Dempster v. Dempster, 2012 ABQB 481

Court of Queen ’ s Bench of Alberta Citation: Dempster v. Dempster, 2012 ABQB 481 Date: 20120807 Docket: 4814 003176 Registry: St. Paul Between: Karen Amber Dempster Plaintiff (Respondent) - and - Damian Glenn Dempster Defendant (Applicant) _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Dempster applies for specified access to his children as well as for access to the children ’ s medical, dental, school and counselling records, for 90 days ’ notice of the mother ’ s intention to relocate the children from St. Paul and for updated contact information including the mother ’ s residential address and telephone information. [ 2 ] Relying on what she describes as his irresponsible behaviour as a parent, Ms. Dempster wishes to limit his access to one Saturday to Sunday week-end a month.

She does not want to provide any information about the children to their father because she says that it is of no practical concern or relevance to him. She does not want to provide her telephone number to Mr. Dempster because she says that he harasses her.

[ 3 ] Mr. Dempster ’ s application is allowed, in part. In light of the absence of access for approximately one year, Mr. Dempster ’ s summer access for 2012 will be limited to one week in August which will not be the week immediately prior to the children returning to school. Mr. Dempster will pick the children up from Edmonton on a Sunday and return them to Edmonton on a Sunday one week later. In 2013, assuming that Mr. Dempster has exercised all of the access provided in this decision, Mr.

Dempster will have three weeks access with the children, being the first three weeks of July unless the parties can, prior to May 1, 2013, agree on a different 3 week period. [ 4 ] Mr. Dempster is entitled to access to the children ’ s medical, dental, school and counselling records, and to information about the children ’ s current health care providers. Every non-custodial parent is entitled to that minimum type of information. Moreover, access to that information could be crucially important to the children ’ s welfare while the children are on an access visit with their father. [ 5 ] Mr.

Dempster will have telephone contact with his children once a week on Fridays, between 6 and 7 p.m.; other than that telephone access, Mr. Dempster will only contact Ms. Dempster in writing. 1. Background [ 6 ] The parties who were married in 2005 have three children, a 7 year old girl, a 6 year old boy and a 4 year old girl. They separated in January 2009. At the time of separation, the parties lived in Stony Plain, but very shortly thereafter, they separately moved to Edmonton. In April 2009, apparently because she was unable to find suitable work in Edmonton, the mother moved to St.

Paul where she was able to find minimum wage work and support from extended family. St. Paul is approximately a 2 ½ hour one way drive from Edmonton. [ 7 ] In January 2010, the father moved to Castlegar B.C. to live with his parents. Castlegar is approximately a 13 hour one way drive from St. Paul. In April, 2010, the children spent spring break with their father; however, the youngest child returned with a severe ear infection. During the summer of 2010, the father had 5 weeks of access, although the mother says that each of these visits was fraught.

The father had Thanksgiving access with the children; the mother asserts that the children were neglected during that visit. [ 8 ] The mother asserts that, after serving the father with divorce papers in December 2010, she received death threats from the father, and that the police informed her that she did not have to maintain any type of contact with him, and, relying on that advice, she refused to accept the father ’ s phone calls and correspondence. It is not clear why the parties ’ divorce has not been finalized.

Since the service of the divorce documents, there has been very little contact between the father and his children. [ 9 ] The mother allowed the father one week of access in July 2011. She indicates that the father had threatened to keep the children longer than the one week they had agreed to, and that when the children were returned they all suffered from serious sunburns to their arms, legs, faces and backs.

On another access occasion, the mother states that one of the children was returned with an infected ankle blister. [ 10 ] There were a few hours of access over the Christmas holiday in December 2011, and that access was, at the mother ’ s insistence, supervised by the children ’ s maternal grandfather. [ 11 ] The father is employed as a short haul truck driver and has been in that line of work for a considerable period of time.

The mother is of the view that the father has a problem with alcohol, but she does not drink much alcohol herself and does not know of any criminal charges or convictions brought against her husband relating to alcohol. The mother states that the father has not regularly been paying child support. 2. Specified parenting time [ 12 ] It is, of course, unfortunate for their children that the parents have chosen to live so far away from one another; that distance seriously hampers the ability for each parent to have maximum contact with the children. In the circumstances here, the only

arrangement possible is one week-end a month from Saturday to Sunday - other than on a long week-end when the access will be in Edmonton from Saturday to Monday - together with extended summer access. [ 13 ] However, while the mother accepts an arrangement for week-end access (and it is sensible that the access arrangement should be in Edmonton since the parents lived together as a family only in the Edmonton area and, after she relocated to St.

