Kostin v Eaket, 2012 ABQB 756

Court of Queen ’ s Bench of Alberta Citation: Kostin v Eaket, 2012 ABQB 756 Date: 20121217 Docket: FL01 10858 Registry: Calgary Between: Crystal Michel Lee Kostin Plaintiff - and - Darwin Michael Eaket Defendant Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C. M. Jones _______________________________________________________ I.

Introduction [ 1 ] This matter involved a series of five domestic special applications. Mr. Eaket ("Eaket") represented himself. Ms. Kostin ("Kostin") was represented by Ms. Laurie Stephen. The applications were heard before me on February 16th, March 14th, March 26th, May 22nd and June 14th, all in 2012 (collectively, the "Applications"). [ 2 ] The issues to be decided included:

1. parenting time with the parties' daughter, Haley Shay Eaket (“Haley”); 2. decision making for Haley; and 3. partner support for Kostin. [ 3 ] The Applications were necessary to address these issues because an unbridgeable gulf had arisen between the parties and because, while Kostin had been diligent in assembling and organizing the necessary evidentiary record, Eaket had not.

In order to rationally entertain the parties' respective requests, it therefore became necessary to issue a series of directions, akin to what might result from case management, with the objective of assembling an evidentiary base upon which adjudication of the issues could proceed. II. Background A. Living Arrangements [ 4 ] Eaket and Kostin lived together from December 2004 until January 2010. They were never married. They co-habited in Eaket's home in Acme, Alberta. Haley was born on [...], 2004. Kostin has two other children from a prior relationship. [ 5 ] Kostin and Haley currently live in Airdrie.

Eaket currently lives in Acme. It takes approximately 45 minutes to drive between these two communities. B. Parenting Arrangements [ 6 ] As of the commencement of the Applications on February 16, 2012, Haley had been living with Kostin. Pursuant to an Order of Mr. Justice V.

Hembroff dated April 29, 2011 (the "Hembroff Order"), Eaket currently has unsupervised access to Haley every Saturday between 10:00 a.m. and 7:00 p.m. [ 7 ] Prior to the Hembroff Order, Eaket had had, for reasons I describe below, more or less access time with Haley than is contemplated in the Hembroff Order. [ 8 ] Eaket's access time with Haley first changed as a consequence of an Emergency Protection Order ("EPO") obtained by Kostin on January 21, 2010. Kostin obtained the EPO when she moved away from the parties' residence at Acme. [ 9 ] The EPO expired on April 30, 2010.

While it was in force, Eaket was prohibited from having communication or contact with Haley, as well as Kostin. [ 10 ] After the expiration of the EPO, Haley stayed with Eaket every other weekend and for a few hours on Tuesday evenings. [ 11 ] Eaket's parenting time with Haley changed again on September 15, 2010, in response to a No Contact Order issued against him on that date. That No Contact Order arose from assault charges laid against Eaket in respect of an incident involving Kostin. C. The Parties' Parenting Positions

[ 12 ] Earlier in these proceedings, Kostin's and Eaket's views regarding access to and parenting of Haley were less divergent. In her Affidavit of July 8, 2010, Kostin expressed the view that Eaket's first three visits with Haley should be supervised. Assuming those visits were successful, she had proposed a regime which was not dissimilar from that sought by Eaket, except that Eaket sought midweek evening visits with Haley, which Kostin opposed. [ 13 ] As matters progressed towards the Application of February 16, 2012, the gap narrowed even further.

Below I recite Kostin's proposals of January 26, 2012 and Eaket's counter proposal attached to a document filed by him with the Clerk of the Court on January 27, 2012: 1. Kostin proposed joint custody of Haley. Eaket did not object. 2. Kostin proposed that Haley would have her primary residence with Kostin. Eaket did not object. 3. Kostin proposed that Eaket would have parenting time with Haley every other weekend from 6:00 p.m. Friday until 6:00 p.m. Sunday. Pick up and drop off was to occur in the parking lot at the McDonald's restaurant in Airdrie.

Eaket did not object, except that he wanted the parties to share driving responsibilities such that pick up would take place inside McDonald's instead of in the parking lot and drop off would take place inside the Road Runner convenience store in Acme. 4. In those weeks during which Eaket would have no weekend access with Haley, Kostin proposed that Eaket have parenting time with Haley from after school on Tuesdays until 7:00 p.m. that evening, with exchange to take place in the McDonald's parking lot.

Eaket did not object, except that he also wanted time with Haley on Thursdays, after school until 7:00 p.m., with the exchange to take place inside McDonald’s and not in the parking lot. 5. Kostin proposed that during summer 2012, Eaket would have parenting time of one week in each of July and August. Eaket wanted half of Haley's summer holidays to be spent with him. 6. With respect to Christmas, Kostin proposed that Eaket have parenting time with Haley from Christmas Eve at 7:00 p.m. until 2:00 p.m. on Christmas day in even years.

In odd years, she proposed that Eaket have parenting time with Haley from 2:00 p.m. on Christmas day until noon on Boxing Day. Eaket agreed with that proposal except that he wanted pick up and drop off to take place inside McDonald's restaurant, driving to be shared equally, return of Haley by him at 6:00 p.m. on Boxing Day (rather than noon) and the balance of Christmas holidays to be shared equally. 7. Kostin proposed that Eaket alternate parenting time with Haley on Thanksgiving Day, Eaket having Haley in odd years and Kostin having Haley in even years.

She proposed that pick up and drop off occur in the McDonald's parking lot at 9:00 a.m. and 6:00 p.m., respectively. Kostin proposed a similar arrangement for Easter Day. Eaket proposed that Kostin have parenting time with Haley every Thanksgiving Day and that he have parenting time with Haley every Easter Day. He proposed that driving be split and that pick up and drop off be inside McDonald's and Road Runner. 8. Kostin advanced proposals regarding parenting time on Haley's birthday.

Eaket agreed, except driving was to be shared equally and pick up and drop off was to take place inside McDonald's and Road Runner, as the case may be. 9. Kostin advanced proposals regarding parenting time with Haley on Mother's Day and Father's Day. Eaket agreed, except that driving was to be shared equally and pick up and drop off was to take place inside McDonald's and Road Runner, as the case may be. [ 14 ] It will be clear that: 1. Kostin's proposal involved substantially more parenting time for Eaket than he had had during prior months;

2. the major substantive differences involved an extra few hours one night every second week and the extent of Eaket's parenting time during summer holidays and during the Christmas break; and 3.

