GS v. BG, 2012 ABQB 532

Court of Queen ’ s Bench of Alberta Citation: GS v. BG, 2012 ABQB 532 Date: 20120823 Docket: FL03 29495 Registry: Edmonton Between: GS Applicant - and - BG Respondent Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] GS and BG are the parents of 8 year old GG. They each apply for different variations of the existing custody and access

arrangements concerning GG. [ 2 ] The parties lived together from about 1999 to 2005. Their home was in Stony Plain, Alberta. GG was born in 2004. When he was about a year and a half old, the parties separated. Not long after the separation, Ms. GS moved with GG to Edmonton. She worked at a restaurant initially. In September 2006, she enrolled at the University of Alberta. She graduated in December 2009. While at school, she worked in part time jobs, laterally with the City of Edmonton. On graduation, she continued with the City and obtained full time employment with the City in February 2011. [ 3 ] Mr.

BG continued to live in Stony Plain after the parties separated. He has remarried. His wife has a daughter from a previous marriage. She is about a month younger than GG. Mr. BG and his wife also have had a child who is four years old. Mr. BG works as a welder. [ 4 ] The parenting arrangements concerning GG were the subject of a consent order of the Provincial Court entered about a year after the parties separated. It provided that GG would live with his mother from 7:00 a.m. Monday to 4:00 p.m. Friday each week. From 4:00 p.m. Friday to 7:00 a.m. Monday, he would live with his father. Mr.

BG would also have access on Wednesdays from 6 p.m. until 8:30 p.m. The order contained specific drop-off and pick-up arrangements. It also contained arrangements concerning holidays and telephone access of the non-access parent during the access parent ’ s access time. [ 5 ] This order remained unchanged until October, 2011 when by an Order in these proceedings the hours of the Wednesday access were changed to 6:00 p.m. to 7:30 p.m. and the end time for Mr. BG ’ s weekend access was changed from Monday morning at 7:00 a.m. to Sunday evening at 7:00 p.m. [ 6 ] Ms.

GS now seeks to have weekend access every other weekend in addition to her weekday access. She also seeks adjustment to the arrangements concerning holidays and changes to some other details of the arrangements. [ 7 ] Mr. BG seeks a shared parenting regime in which GG would live one week with Ms. GS and the next with Mr. BG. He seeks to have the Court direct that Ms. GS establish her residence in Stony Plain to facilitate the proposed shared parenting. GG would move from his current school in Edmonton to a Stony Plain school. Alternatively, Mr.

BG proposes that the existing arrangement be almost reversed so that GG would live with him during the week and with Ms. GS on weekends – but only every other weekend. In the further alternative, if the Court finds neither of those options appropriate, Mr. BG seeks to have the existing arrangement stay in place with the only changes to the arrangements concerning holidays. [ 8 ] Which of the proposed arrangements is in GG ’ s best interest? [ 9 ] In my view the GG ’ s best interests are not difficult to ascertain. For the better part of 7 years, GG has lived with his mother in the same part of Edmonton.

He attended day care, kindergarten, and Grades 1 through 3 at the same school. In Grades 1 and 2, his performance in school was satisfactory but there was very considerable room for improvement. His report cards contain negative comments about his ability to focus and behave appropriately in class. However in Grade 3, the year he has just completed, he improved tremendously. He achieved very considerably better marks. There are no negative or concerned comments in the report cards.

It appears that GG, after a worryingly slow and shaky start, has now caught on to school. [ 10 ] There is very little basis in the evidence for anything but speculation as to why this has happened. Theories were suggested by the parties in their evidence. I am not prepared to come to any conclusion. In my view, however, it is extremely important to the decision I must make that this positive and significant change has happened – and that it has happened recently – regardless of why it has happened.

It constitutes a strong reason for maintaining GG in the school environment in which he appears to have blossomed, and not to risk a reversal of this recent positive development by making a change to a new school. [ 11 ] Mr. BG testified that he understood when Ms. GS and GG moved to Edmonton that it was a temporary arrangement – that Ms. GS would move back to Stony Plain when she finished university. The rest of the evidence does not support his testimony in that regard. There was no suggestion that the custody arrangement ordered in October 2006 would be temporary. Ms.

GS had been in Edmonton for some months by that time. If the arrangement included an undertaking by Ms. GS to move back to Stony Plain at some

point, it is curious that was not stated in the Order. Further, Ms. GS finished University in December 2009 – 2 ½ years ago. Yet there was no complaint by Mr. BG that she was not honouring a commitment to move back to Stony Plain for at least 2 years after her graduation. [ 12 ] But even if it was agreed in 2005 that Ms.

GS ’ s move to Edmonton would be temporary, which I find it was not, such an agreement would not justify making a order contrary to GG ’ s best interests. [ 13 ] The testimony of both parties referred to incidents which have occurred over the many years of the existing arrangement in an effort to suggest that the other parties ’ parenting skills may be wanting. Most of the incidents showed nothing more than that these parties have occasionally encountered difficulty being civil with each other. This is evidence of a fact that no one doubts – parenting after separation is a difficult and stressful undertaking.

In my view, most of the incidents referred to are irrelevant to the question of GG ’ s best interests. [ 14 ] There was nothing in the evidence to justify the conclusion that either Ms. GS or Mr. BG is anything other than a fully competent and responsible parent. Neither was there anything to establish that as far as physical security is concerned, GG ’ s interests would be better served in one home over the other. [ 15 ] The question is in my view settled by the previously mentioned point concerning GG ’ s schooling and by the fact that the status quo has remained unchallenged and unchanged for at least 6 years.

