Hansch v. Martin, 2012 ABQB 745

Court of Queen ’ s Bench of Alberta Citation: Hansch v. Martin, 2012 ABQB 745 Date: 20121203 Docket: 4803 151474 Registry: Edmonton Between: Melanie Ann Hansch Plaintiff - and - Greg Matthew Martin Defendant Corrected judgment: A corrigendum was issued on December 10, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] This is an application for overnight access to the children of the marriage every second weekend from 5:00 p.m. on Friday until Sunday at 5:00 p.m., and for a direction that the restriction with respect to his girlfriend not being involved in that access be removed. The father also seeks compensatory time for access that has been previously withheld improperly by the mother; as well as for specified access time with the children on holidays, in particular for the upcoming Christmas holidays.

[ 2 ] These applications are opposed by the mother, who also seeks to hold the father in contempt for disobeying my October 2011 Order which required that the father ’ s girlfriend not to be involved in the access visits. The mother opposes overnight access submitting that the status quo should remain in place which sees the father exercising access every Sunday from 10;00 a.m. to 4:00 p.m. The mother also seeks to have the Restraining Order granted on October 12, 2010 continue to be in full force and effect. This Restraining Order limits the contact between the father and the mother.

These applications are all brought in the context of my case management of this file, which has had a long history in Case Management. Analysis [ 3 ] With respect to my last Order of October 3, 2011, that Order also contained a proviso that the father was relocating to live with his cousin in Beaumont, and that the father would arrange for the cousin to file an Affidavit in these proceedings describing his living accommodations, as well as providing pictures of the residence.

Neither of these matters occurred. [ 4 ] The father did relocate apparently with his cousin for a period of six months, but in May 2012 rented a five bedroom home with his girlfriend, [now his common law spouse].

Additionally her two children from a previous relationship and her ex husband live in the basement of that house which is a five bedroom home. [ 5 ] Accordingly it has become more difficult to deal with the father ’ s girlfriend now that they live together, and the mother alleges that the father ’ s common law spouse is there during access times yelling at the children and constantly fighting with the father. The mother also alleges that the common law accompanies the children when they go on outings with their father, and on one occasion, the common law was left alone with one of the children.

The mother alleges that the common law spouse frequently yells at the children and does not like the children. The mother deposes that the children call the common law a “ monster ” , and some of them start crying when they start talking about her. [ 6 ] The three children of the marriage are presently 7 ½ , 4 ½ and 2 ½ years old. These parties have had a history of some considerable alleged violence in their relationship previously. Police have been called with respect to a 2010 incident where the common law spouse was alleged to have threatened to kill the mother and the children.

No charges were laid however and the mother was simply asked to leave the father ’ s residence. It is also alleged that on the 23 rd of September 2012 during an access visit pickup of the three girls that the father called the mother a “ fucking bitch ” in front of the children. As a result the children were upset, and the mother has not provided the children for access visits since the 23 rd of September 2012 pending my court ruling in this matter.

The mother also alleges in her Affidavit that the oldest child told her that he was going to take the children away from the mother. [ 7 ] Both the common law and the mother gave viva voce evidence before me essentially making further allegations and denying the allegations being made against them. What was clear from the viva voce evidence is that there is real animosity between the father ’ s new common law spouse and the mother. [ 8 ] The oldest child of the marriage is 7 ½ years of age, and the second child is 4 ½ years of age.

Although children of tender years obviously should not be exposed to such scenes which have allegedly occurred in this matter, or anything of the sort, they are also very easily influence by either parent.

There has been an obvious increase in the involvement with the access time of the children by the father ’ s new common law, and this has only increased since May 2012 when the common law, her ex-husband, the father and the common law ’ s two children ages 12 and 10 from the ex-husband ’ s relationship have all moved in together essentially in a five bedroom house, although the ex-husband and the two children live in the basement. [ 9 ] At one level this indicates that the common law spouse can accommodate others, although at another level this living arrangement trumps even reality television. [ 10 ] I have decided in these circumstances that a bilateral custody assessment is necessary in order to make any sense of the present situation in relation to what is occurring with respect to the children.

The cost of the bilateral custody assessment will be

advanced by the mother ’ s family, and the father ’ s half share of the bilateral custody assessment costs will be added to the arrears presently owing by the father in child support. [ 11 ] Until that assessment is complete however in approximately four to six months, there will be no overnight access visits, and access visits will continue from 10:00 a.m. until 4:00 p.m. every Sunday as previously ordered in October 2010.

I have concluded that it is not possible to effectively limit the involvement of the common law spouse any longer so until the bilateral assessment in completed, there will be no more restriction on the common law spouse being involved in the access visits. The mother will not be able to withhold access visits any longer on this basis since he has not had the children on Christmas day for three years. [ 12 ] As for Christmas access, the father would like the children on Christmas day. The mother objects offering instead Christmas Eve.

I direct that the children will be with the father on Christmas day, Tuesday December 25, 2012. There will be no further compensatory access visits in lieu of the access visits withheld from the father since late September 2012, partly because this issue had to be brought back in any event and decided by the Court. [ 13 ] When the results of the bilateral assessment are complete, the Court will revisit the application of the father to have extended overnight visits with the children. The Restraining Order will also remain in effect for another year. Heard on the 28 th day of November, 2012.

Dated at the City of Edmonton, Alberta this 3 rd day of December, 2012. Donald Lee J.C.Q.B.A. Appearances: Eleanor K. Boddy, Q.C.

Law Office of Eleanor K. Bdody for the Plaintiff Michelle Freebairn Venutre Law Group for the Defendant _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice Donald Lee _______________________________________________________ Signed date corrected to December, 2012