The only other significant differences were whether pick up and drop off took place in a parking lot or inside the business establishment annexed to that parking lot and whether Eaket did all the driving or they shared it. [ 15 ] In addition to his suggested modifications to Kostin's parenting plan, Eaket proposed: 1. nightly phone calls by him to Haley; 2. a prohibition on Haley being moved more than 70 km away from him; 3. weekend access (whomever has it) to include any applicable holiday Monday; 4. alternating Halloween parenting time with Haley, together with a specified pick up and drop off protocol; and 5. shared decision making regarding all aspects of Haley's life, including all matters relating to her schooling and extra-curricular activities. [ 16 ] At para. 51 of her Affidavit of January 31, 2012, Kostin sums up the situation presented to me at the Application of February 16, 2012: The Applicant and I have been unable to agree on almost anything with respect to Haley… D.

The Actions [ 17 ] This matter began with separate actions commenced by Eaket (Action No. FL01-10348) and by Kostin (Action No. FL01-10858), which, during the Application before me on March 26, 2012, I ordered consolidated as action no FL01-10858. 1. Eaket's Actions [ 18 ] In Action No. FL01 - 10348, to be heard first on June 29, 2010 (with the parties to appear before the Dispute Resolution Officer in Calgary on June 21, 2010), Eaket sought parenting, contact and shared decision making. Eaket appears to have abandoned his application at that time.

In a letter to this Court, Kostin's counsel alleges that this abandonment was attributable to the above-mentioned criminal assault charges filed against Eaket in relation to Kostin. [ 19 ] Eaket's second claim under this action number was directed to a domestic special application set for December 3, 2010. Eaket failed to file a Letter to the Court and his application was struck by the Clerk. [ 20 ] Kostin, in response to each of Eaket's claims, requested child and partner support, asserting that her income was $1,200 in each of 2007 and 2008, $21,782 in 2009 and expected to be approximately $38,000 in 2010.

She sought child and partner support based on her assertion that Eaket's income was approximately $95,000. Kostin asserted that Eaket’s income was likely higher than $95,000, arguing that business expenses claimed by Eaket's wholly owned corporation, 1396775 Alberta Ltd. ("1396775"), were likely incurred for Eaket's personal benefit. She sought financial disclosure.

[ 21 ] It is important to note that Eaket had been employed in the oilfield service industry earning $96,316 in 2006 and $81,136 in 2007. His employment terminated and it appears that in 2008 he began to carry on business through 1396775. [ 22 ] Further, Kostin sought exclusive decision making responsibility in some areas and was prepared to accept shared decision making in others. She also requested exclusive use of a holiday trailer and two horses. 2. Kostin's Action [ 23 ] Kostin initiated Action No. FL01-10858. She asserted that Eaket held property for her under a constructive trust.

Eaket also filed a Claim under Action No. FL01-10858. Mr. Justice Hembroff directed that Eaket's application under Action No. FL01-10858, which involved matters of parenting and contact, proceed to a domestic special application. It appears that Eaket did not pursue that application. [ 24 ] Eaket's second claim under Action No. FL01-10858 resulted in the Application of February 16, 2012. 3. Request for Case Management [ 25 ] Kostin's counsel sought case management in respect of this matter.

She asserted that case management would allow Kostin to address Eaket's attempts to advance what she referred to as "numerous unnecessary and procedurally incorrect Claims which have cost Ms. Kostin a significant amount of legal fees." [ 26 ] Eaket opposed having the matter proceed by way of case management. He expressed the view that all of the parties' issues could be dealt with in the time allocated for the half-day domestic special application to be heard on February 16, 2012. [ 27 ] Case management was not ordered, pending the outcome of the application on February 16, 2012. III.

Overview of the Applications [ 28 ] It is important for purposes of my decision to provide some clarification regarding the need for no fewer than five Applications, ranging in length from two hours to four and a half hours, extending over a period of five months. A.

The February 16, 2012 Application (the "February 16th Application") [ 29 ] At this Application, I met the parties and learned that Kostin's relationship with Eaket had involved at least two episodes of family violence, as mentioned above. [ 30 ] Eaket made it clear that he was seeking substantially more parenting time than was currently available to him. He pointed to Kostin's proposal of January 25, 2012 regarding parenting time with Haley.

He expressed the view that, as a result of the exchange of communications regarding parenting time which took place in late January 2012, the gulf between the parties was not that great. [ 31 ] He did not understand why, the parties having apparently moved much closer to a compromise regarding parenting, Kostin had rejected any possibility of further compromise and wished to maintain arrangements set forth in the Hembroff Order.

I learned that Kostin's counsel had put her proposals for parenting, described in detail above, to Eaket on January 26, 2012 in the form of a "without prejudice except as to costs" letter (a "Calderbank letter"). Eaket responded by proposing significant revisions as described above and the

stage was thus set for the February 16th Application. [ 32 ] For her part, Kostin sought direction regarding production by Eaket of financial information that had not been forthcoming. Questioning took place on August 24, 2011, with Eaket giving 76 undertakings (the "Undertakings"). Full disclosure by Eaket obviously was essential to the proper adjudication of claims for child support, partner support and property division. [ 33 ] I learned that Eaket had been ordered by Mr. Justice A.D. Macleod on August 12, 2010 to pay interim

section 3 child support of $500 per month and interim

section 7 child support of $200 per month (the "Macleod Order"). I also learned that, as of January 30, 2012, Eaket was in arrears in these payments in the amount of $6,479.78. [ 34 ] With respect to the Undertakings, I learned at the February 16th Application that Eaket had not responded in any manner to 56 of the 76 Undertakings and that nine other responses to the Undertakings were considered by Kostin to be inadequate. [ 35 ] Kostin's counsel had been unsuccessful in her attempts to obtain this information.

In response, Eaket indicated that he either did not understand the Undertakings or simply had not had enough time to comply. [ 36 ] Eaket's claims of inability, based on his work commitments, to respond to the Undertakings and to comply with express directions of this Court was to become a recurring theme.

