parliament in the Divorce Act was “ mandatory, but not absolute ” ( Gordon ) with a view to maximizing certainty for parents who were engaged in a shared parenting dispute and minimizing the cost of such proceedings, but I was reminded by our Court of Appeal that such a result would only replace old, judge made, presumptions - child of tender years, and primary caregiver - with a new, Parliament made, one in favour of shared parenting: . . . there are no longer any presumptions or default positions that regulate decisions as to custody and access.

The sole determinant is the best interests of the child. While other principles may be considered, particularly where both parents are equally suitable, they must be viewed and determined from the standpoint of the best interests of the child. [ 12 ] Although Gordon was dealing specifically with mobility issues, on behalf of the majority McLachlin J., as she then was, made comments with general application to parenting issues, including shared parenting as the pinnacle of maximum contact:

24 The second factor which Parliament specifically chose to mention in assessing the best interests of the child is maximum contactbetween the child and both parents. Both ss. 16(10) and 17(9) of the Act require that "the court shall give effect to the principle that achild of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child". Thesections go on to say that for this purpose, the court "shall take into consideration the willingness of [the applicant] to facilitate" thechild's contact with the non-custodial parent.

The "maximum contact" principle, as it has been called, is mandatory, but not absolute. TheAct only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors showthat it would not be in the child's best interests, the court can and should restrict contact: Young v. Young, (SCC),[1993] 4 S.C.R. 3, at pp. 117-18, per McLachlin J. (Emphasis added) Although in that para.

McLachlin J. refers to her earlier comments in Young, it may be that L’Heureux-Dubé J.’s decision on custody andaccess was in fact the majority decision in that case; the latter judge was, of course, in the minority in Gordon itself. The fact that thesetwo judges arguably represented each of the majority and the minority in decisions dealing with custodial assessments emphasizes theparamountcy of the best interests test.

In the result, in a shared parenting contest, both parents have an evidential burden. [13] McLachlin J. then usefully went on to summarize the general approach of the common law to the content of the best interestsanalysis : 49 The law can be summarized as follows: 1. The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a materialchange in the circumstances affecting the child. 2.

If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child,having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitledto great respect. 5. Each case turns on its own unique circumstances.

The only issue is the best interest of the child in the particular circumstances of thecase. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (

a) the existing custody arrangement and relationship between the child and the custodial parent; (

b) the existing access arrangement and the relationship between the child and the access parent; (

c) the desirability of maximizing contact between the child and both parents; (

d) the views of the child; (

e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs ofthe child; (

f) disruption to the child of a change in custody; (

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. 3. Has the father/applicant demonstrated a material change of circumstance? [14] In the circumstances here, the father has established the necessary material change of circumstance authorizing the bringingof the application.

[ 15 ] Even if the aging of the child were not a material change of circumstance, being eminently foreseeable, there is a material change of circumstance because both the divorce judgment, and the minutes of settlement on which the divorce judgment is based, anticipated that the parties would continue to negotiate parenting time. Moreover, the respondent mother does not oppose the father's application on the basis that there has been no material change of circumstance. 4.

Is a shared parenting regime in this child ’ s best interests? [ 16 ] Neither parent has met their evidential burden on this special chambers application - the father has not proved that a shared parenting regime is in his daughter ’ s best interests, and the mother has not proved that a shared parenting regime is not in her daughter ’ s best interests.

In particular, neither parent has established what their child needs in order to flourish and how each of them can best meet those needs. [ 17 ] In coming to that conclusion, I have begun my analysis by noting that, in the parties ’ divorce judgment, which was granted as a desk divorce without hearing oral evidence and which was based on extensive minutes of settlement executed by the parties with the assistance of their lawyers, the parties were given joint custody of their only child, a daughter.

The wording of the minutes of settlement goes even further: 2.1 the parties shall retain joint custody and guardianship of the child. The parties acknowledge the unique contribution of each party to parenting the child, and agree that parenting is a shared obligation with shared rights and responsibilities. It is the intention of the parties that each of them shall continue to have a full and active role in providing a sound environment for the child.

Given the case law which essentially equates the legal notions of custody and guardianship, it is not surprising that the wording of guardianship was not reproduced in the divorce judgment, having presumably been characterized as surplusage. [ 18 ] Despite the parties ’ agreement on joint custody, they also agreed that the child ’ s primary residence would be with her mother.

At the time of the execution of the minutes of settlement, the child in question would have been approximately 2 years old. [ 19 ] The judge who issued the divorce judgment and made the collateral parenting order was clearly relying on the agreement of the parties to the effect that each of them was equally suitable to parent their child but that, at least for the moment, the child would primarily reside with her mother.

Having met the threshold for a re-hearing of parenting issues, and since both parties were, prior to this hearing, joint custodians and joint guardians, there is no legal presumption in favour of the position of either parent. [ 20 ] The original access arrangement was made when the child was a toddler - she is now attending school. The existing access arrangement provides the child with parenting by her father for two week-nights a month and two week-ends a month. In the result, the mother bears a disproportionate burden with respect to schooling, health-centered appointments, and extra-curricular activities.