I find it to be in GG ’ s best interest that he continue to live primarily with Ms. GS and attend the school he has attended for the last 4 years. [ 16 ] As to access, it is of course important that GG has as much contact with each of his parents as circumstances permit. Mr. BG has had very significant access. GG has been with Mr. BG every weekend and Wednesday evening. Indeed, GG has probably spent a considerably greater number of waking hours with Mr. BG than he has with Ms. GS under the current arrangement. Ms. GS ’ s practical access would be about 5 hours a day for 4 days a week - about 20 hours a week. Mr.

BG ’ s practical access on Friday, Saturday and Sunday each week would be well more than 20 hours. [ 17 ] In my view, GG ’ s interests would be best served if Ms. GS had one weekend access each month in addition to the week day parenting time. I realize that could create a problem if GG continues in the pond hockey program in which he has been involved for the last 2 winters. I direct that if GG is involved in pond hockey in Spruce Grove in the winter, Ms.

GS is to ensure that he attends the pond hockey session that occurs on the Saturday of her access weekend unless he is unwell. [ 18 ] The parties both sought greater precision than the existing order offers concerning holidays. In the terms of the order hereafter set out, I have provided it. [ 19 ] Accordingly, I order as follows: a. GG shall continue to have his primary residence in Edmonton with Ms. GS. b. Mr.

BG shall have access except on the first weekend which falls completely within each calendar month (that is, the weekend where both Saturday and Sunday are in the same calendar month) from Friday at 6:00 p.m. until Sunday at 5:00 p.m, except that if Mr. BG ’ s access weekend includes Mother ’ s Day, his access shall end on Mother ’ s Day at 10:00 a.m. c. Where Mr. BG ’ s access weekend is a long weekend involving a Monday holiday (other than Thanksgiving and Easter Monday), Mr. BG ’ s access shall be extended to 5:00 p.m. on the Monday. d. Mr. BG shall have access from 6:00 p.m. to 7:30 p.m. every Wednesday.

e. If GG is involved in pond hockey in the winter, Ms. GS will ensure that he attends the pond hockey session that occurs on the Saturday of her access weekend unless he is unwell. f. The exchange place at the beginning and the end of each of Mr. BG ’ s access times shall be the Tim Horton ’ s at 190 Street and Stony Plain Road, Edmonton. g. Both parties shall permit GG to call the non-access parent no less than once per day when GG is with them. h. In odd numbered years, GG shall spend July with Mr. BG and August with Ms. GS. In even numbered years, GG shall spend July with Ms. GS and August with Mr. BG. i.

In odd numbered years, GG shall spend the first half of the school Christmas break, the Spring break, and any other break of at least 5 days duration with Mr. BG and the second half with Ms. GS, and vice versa in even number years, except in odd numbered years, GG shall spend from 5:00 p.m. Christmas Eve until 12:00 noon Christmas Day with Mr. BG and from 12:00 noon Christmas Day until 12:00 noon Boxing Day with Ms. GS, and vice versa in even number years.

At noon on Boxing Day, GG will either stay with the same parent or move to the other parent, depending on whether the parent he is with is to have him for the half of the Christmas school break in which Boxing Day falls. j. In odd numbered years, GG shall spend his birthday with Mr. BG. If his birthday falls on a day that would not otherwise been an access day for Mr. BG, Mr. BG will have access on that day from 10:00 a.m. until 7:30 p.m. unless it is a school day in which case he shall have access from 5:00 p.m. until 7:30 p.m. k. In even numbered years, GG shall spend his birthday with Ms. GS.

If his birthday falls on a day that would not otherwise be an access day for Ms. GS:

i) if it is a Saturday, she shall have access from 10:00 until 7:30 p.m., ii) if it is a Sunday, Mr. BG ’ s access that weekend will end at 10:00 a.m., iii) if it is a Wednesday, Mr. BG ’ s access will be cancelled that day, and iv) if it is a Friday, Mr. BG ’ s weekend access will not commence until Saturday morning at 10:00 a.m. l. If either parent is not able to exercise access as entitled under this Order, they shall give the other parent at least 24 hours notice to that effect. [ 20 ] I have not mentioned Father ’ s Day because it is the third Sunday in June and therefore Mr.

BG will always have access in any event. [ 21 ] The parties have been discussing the possibility of GG obtaining counselling from a Psychologist. Apparently, they are agreed that this could be helpful to assist GG in dealing with the fact that his parents are separated. I do not believe the evidence provides sufficient basis for me to find that such counselling is needed.

In my view, it is best left to the parties to determine whether it should be arranged and, if so, to arrange it. [ 22 ] Counsel advised that the parties have agreed on all the elements of a variation to the child support order and needed only to know the result of the custody and access variation application to complete the order. The formal order may contain the child support provisions they have agreed to. [ 23 ] Ms. GS has achieved significantly greater success in this application than Mr. BG. I order that she be entitled to costs which I

fix at $1,000.00 plus disbursements. Heard on the 22 nd day of August, 2012. Dated at the City of Edmonton, Alberta this 23 rd day of August, 2012. Brian R. Burrows J.C.Q.B.A. Appearances: D. Baradziej for the Applicant J. Chapman for the Respondent