As further Applications ensued, it became apparent to me that Eaket's ability and/or willingness to comply with Orders of this Court directed at moving matters towards a satisfactory resolution were secondary to his other commitments and objectives, with the exception of his objective of securing more parenting time with Haley. [ 37 ] At the February 16th Application, I gave the following directions: 1. any decision regarding Eaket's request for increased access to Haley (strongly opposed by Kostin) be deferred until March 14th, 2012.

My objective was to have more opportunity to fully explore Kostin's reasons for opposing Eaket's requests; 2. Kostin's counsel provide the Court with additional authorities which she believed justified Kostin's entitlement to partner support; 3. Eaket provide income tax returns for 1396775; 4. Eaket provide personal income tax returns not already provided; 5. Eaket provide financial statements for 1396775 for fiscal periods since incorporation; 6. If Eaket did not comply with the above directions, he was to appear before me on March 14, 2012 and show cause why he should not be held in contempt of Court; 7.

Kostin's counsel provide Eaket with a list of his outstanding Undertakings; 8. Eaket comply with those outstanding Undertakings or explain to this Court, in writing, why he could not comply; and 9. Kostin's request that I impute income to Eaket for partner support purposes be deferred to March 14, 2012, at which point, based

on my review of authorities to be provided by her counsel, I would consider making an interim Order imputing income to Eaket. B. The March 14, 2012 Application (the “March 14th Application ”) [ 38 ] At the March 14th Application, I learned that Eaket had not complied with my Order of February 16, 2012. He had neither complied with all of his Undertakings nor provided any written explanation of why he had been unable to do so. He merely indicated that his work commitments had come first. [ 39 ] Kostin sought imputation of income to Eaket in the amount of $90,000 for purposes of partner support.

Prior to the March 14th Application, I had had an opportunity to review the authorities that, at the February 16th Application, I had directed Kostin's counsel to provide to me. The decisions she provided included:

a) Hamilton v. Wallace, 2008 ABQB 90 , 52 RFL (6 th ) 331;

b) Gordon v. Towell, 2009 ABQB 415 , 74 RFL (6 th ) 264;

c) Stevenson v. Winkler, 2011 ABQB 693 ;

d) Shunamon v. Diegel, 2008 ABQB 291 , 453 AR 199;

e) F.(E.V.) v. M. (W.), 2010 ABQB 451 , 498 AR 132;

f) Freake v. Riley, 2010 ABQB 652 , 504 AR 335; and

g) Fitzsimmons v. Boulter, 2010 ABQB 614 . [ 40 ] Kostin's counsel had provided Eaket with copies of these cases. Eaket, for his part, provided no contrary authority. Similarly, he tendered virtually no evidence to rebut Kostin’s assertions that: (

a) there was no material change in circumstances since the Hembroff Order which would justify altering the parenting arrangements; and (

b) income considerably in excess of that which Eaket reported on his T1 Income Tax and Benefit Return should be attributed to him for partner support purposes. [ 41 ] Eaket's "evidence", being largely anecdotal and amounting for the most part to nothing more than a challenge to prove his contrary verbal assertions wrong, was of no assistance to this Court. [ 42 ] In light of Eaket's non-compliance with my Order of February 16th, at the March 14th Application, I ordered, inter alia , the following: 1. in an effort to ensure that Eaket would not reappear before me and assert once again that he either did not understand what was required of him or had not had time to comply with his obligations, Eaket was to summarize his understanding of his outstanding Undertakings, discussed in Court at the March 14th Application, and to send that

summary to counsel for Kostin no later than March 15, 2012; 2. Eaket was to take reasonable steps and exercise best efforts to comply with his outstanding Undertakings; 3. Eaket was to provide a written response to each Undertaking as well as documentation appropriate to that Undertaking;

4. Eaket was to provide Kostin's counsel with the 2008/2009 T2 Income Tax Return for 1396775; 5. Eaket was to provide Kostin's counsel with 2010 financial statements for 1396775; 6. pending further Order of this Court, income of $90,000 would be imputed to Eaket for purposes of determining partner support; 7. Eaket was to pay Kostin retroactive partner support in the amount of $18,075.00, representing $723.00 per month from February 1, 2010 up to and including February 29, 2012; 8.

Eaket was to pay Kostin partner support of $723.00 per month, commencing March 1, 2012 until further Order of this Court; and 9. retroactive and ongoing partner support would be subject to further Order of this Court, should this Court subsequently determine that Eaket's actual guideline income is different from the imputed amount of $90,000.00 per annum . [ 43 ] Interim partner support was based on imputed income of $90,000 and on the following considerations: 1. Eaket's demonstrated prior ability to earn income from employment, being $96,316 in 2006 and $81,136 in 2007; 2.

Kostin's affidavit evidence, which included: (

a) assertions that 1396775 had reported gross, pre-tax income of $105,048 for its 2009-2010 taxation year; and (

b) bank account statements for 1396775 for 11 months in 2010 showing total deposits of $130,319.72; 3. a complete absence of any contrary evidence or convincing argument from Eaket that would rebut assertions from Kostin's counsel to the effect that expenses for 1396775 should, before distributions to Eaket, be approximately one-third of gross revenue, leaving approximately $90,000 available for distribution to Eaket; 4. application of the concepts relating to child support articulated in

section 18 of the Alberta Child Support Guidelines which, in the case of child support, would direct me to consider the reasonably expected level of pre-tax corporate income for 1396775 as a basis for determining income available to Eaket; 5. my responsibility to ensure that any support order should: (

a) recognize the economic advantages and disadvantages to the parties arising from the relationship and its breakdown; (

b) spread the financial consequences arising from the care of any child of the relationship between the spouses or adult interdependent partners; and (

c) promote the economic self-sufficiency of each spouse or partner within a reasonable time; and 6. the case law addressing entitlement to partner support provided by Kostin's counsel and cited above.

[ 44 ] In an effort to responsibly address Eaket's request for additional parenting time with and decision making for Haley, I also outlined in detail a protocol, which Eaket was directed to and agreed to follow, and which would provide the parties and this Court with information relating to the merits of a Family Law Practice Note 7 Intervention, on the one hand, and an Assessment (bi-lateral and respondent/applicant only) on the other hand. [ 45 ] Eaket agreed to assemble this information and provide it to this Court and to counsel for Kostin.