Paul, the mother brought the children to Edmonton for access visits until the father moved to B.C.) the mother does not wish to allow the father any extended summer access because of what she sees as his irresponsibility. On the basis of the evidence available to me on this application, I am not able to agree with the mother ’ s conclusion: while responsible parents will be vigilant to ensure that their children do not suffer from sunburn because of the cumulative effects of sun damage, occasional sunburns are not a damning indictment of parenting ability.

Nor is an infection: it appears that the father treated his daughter ’ s blister with appropriate ointment. There is no evidence about the etiology of the yeast infection.

There is no evidence that the ear infection from which one of the children suffered in 2010 was due in any way to the father ’ s parenting. [ 14 ] Her affidavits make it clear that the mother has been very controlling over access; for example, she states that the father “ was allowed one week access with the children in July of 2011" . . . “ after [the July 2011 access], I denied the application unsupervised access to the children ” . . . “ the applicant has not seen or spoken to the children since December of 2011.

I have denied the applicant phone access as he has continually chosen to use his calls to harass, threaten and berate me rather than to speak with the children ” . She determined when the access was to be held and where and for what period of time. The father has apparently been equally controlling with respect to child support. Neither of these behaviours is likely to nurture a healthy parenting regime for the sake of the children. [ 15 ] In

summary, from the information provided on this application, there is no basis for denying the father extended summer access. However, in light of the fact that the children have not really been with their father for approximately one year, summer access in 2012 will be limited to a one week period. In order to allow the mother and the children adequate preparation for the new school year, the father ’ s one week access in 2012 will not be the week of August 27.

Unless the parents can agree otherwise, the father ’ s summer access for 2012 will commence on Sunday, August 12 at 10:00 a.m. from Edmonton at a location other than a police station that the parties can agree on. The father will return his children to the location in Edmonton where he picked them up on Sunday, August 19 between 5:00 and 5:30 p.m. [ 16 ] Although the mother agrees that the father can have one week-end access a month, she wants to ensure that the weekend chosen will be based on a

schedule which she declines to provide to the father. Moreover, she wants the children to be available to her “ at all times ” by telephone during the weekend so that she can monitor their well being. Also, she does not want the children to leave Edmonton over the weekend without her written consent. With respect, the imposing of such conditions is not justified by the evidence. If the parties are unable to agree otherwise, the father ’ s week-end access will be the second week-end of every month, commencing on Saturday, September 8, 2012.

The mother will drive the children to Edmonton to a mutually agreed location between 9:30 and 10:00 a.m. on that Saturday, and the father will return the children to that location between 5:00 and 5:30 p.m. on Sunday, September 9. [ 17 ] For the summer of 2013, assuming that he has exercised all of the access provided in this order, the father will have three weeks of access with this children, being the first three weeks of July unless the parties can, prior to May 1, 2013, agree on a different 3 week period. 3.

Information concerning the children [ 18 ] The mother objects to providing the father with any medical, dental, school and counselling information on the basis that, since she is the parent with primary parenting responsibility, such information “ is of no practical concern or relevance ” to the children ’ s father. She also states that she “ has the right to protect and distribute my children ’ s personal information as my own ” . With respect, she has no such rights. These are not solely her children; they are also the applicant ’ s children.

In order to be a more effective and responsible non-custodial parent, it is obvious that the father requires as much information as possible about his children ’ s activities and care. What would happen if the children required emergency medical care while they were with the father during an access visit and the father did not know who his children ’ s family physician was?

Finally, although the mother is currently the child ’ s custodial parent, that might not always be the case; it would be wrong in principle to deny a parent access to basic information about their children. [ 19 ] The mother will immediately provide information about the children ’ s school, family physician, dentist, counselling to the father so that the father can contact each of these agencies and services direct to obtain information about his children.

4. Order requiring 90 days ’ notice of relocation of the children [ 20 ] The mother objects to providing the father with any notice of her intention to relocate with the children. She maintains that this information “ is of no consequence ” to the father. With respect, it is of clear consequence to the father. Any relocation of the children may well constitute a material change of circumstance which would require a court to consider anew what parenting regime is in the best interests of these children.

The mother will therefore provide a minimum 90 days ’ notice to the father of any intention she may have to relocate the children from St. Paul. 5. Contact information. [ 21 ] The mother objects to providing her telephone number to the father. Given the age of the children, the only effective way the father can communicate with them at a distance is by telephone. The mother will therefore provide the father with a telephone number at which he can reach the children once a week, on Fridays, other than the Fridays of his week-end access, from 6 p.m. to 7 p.m.

Any communications between the parents will be in writing. 6. Costs [ 22 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 23 rd day of July, 2012. Dated at the City of St. Paul, Alberta this 3 rd day of August, 2012. J.B. Veit J.C.Q.B.A. Appearances: Colin D. Ouellette, Emery Jamieson LLP for the Mr. Dempster Ms. Dempster on her own behalf