There is no evidence, however, that the father could not handle such commitments if he were given the opportunity. [ 21 ] At present, the child and her mother are living with her mother ’ s parents on an acreage outside of Edmonton while the mother works and the daughter goes to school in Edmonton. The mother expects to move to Edmonton when she has the financial resources to do so. With this longer range plan in mind, the child ’ s extra-curricular activities are at least somewhat centered in Edmonton, including recreational soccer and riding lessons. In

summary, there is nothing in the child ’ s social circumstances that would stand in the way of a shared parenting arrangement. [ 22 ] The mother states that the child does not favour a shared parenting arrangement. Even assuming that the child ’ s comments to the mother represent the child ’ s real views rather than an attempt to articulate what the parent with whom she is living wants to hear, the views of an 8 year old child are of relatively little weight in establishing a parenting regime intended to be in the child ’ s best interests. [ 23 ] A shared parenting regime would not require a real disruption in the child ’ s life: she would continue to attend the same school

and participate in the same sports. Her mother intends, in any event, to change the child ’ s residence, so the child ’ s removal from the bosom of her extended maternal family is slated to occur whether or not there is a change to shared parenting. [ 24 ] The only real issue is what McLachlin J. characterized as the desirability of maximizing contact between the child and both parents. The theoretical advisability of maximizing such contact is, of course, well established and is reflected in Parliament ’ s policy statement.

However, McLachlin J. was presumably addressing the practical advisability in light of the actual circumstances of the parents and the child. [ 25 ] The evidence on this application is to the effect that the parents have been able, to date, to agree on most issues relating to their daughter. Naturally, there have been some minor disagreements.

For example, despite the mother ’ s misgivings, it is perhaps understandable that the father will allow the daughter to play a complete soccer game rather than only half a game when his daughter is living at his place since she does not have to be up so early at that residence as she does at her mother ’ s current residence. [ 26 ] The mother ’ s concerns, itemized above, center on two issues: health concerns and scholastic concerns. She fears that the daughter ’ s health and safety are imperilled by living with her father and that her daughter ’ s academic advancement is not adequately nurtured by him.

However, the mother has not provided any independent evidence, such as photographs of the alleged unsanitary conditions in the father ’ s residence, school report cards, and reports from the child ’ s family doctor, to support her concerns. [ 27 ] For his part, because the father has relatively little parenting role in his daughter ’ s school week schedule, it is relatively difficult for him to establish that he does take his daughter ’ s scholastic needs seriously. [ 28 ] In the result, the father ’ s application for a shared parenting is adjourned for one year.

During that period, he will have one additional school week-night access. The choice of which night that will be will initially be left to the parents, but if they are unable to agree, the court will decide on which night that additional access will be exercised.

The court ’ s expectation is that if the father had access for two week-nights in a row, his commitment to his daughter ’ s schooling - encouraging her to do her homework, correcting her errors, etc. - might be more observable. [ 29 ] During that period as well, each of the parties will be able to gather more independent evidence to support their position concerning their daughter ’ s best interests and how each can serve them. 5.

Should a bilateral parenting assessment be ordered? [ 30 ] A bilateral parenting assessment should not be ordered. [ 31 ] In coming to that conclusion, I have taken into account the comments of the Supreme Court of Canada to the effect that expert assessments are not routinely required: see paras. 117 and 185 of Young . Those commentaries are particularly apt in the situation here. [ 32 ] The mother ’ s long list of concerns about the cleanliness of the father ’ s accommodation is not an area in which a custody assessor has any special expertise.

What is required is fact-finding which can be quickly, cheaply, and simply arranged with a camera. [ 33 ] The mother ’ s concerns about support for their daughter ’ s scholastic needs can in all likelihood be adequately addressed by the child ’ s teachers. At any rate, that is a good and necessary place to start. [ 34 ] The mother ’ s concerns about the stability of the father ’ s employment is not a matter on which a custody assessor can be of any assistance. Here again, the passage of time will provide its own judgment on stability.

[ 35 ] A bilateral parenting assessment is likely to cost between $20,000.00 and $25,000.00. The mother has declined to provide information about her financial circumstances. The father states that he cannot afford such an assessment. More important than either of these two positions is, however, the fact that this is not a situation where the court requires the assistance of a parenting expert: the child has no identified special needs and the fact issues on which the parents disagree can be determined once evidence is produced. 6.

Costs [ 36 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the delivery of these reasons. Heard on the 28 th day of June, 2012. Dated at the City of Edmonton, Alberta this 12 th day of July, 2012. J.B. Veit J.C.Q.B.A. Appearances: Navdeep S. Virk, Virk Law for Mr. Wickens Yolanda S. Van Wachem, McLennan Ross LLP for Ms. Wickens