In an effort to be ready to move forward at our next Application, at which Eaket's report was to be discussed, Kostin's counsel was directed to prepare a draft Family Law Practice Note 7 Intervention Order for consideration. [ 46 ] Kostin's counsel made argument at the March 14th Application regarding costs. She was directed to provide a bill of costs prior to the next Application on March 26, 2012. She was also directed to provide me with a copy of the Calderbank letter sent to Eaket on January 26, 2012. C. The March 26, 2012 Application (the “March 26th Application ”) [ 47 ] We reconvened on March 26, 2012.

Eaket had not complied with the directions in my Order of March 14, 2012 relating to Undertakings and disclosure. Rather, he simply tendered a bundle of documents which he advised were his responses to Undertakings. He did not summarize his understanding of his outstanding Undertakings and he did not provide such a

summary to Kostin's counsel, as I had directed. [ 48 ] An Affidavit filed by Eaket on March 26, 2012, purportedly in response to outstanding Undertakings, provided only limited financial information with a complete absence of any clarifying explanations. It contained nothing which would assist the Court in its attempts to determine Eaket's actual income. Once again, the task fell to the Court and to Kostin's counsel to try to make sense of Eaket's financial position. [ 49 ] Eaket's actions required me to direct counsel for Kostin to review material Eaket provided and advise me of outstanding deficiencies.

Eaket was, once again, directed to provide responses to outstanding Undertakings, based on a review by Kostin's counsel. [ 50 ] Kostin's counsel and Eaket were directed to prepare submissions regarding partner support based on Eaket's (anticipated) responses to Undertakings. [ 51 ] Despite Eaket's objective of securing more parenting time with Haley, he had not secured the information regarding Family Law Practice Note 7 Interventions and Assessments that he had been directed to assemble twelve days earlier.

He was ordered to provide this information on or before May 22, 2012. [ 52 ] In connection with Kostin's request for costs, counsel for Kostin was directed to provide the Court with additional information regarding prior applications. I ordered that the parties be prepared to make submissions regarding costs on May 22, 2012. D.

The May 22, 2012 Application (the “May 22nd Application ”) [ 53 ] Kostin's counsel provided two very detailed, comprehensive and well-organized binders of materials in support of first, her client's submissions regarding costs and second, her client's position regarding the appropriate level of income to be used in determining partner support. Both binders had been made available to Eaket by Kostin's counsel before the May 22nd Application.

Eaket offered no materials, no affidavits and no other evidence by way of rebuttal. [ 54 ] With respect to costs, the materials provided by Kostin's counsel contained copies of all pleadings and supporting materials relating to Eaket's applications, which I had directed her to provide, so that I might review the history of this litigation and its disposition. Kostin’s counsel summarized claims advanced by Eaket on June 21, 2010, August 16, 2010, April 15, 2011 and November 16, 2011.

It is apparent to me from my review of that narrative (uncontradicted in any substantive way by Eaket in his oral submissions) that, with the

exception of the application of November 16, 2011 which led to the February 16th Application before me, Eaket: (

i) abandoned the access component of his application of June 21, 2010; (ii) had his application of August 16, 2010 struck by the Clerk of the Court for failure to file required documentation; and (iii) decided not to pursue his application of April 15, 2011. [ 55 ] Each of Eaket’s aborted claims required Kostin's counsel to respond by way of both document preparation and filing and attendance at Court, usually on short notice. Eaket's explanation for these failed attempts on his

part consisted of nothing more than anecdotes relating to disagreements with his prior counsel and the time commitments imposed by his job. Again, as in the previous three Applications, Eaket's response to well-organized materials and documented argument provided by Kostin's counsel was purely reactive.

He simply had no plausible rebuttal to assertions by Kostin's counsel that he, through his failed attempts to advance his claims, had required the expenditure of considerable sums of money by Kostin. [ 56 ] The May 22nd Application also involved further submissions regarding imputation of income for partner support purposes. Once again, Kostin's counsel took the initiative in providing the Court with material upon which it might decide if income should be imputed to Eaket.

Her binder encompassed no fewer than 24 tabs, as well as a narrative which I found helpful in understanding the basis for her assertions regarding imputation of income. [ 57 ] Kostin’s materials: 1. reviewed and challenged the various expenses that Eaket claimed were incurred by 1396775 and which he asserted should operate, for imputation purposes, to reduce pre-tax corporate income of 1396775 of $132,766 and $138,706 for its 2011 and 2012 fiscal periods, respectively; 2. provided detailed statements and other documentation in support of her position; and 3. advanced the argument that Eaket's reported employment income of $20,723.17 for 2010 and $26,298.83 for 2011 failed to account for his use of corporate assets and funds to supplement his lifestyle. [ 58 ] It is important to note that Eaket's T1 Income Tax and Benefit Returns for 2010 and 2011 disclose a loss from farming operations in each of those two years.

Eaket provided no explanation for those losses, which had the effect of reducing his line 150 income by $13,340.60 for 2010 and by $13,692.36 in 2011. Eaket gave no explanation of what his farming activities involved, what his expenses were or why, when he is in arrears in his support for Haley, he would engage in farming activities that erode the income base available to support his daughter and that appear to dissipate his financial assets. [ 59 ] Eaket's response was simply that he felt Kostin's current partner's income should be taken into account in assessing her "need" for support.

He offered no argument or authority in support of why he believed that position was appropriate in these circumstances, nor did he offer any evidence of what Kostin's partner's income and expenses might be. He had made no prior request of Kostin for information regarding her partner's income. He asserted that Kostin does not qualify for partner support on the basis of "need", but offered no evidence in support of that position. [ 60 ] Eaket claimed to have incurred expenses in responding to Kostin's attempts to determine his income, but offered no evidence in support of those expenses.

He claimed he suffered a decline in his standard of living when Kostin moved out, but offered no evidence in support of that claim. [ 61 ] The onus was on Eaket to satisfy me that expenses which operate to reduce his wholly owned corporation's income are valid business expenses. He acknowledged a discrepancy of approximately $40,000 between deposits into and withdrawals from the business

account of 1396775, but could offer no meaningful explanation for that discrepancy. He acknowledged his failure to comply with the outstanding Undertakings which he had also acknowledged at the March 26th Application, but assured me that he was "still working on it". He claimed that ATM withdrawals on the business account of 1396775 were to pay for casual labour and to acquire items needed in the corporation's business activities, but provided no receipts or details of those expenses.

