Bird v. Bird, 2012 ABQB 526

Court of Queen ’ s Bench of Alberta Citation: Bird v. Bird, 2012 ABQB 526 Date: 20120824 Docket: 4803 150104 Registry: Edmonton Between: Lance Victor Bird Respondent/Plaintiff - and - Serena Dawn Bird (Seiben) Applicant/Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. David Gates _______________________________________________________ [ 1 ] This is an application brought by Serena Dawn Bird (now Seiben) in which she seeks a variation of the April 28, 2012 Order of Browne J. Specifically, the Applicant asks the Court to reduce Mr.

Bird’s access to the children of the marriage by limiting his bi- weekly visits to Friday at 7:00 p.m. until Sunday at 5:30 p.m. (At present, Mr. Bird picks up the children every other Wednesday at 5:30 p.m. and they remain with him until Sunday at 5:30 p.m.) The Applicant also seeks to implement a structured

schedule for the summer months, and variations of Mr. Bird’s child support and s. 7 expense payments. Further, the Applicant seeks contribution to the cost of a nanny commencing July 1, 2012. Finally, the Applicant asks the Court to direct the appointment of a Parenting Coordinator and a direction that the children shall attend counselling. [ 2 ] The Respondent, Lance Victor Bird, filed a cross-application on May 16, 2012, in which he also seeks a variation of the order of Browne J. Specifically, Mr.

Bird seeks a shared parenting arrangement on a rotating one week/one week schedule; a recalculation of child support and the parties respective share of s. 7 expenses annually as of May 1 st ; the requirement that both parties agree to s. 7 activities prior to enrollment; child care to be provided by a 3 rd party day home effective July 1, 2012; an adjustment of the current Christmas holiday access arrangement; and costs.

[ 3 ] Ms. Seiben’s application, as well as Mr. Bird’s cross-application, were heard in Special Chambers on May 31, 2012. At the conclusion of the hearing, the matter was set over to July 12, 2012 for continuation. While some of the outstanding issues have been resolved, and are or will be the subject of consent orders, a further hearing has been scheduled for November 1, 2012 to resolve issues pertaining to the calculation of Mr. Bird’s Guideline Income for the purposes of the Federal Child Support Guidelines. [ 4 ] These brief Reasons relate to the issues of Mr.

Bird’s regular access to the children of the marriage. As previously noted, both Ms. Sieben’s application and Mr. Bird’s cross-application seek a variation of the current order in place in this regard. [ 5 ] The current arrangement regarding Mr. Bird’s access to the children of the marriage has been in place since April, 2010. At that time, Justice Browne varied the previous order of Mahoney J. dated September 24, 2008, and directed that Mr. Bird have access to the children on alternate weekends from Wednesday at 5:30 p.m. until Sunday at 7:00 p.m. She also directed that Mr.

Bird would have access every other Wednesday (the non-weekend access weeks) between 5:00 p.m. and 7:00 p.m. Justice Brown further directed that Mr. Bird should have other reasonable and generous access as may be agreed to between himself and Ms. Seiben. [ 6 ] I have carefully reviewed the affidavit material provided by both parties, as well as the submissions of Ms. Seiben’s counsel and Mr. Bird. Under the circumstances, I am not prepared to change the current arrangement in the fashion requested by either party. The children are young, aged 7 years and 5 years, respectively.

In my view, stability is an important consideration at this stage of their development. [ 7 ] It is clear to me that the relationship between the parties is highly antagonistic. Unfortunately, they have yet to find a way to deal with the important issues confronting them as parents in a mature and respectful fashion. In support of her application, Ms. Sieben has filed affidavit evidence in which she deposes to, amongst other things, alleged behavioural issues with the children. She asks the Court to attribute these behavioural issues to the parenting of Mr. Bird when the children are in his care.

She also raises concerns about the distance between the children’s primary residence with her in Mill Woods and Mr. Bird’s new residence in Spruce Grove. [ 8 ] In my view, neither of these circumstances are sufficient to lead me to conclude that a reduction in Mr. Bird’s access is warranted. While I do not doubt Ms. Sieben’s sincerity in expressing concern about the behavioural issues described in her affidavit material, I view this behaviour as “acting-out” on the part of a young child who is caught in the middle of what can only be described as a high conflict situation between parents.

It is not uncommon, in my experience, for children to “act out” in conjunction with the transition from one parent to the other. As such, they will frequently say things and do things that they believe are what one or other of their parents wants to hear. One must be careful to monitor this type of acting-out behaviour so as to ensure that important clues are not missed that may reflect more serious issues or concerns. However, in this instance, I am satisfied that this “acting out” is the children’s response to Ms. Sieben’s telegraphed messages regarding her own ambivalence about Mr.

Bird’s parenting style and his access time with them. [ 9 ] I am also not satisfied that the geographic distance between the two residences should lead to a change in the current access arrangements. [ 10 ] With respect to Mr. Bird’s cross-application on access, I note that he currently has access to the children for 4 nights and approximately 4.5 days every two weeks. By agreement, the parties have decided that the bi-weekly Wednesday evening access should be extended to an overnight visit with Mr. Bird picking the children up at 5:30 p.m. on Wednesday evening and then driving them to school on Thursday morning.

In the result, Mr. Bird has the children for 5 nights and approximately 5 days every two weeks. By my calculation, this amount to roughly 35% of the time, with Ms. Seiben having the children for approximately 65% of the time, not including Christmas and other holiday time. While this is not a 50-50 arrangement, in my view it comes very close. [ 11 ] I am not prepared at this time to disrupt the current arrangement and move to a full shared parenting arrangement.

While this may well be an appropriate thing to do somewhere down the road, I do not believe that it is in the children’s best interests at this time. [ 12 ] Successful shared parenting arrangements require the parents to truly partner in their parenting of the children. This type of partnership requires strong and effective communication and an ability to consistently place the best interests of the children at the forefront of every decision. While I am hopeful that Ms. Sieben and Mr.

Bird will be able to reach this level of cooperation at some point in the future, I do not believe that they are ready to deal with a shared parenting arrangement at this time. I would simply add that I do

not have any doubt as to the sincerity or good intentions of either Ms. Sieben or Mr. Bird in terms of wanting to be good parents. [ 13 ] The Application brought by Ms. Sieben and the cross-Application brought by Mr. Bird, to vary Mr. Bird’s access to the children are both dismissed. [ 14 ] Counsel may speak to costs at the conclusion of the balance of these applications. Heard on the 31 st day of May, 2012. Dated at the City of Edmonton, Alberta this 21 st day of August, 2012. M. David Gates J.C.Q.B.A. Appearances: Diana J. Gosselin Diana J. Gosselin Professional Corporation for the Applicant/Defendant Lance Victor Bird Appeared on his own behalf for the Respondent/Plaintiff