He claimed that charges at 7-eleven convenience stores were business expenses, but provided no receipts or details of those expenses. He acknowledged that 1396775 was funding many of his meals at restaurants and stated that liquor and perfume purchases involving the corporation's funds were incurred to appease a customer of 1396775, but provided no evidence in support of that explanation. He claimed that the component of cell phone use funded by 1396775 and which related to his personal use, was nominal, but provided no evidence in support of that assertion.

He claimed that the business carried on by 1396775 occupied 80% of the land area upon which his home is located in support of his argument that little or no value arising from his personal use of corporate property should be imputed to him, but provided no drawings, descriptions or other evidence upon which this Court could determine the truth of his statements. He asserted that one of the vehicles owned by 1396775 was used entirely for business purposes and not for personal use but could offer no logs or other documentation in support of his assertions.

He asserted that computers owned by 1396775 were used entirely for business purposes and that there was no personal use component, but offered no evidence to support that assertion. He asserted that he removes only those funds from 1396775 that he requires to live on, but provided no list of expenses. He attempted to justify fees paid to subcontractors by 1396775, a significant expense to 1396775 for its fiscal period ending April 30, 2011and, as evidenced in pro-forma statements, for the period ending April 30, 2012, but did not explain what those outlays entailed or provide receipts.

He assured the Court that costs of "supplies" incurred by 1396775 were "100% legitimate business expenses" but offered no explanation or evidence of what those expenses involved. [ 62 ] The May 22nd Application ended without Eaket having concluded his replies to Kostin's challenges to his assertions regarding imputation of income. No opportunity existed for discussion regarding Eaket's report regarding his Family Law Practice Note 7 Intervention/Assessment inquiries.

The next Application was set for June 14, 2012. [ 63 ] In a letter to the parties dated May 23, 2012, I directed, inter alia , that Kostin provide affidavit evidence at the application on June 14, 2012 to inform the Court regarding matters addressed in

section 58 (

d) of the Family Law Act (Alberta) . That

section directs the Court to take into account the extent to which any person (in this case, Kostin's current partner) who lives with the person (Kostin) seeking support, contributes towards the household expenses and thereby reduces the financial needs of that person (Kostin). E. The June 14, 2012 Application (the “June 14th Application ”) [ 64 ] Kostin filed an Affidavit dated June 7, 2012 in response to the direction in my letter of May 23, 2012.

Her evidence was that she and her new partner live in separate residences and that he does not contribute towards her monthly living expenses. [ 65 ] Eaket filed an Affidavit on June 8, 2012 in connection with the question of his income. In that Affidavit, he deposes that, in the construction industry, expenses generally represent approximately 75% of total revenue. He mentions various expenses typically incurred in the construction business. He began the June 14th Application by asserting that 1396775's expenses were 75% of its income.

That was the extent of his evidence regarding 1396775's activities. [ 66 ] Notably, however, he did not provide any affidavit or other evidence in support of that corporation's subcontractor expenses.

Those expenses amounted to approximately: (a) 31% of that corporation's total income for its fiscal period ending April 30, 2012 (prepared on a pro-forma basis); and (b) 26% of that corporation's total income for its fiscal period ending April 30, 2011. [ 67 ] Eaket reiterated that one of his two vehicles is used for business purposes and one is used for personal purposes and that one of his two cell phones is used for business purposes and one is used for personal purposes.

He indicated that he was careful in properly reflecting his income and expenses and stated that most of his meals (paid for by 1396775) relate to business expenses. He claims to live on a low income. [ 68 ] Kostin's counsel, for her part, drew my attention to case law which I found helpful in understanding her client's position regarding the legitimacy of Eaket's claims relating to business expenses. These cases included Tobin v. The Queen , 2009 TCC 278 and Stevenson v Winkler , 2011 ABQB 693 .

[ 69 ] In her assertions that the financial statements for 1396775 do not accurately reflect appropriation of corporate resources to Eaket's personal use, Kostin’s counsel pointed out that: 1. 1396775 pays wages but Eaket claims they are not paid to him (he offered no evidence which would explain to whom those amounts are paid); 2.

Eaket receives no wages, dividends or management fees from 1396775, yet he manages to eat, clothe himself, maintain a residence, a car and a phone all without drawing funds from 1396775; 3. 1396775's expenses exceed its income, leading to the inference that it operates at a loss because Eaket appropriates its funds and assets for his personal living expenses without reporting any corporate drawings; and 4. adding a small business component to what is otherwise a personal expense does not qualify that expense as a business expense. [ 70 ] Kostin's counsel would have me draw negative inferences from the absence of receipts, explanations of expenses or other evidence regarding 1396775's deployment of funds for business purposes. [ 71 ] She points out that Eaket earned $101,000 as an employee in 2006 and argues that it is therefore not reasonable to allow him to avoid his child support obligations (and, by inference, his partner support obligations) by engaging in employment through 1396775 which allows him to report employment income of only $20,723.17 for 2010 and $26,298.83 for 2011.

The inference she would have me draw is that Eaket is intentionally underemployed. I have already taken notice of the fact that Eaket's unexplained losses from farming activities had the effect of reducing his line 150 income to $12,606.27 for 2011 and to $7,382.57 for 2010. [ 72 ] In response to closing statements from Kostin's counsel regarding imputation of income, Eaket noted that the $12,000 reported as part of his T1 income each year is a non-cash item. He asserted that 1396775 expenses that amount for rent allegedly paid to him for use of buildings but that he does not actually receive it.

In essence, he claims this is a business expense incurred by and therefore deductible to 1396775, but not actually paid to him. [ 73 ] I have difficulty with that assertion. I did not see anything on the financial statements for 1396775 to suggest that amounts for rent were accruing to Eaket's shareholder's loan account balance with 1396775. The corporation shows a zero balance on its financial statements for "Advances from related parties”. If this rental were an outlay or expense that 1396775 could deduct, it would seem necessary either to actually pay this amount or to accrue it as a liability to Eaket.

As it appears to have done neither, it seems unreasonable to allow it to be deducted by 1396775 as a component of its pre-tax income while at the same time asserting that it cannot form part of Eaket's line 150 income because it is a non-cash item. [ 74 ] Eaket claims to have thousands of receipts, yet none were offered in support of his claims regarding business expenses.

He advised the Court that he cannot possibly account for everything, but in fact he has not accounted for anything. [ 75 ] He claimed to have been advised by the Canada Revenue Agency that he need not maintain a log which reflects business vs. personal use of his business vehicle because he maintains one vehicle exclusively for business use and one for personal use.

Yet, he also advised the Court that, in respect of his business vehicle, he had to combine business with personal use, it being functionally impossible to separate the two. [ 76 ] What emerged from the June 14th Application and the earlier Applications in regards to determining Eaket's income was the following: 1. Kostin's ability to finance the litigation costs of attempting to extract financial information from Eaket had come to an end; and

2. Kostin's counsel, in her attempts to obtain and provide this Court with meaningful information upon which to base a decision regarding Eaket's income, had been required to undertake, inter alia , the following: (

a) pursue a Notice to Disclose/Application; (

b) make seven court appearances to request financial disclosure for the 2009 taxation year; (

c) review what little material she was able to obtain from Eaket; (

d) correspond with Eaket's counsel while he had counsel; (

e) pursue Questioning to obtain further financial information; (

f) review Eaket's responses to undertakings; (

g) make two further court applications; (

h) review Eaket's further responses to undertakings; (

i) review T1 and T2 income tax returns which Eaket ultimately provided under threat of being found to be in contempt of Court in response to my directions; (

j) review and analyze financial statements which Eaket ultimately provided under threat of being found to be in contempt of Court in response to my directions; and (

k) review and analyze bank account statements from 2009 to the present. [ 77 ] I then considered Eaket's Family Law Practice Note 7 Intervention/Assessment report. Eaket verbally reported on his discussions with various consultants who would be in a position to undertake an intervention or an assessment.

His report included comments regarding availability, cost and prospects of receiving a report, depending on the nature of the investigation (intervention or assessment (unilateral or bi-lateral)). [ 78 ] Kostin's counsel expressed her client's continuing concern for her safety and Haley's safety, in light of the prior episodes of violence.

Kostin does not wish to change the current arrangements, as outlined in the Hembroff Order. [ 79 ] I asked Kostin's counsel why Kostin had been prepared to offer Eaket parenting time as outlined in her proposal of January 26, 2012 but had taken the position throughout the Applications before me that the much more limited access granted by the Hembroff Order continued to be appropriate. She indicated that Kostin had been prepared to offer additional parenting time to Eaket out of expediency, in an effort to obviate the necessity of coming before the Court on this issue.

She advised, however, that since that tactic failed, Kostin was prepared to stand by her view that her safety and Haley's safety could be compromised if Eaket had more parenting time with Haley. Kostin would prefer that I order Eaket to undergo a unilateral Family Law Practice Note 7 assessment (now, a Family Law Practice Note 8 Parenting Time/Parenting Responsibilities Assessment).

She did, however, acknowledge that an intervention would provide some useful information for my decision regarding increased parenting time and decision making for Eaket. [ 80 ] Eaket, for his part, reiterated the observation he had made repeatedly throughout the Applications.

That is, although he had faced assault charges, the fact that he signed a peace bond to avoid a trial, combined with his assertions that he did not hurt Kostin and that a prosecutor allegedly said that the matter should not go to trial, should convince me to alter the status quo . [ 81 ] Eaket was asked if he had any closing submissions regarding imputation of income. He closed proceedings by reciting a list of questions which he thought this Court should be asking about Kostin's relationship with her new partner.

To be clear, these were questions which, after five Applications and five months had elapsed, Eaket was verbally raising for the first time. [ 82 ] At the conclusion of the June 14th Application, I directed that, pending my decision, the Hembroff Order continue to govern Eaket's parenting time with Haley and Eaket's partner support obligations continue to be based on imputed income of $90,000. I made no direction at that time regarding any change to the provisions of the Macleod Order directing the payment of child support.

That was because I was not asked to do so and because my determination, if any, of what Eaket's child support obligations were to be ultimately would depend on my decision relating to the determination of Eaket's income.

IV. Analysis and Decisions A. Parenting time with Haley [83] A letter from Kaitlin Maguire, Family Violence Prevention Worker, Community Links, dated April 11, 2011, addressed "towhom it may concern" notes that: This worker has been working with Haley Eaket regarding her father and the events that occurred last September. When Hailey firstcame to see this worker she was very concerned about her father because she reported that he did bad things. Hailey recognizes that herfather does poor actions and that the consequence for this is that Hailey has not been able to see her father since September.

It would be in the best interest of Hailey to transition her back to time with her father. Hailey needs time to adjust, her father veryabruptly stopped seeing her some months ago and that was a very hard transition for her. It is important that she feel safe and supported. 1. Law Relating to Parenting [84] In this regard, I must consider what I believe would be in Haley's best interests, not Eaket's or Kostin's. I have reviewed thefollowing cases: MacPhail v. Karasek, 2006 ABCA 238, 409 AR 170; Spencer v. Spencer, 2005 ABCA 262, 371 AR 78 (“Spencer”); Heikel v.

Heikel, 2007 ABQB 378, 44 RFL (6th) 102; O. (T.L.) v. O. (D.J.), 2006 ABQB 747; Starko v. Starko (AB KB), [1990] 106 AR 62; Botticelli v. Botticelli, 2009 ABQB 556, 74 RFL (6th) 367; T.M.F v. J.D.F, 2010 ABQB 801; Ganden v.Kovalsky, 2003 ABQB 20; and Gordon v.

Goertz, (SCC), [1996] 2 S.C.R. 27 (“Gordon”). [85] These decisions are helpful in reaffirming foundational principles, including: 1. the crucial importance of determining the best interests of the child; 2. the non-application of any presumptions for or against a particular parent's right to assert custody; and 3. the objective of providing maximum contact with a parent, provided it is in the child's best interests. [86] The provisions of the Family Law Act, SA 2003, c F-4.5 (“FLA”) reaffirm these foundational principles and it will be useful toset out portions of that statute at length.

Section 18 of the FLA provides as follows: 18(1) In all proceedings under this Part except proceedings under

section 20, the court shall take into consideration only the bestinterests of the child.

(2) In determining what is in the best interests of a child, the court shall (

a) ensure the greatest possible protection of the child's physical, psychological and emotional safety, and (

b) consider all the child's needs and circumstances, including (

i) the child's physical, psychological and emotional needs, including the child's need for stability, taking into consideration thechild's age and stage of development,

(ii) the history of care for the child, (iii) the child's cultural, linguistic, religious and spiritual upbringing and heritage, (iv) the child's views and preferences, to the extent that it is appropriate to ascertain them, (

v) any plans proposed for the child's care and upbringing, (vi) any family violence, including its impact on (

A) the safety of the child and other family and household members, (

B) the child's general well being, (

C) the ability of the person who engaged in the family violence to care for and meet the needs of the child, and (

D) the appropriateness of making an order that would require the guardians to co-operate on issues affecting the child, (vii) the nature, strength and stability of the relationship (

A) between the child and each person residing in the child's household and any other significant person in the child's life, and (

B) between the child and each person in respect of whom an order under this Part would apply, (viii) the ability and willingness of each person in respect of whom an order under this Part would apply (

A) to care for and meet the needs of the child, and (

B) to communicate and co-operate on issues affecting the child, (ix) taking into consideration the views of the child's current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian, (

x) the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and (xi) any civil or criminal proceedings that are relevant to the safety or well being of the child.

(3) In this section, "family violence" includes behaviour by a family or household member causing or attempting to cause physical harm to the child or another family or household member, including forced confinement or sexual abuse, or causing the child or another family or household member to reasonably fear for his or her safety or that of another person, but does not include (

a) the use of force against a child as a means of correction by a guardian or person who has the care and control of the child if the force does not exceed what is reasonable under the circumstances, or (

b) acts of self protection or protection of another person. [ 87 ] Sections 32-34 of the FLA are relevant to the parenting matters before me and provide as follows: 32(1) Where a child has more than one guardian and the guardians (

a) are not able to agree with each other in exercising the powers, responsibilities and entitlements of guardianship in respect of the child, and (

b) in the case where the guardians are the parents of the child, are living separate and apart,

the court may, on application by one or more of the guardians, make an order relating to the exercise of the powers, responsibilities and entitlements of guardianship in respect of the child.

(2) A parenting order may contain any or all of the following: (

a) an allocation, generally or specifically, of the powers, responsibilities and entitlements of guardianship among the guardians; (

b) an allocation of parenting time, which may be by way of a schedule, unless a

schedule is unnecessary in the circumstances; (

c) a dispute resolution process for any or all future disputes regarding guardianship or parenting arrangements, if the process has been agreed to by the persons who are bound by that process; (

d) any other provisions that the court considers appropriate.

(3) Subject to any limitations imposed by the court, parenting time allocated to a guardian under subsection (2)(

b) is exclusive to that guardian.

(4) Unless the court orders otherwise, if a guardianship power or responsibility is allocated to one guardian, the other guardian or guardians remain entitled to make inquiries and to be given information about any significant matter that arises in connection with the exercise of that power or responsibility.

(5) In this section, "parenting time" means time during which a guardian has the power to make day to day decisions affecting the child, including having the day to day care and control of the child and supervising the child's daily activities, whether the child is in the guardian's presence or out of the guardian's presence with the guardian's express or implied consent. 33(1) The court may make a parenting order for a definite or indefinite period or until a specified event occurs and may impose terms, conditions and restrictions in connection with the order as the court considers appropriate.

(2) Without limiting the generality of subsection (1), the court may include in a parenting order a term requiring a guardian who intends to change his or her place of residence or that of the child to notify the other guardian or guardians, at least 60 days before the change or within such other period before the change as the court may specify, of the change, the date on which the change will be made, and the new place of residence for the guardian or the child, as the case may be. 34(1) In this section, "variation order" means an order made under subsection (2) or (5).

(2) The court may, on application by one or more of the guardians, make an order varying, suspending or terminating a parenting order or any part of that order.

(3) Before the court makes a variation order in respect of a parenting order, the court shall satisfy itself that a change in the needs or circumstances of the child has occurred since the making of the parenting order or the last variation order made in respect of that order, and in making the variation order, the court shall consider only the best interests of the child, as required by

section 18 and as determined by reference to that change.

(4) The court may include in a variation order any provision that could have been included in the parenting order in respect of which the variation order is sought.

(5) The court may, on application by the child or a person who has the care and control of the child, make an order varying, suspending or terminating a parenting order referred to in section 22(6) or any part of that order.

2. Discussion [ 88 ] Section 34(3) of the FLA is the starting point for this analysis. Before I may alter the parenting terms set forth in the Hembroff Order, I must be satisfied that there has been a change in Haley's needs or her circumstances since the Hembroff Order was made on April 29, 2011. Only if I am satisfied that there has been a change in Haley's needs or circumstances may I go on to consider what is in Haley's best interests, mindful of the provisions of

section 18 of the FLA. [ 89 ] The terms of the Hembroff Order reflect the Court's concern following the expiration of the No Contact Order issued on September 15, 2010 in response to the second episode of domestic violence. [ 90 ] I believe Haley's circumstances and needs have changed since the Hembroff Order. During the Applications, I heard no suggestion that Eaket's parenting time with Haley had given rise to any adverse experiences. No one suggested during the Applications that she requires protection from her father any longer.

Accordingly, Haley’s circumstances appear to have changed since the No Contact Order was made. [ 91 ] It is unrealistic to de-couple changes Haley's needs or circumstances from changes in her parents' needs or circumstances. Eaket has had time to address anger management issues that manifested during his relationship with Kostin.

During the five months over which the Applications proceeded, I neither saw evidence nor received any complaint from Kostin to suggest that Eaket had simply been able to disguise a latent tendency to inappropriate behaviour towards his daughter. [ 92 ] Accordingly, Eaket appears to have acquired the capacity to engage in meaningful parenting time with Haley. The decision in Spencer , cited above, is helpful in guiding the Court's inquiry regarding the nature and extent of changes in needs or circumstances required to vary an existing custody order.

In the context of section 17(5) of the Divorce Act (Canada) , which contains provisions analogous to the relevant provisions of the FLA , the Alberta Court of Appeal noted at para. 9: Section 17(5) of the Divorce Act requires that a judge first find a material change in the child's circumstances.

It is only after such a determination that a judge must determine the best interests of the child. [ 93 ] At para. 11 of Spencer , the Court of Appeal noted the determinations in Gordon where, in respect of a change in a child's circumstances: McLachlin J. (as she then was) clarified that the change must alter the child's needs or the ability of the parents to meet those needs in a fundamental way.

Before entering into an inquiry on the merits of an application to vary a custody order, the judge must be satisfied that there is a change that materially affects the child, which was not foreseen or could not reasonably have been contemplated. [Emphasis added.] [ 94 ] At the time of the issue of the No Contact Order, it was not necessarily foreseeable that Eaket would be able, for a continued period of time, to conduct his relationship with Kostin in a non-confrontational manner. He seems to have acquired that facility.

The evidence before me satisfies me that Eaket's ability to interact with his daughter in positive fashion marks a fundamental change in his ability to meet her needs. [ 95 ] It has been over two years since Eaket has had significant, extended parenting time with Haley. I am not concerned about Haley's physical, psychological and emotional safety while in the presence of Eaket. [ 96 ] I believe that in the more than fifteen hours I have spent listening and talking to Eaket and in reviewing correspondence which he has authored, I have developed some sense of his commitment to and concern for Haley.

Whatever other frustration I may have encountered in my interactions with Eaket over the five month period during which the Applications took place, I have no doubt that he

cares about his daughter. I believe he is emotionally equipped to provide her with appropriate parenting. I do not believe that he currently poses a threat to Kostin and I believe that the following directions will allow for his gradual reintroduction into his daughter's life.

For these reasons, I believe a Family Law Practice Note 7 Intervention, a Family Law Practice Note 8 Parenting Time/Parenting Responsibilities Assessment or the appointment of a parenting coordinator would only add unnecessary delay, expense and stress to the delineation of a parenting protocol which the parties were reasonably close to achieving on their own before the February 16th Application. [ 97 ] With respect to pick up and drop off, Kostin wishes to maintain the current arrangement, as provided in the Hembroff Order.

That arrangement involves pick up and drop off in the parking lot of the McDonald's restaurant in Airdrie. Eaket does not wish to have to drive from Acme to Airdrie on every occasion to deal with pick up and drop off. He wants Kostin to share that responsibility, requiring her, under various circumstances, to pick up or drop off Haley at the Road Runner store in Acme. Further, he wants exchanges in Airdrie and Acme to take place inside MacDonald's and Road Runner, respectively.

Kostin, for her part, believes that face to face exchanges inside business establishments foster unnecessary interaction between her and Eaket, giving rise to the possibility of conflict. [ 98 ] Exchanges since the Hembroff Order was issued appear to have occurred without confrontation. Accordingly, I direct the following: (

a) Kostin shall have sole custody of Haley and Haley shall have her primary residence with Kostin. (

b) Eaket shall have the following parenting time with Haley: (

i) while Haley is in school, every other weekend, from one hour after the later of (

i) when Haley finishes school and (ii) when Kostin finishes work with her employer, until Sunday evening at 6:00 p.m. In the event that, during the school year, Eaket's specified weekend parenting time with Haley is followed by a Monday which is a statutory holiday (other than Christmas Day, Boxing Day, Easter Monday or Thanksgiving Monday), or a day in lieu of a statutory holiday during which Haley is not required to be in school, Eaket's specified weekend parenting time shall be extended to Monday evening at 6:00 p.m. Pick-up and drop off: 1.

Kostin shall bring Haley to the Road Runner parking lot in Acme where the exchange shall take place on Friday at the beginning of Eaket's parenting time. 2. Eaket shall bring Haley to the McDonald's parking lot in Airdrie where the exchange shall take place at the end of his parenting time. (ii) while Haley is not in school, every other weekend, from the later of (i) 5:00 p.m. and (ii) when Kostin finishes work with her employer, until Sunday evening at 6:00 p.m.

In the event that, outside of the school year, Eaket's specified weekend parenting time with Haley is followed by a Monday which is a statutory holiday (other than Christmas Day, Boxing Day, Easter Monday or Thanksgiving Monday), Eaket's specified weekend parenting time shall be extended to Monday evening at 6:00 p.m. Pick-up and drop off: 1. Kostin shall bring Haley to the Road Runner parking lot in Acme where the exchange shall take place on Friday at the beginning of Eaket's parenting time. 2.

Eaket shall bring Haley to the McDonald's parking lot in Airdrie where the exchange shall take place at the end of his parenting time.

(iii) while Haley is in school, in those weeks during which Eaket has no following weekend access with Haley, he shall have parenting time with Haley on Tuesdays from when Haley finishes school until 7:30 p.m. that evening; Pick-up and drop off: Eaket shall pick Haley up at her school and drop her off at the McDonald's parking lot in Airdrie at the end of his parenting time. (iv) while Haley is not in school, in those weeks during which Eaket has no following weekend access with Haley, he shall have parenting time with Haley on Tuesdays from one hour after Kostin finishes work with her employer until 7:30 p.m. that evening; Pick-up and drop off: Kostin shall drop Haley off at the McDonald's parking lot in Airdrie at the beginning of Eaket's parenting time and Eaket shall drop Haley off at the McDonald's parking lot at the end of his parenting time; (

v) with respect to Christmas, Eaket shall have parenting time with Haley from Christmas eve at 4:00 p.m. until 2:00 p.m. on Christmas day in even years. In odd years, Eaket shall have parenting time with Haley from 2:00 p.m. on Christmas day until 6:00 p.m. on Boxing Day. The parenting arrangements otherwise applicable to periods in which Haley is not in school and which are described above shall govern parenting and access throughout the balance of the Christmas break.

Pick-up and drop off: In even years, Eaket shall pick up Haley at the McDonald's parking lot in Airdrie at 4:00 p.m. on Christmas eve and Kostin shall pick up Haley at the Road Runner parking lot in Acme at 2:00 p.m. on Christmas day. In odd years, Kostin shall drop Haley off at the Road Runner parking lot in Acme at 2:00 p.m. on Christmas day and Eaket shall drop Haley off at the McDonald's parking lot in Airdrie at 6:00 p.m. on Boxing Day; (vi) with respect to Easter Monday, in odd years Eaket shall have parenting time with Haley from 10:00 a.m. on Easter Monday until 7:00 p.m. on Easter Monday.

Pick-up and drop off: Kostin shall drop Haley off at the Road Runner parking lot in Acme at 10:00 a.m. on Easter Monday and Eaket shall drop Haley off at the McDonald's parking lot in Airdrie at 7:00 p.m. on Easter Monday; (vii) with respect to Thanksgiving Monday, in even years Eaket shall have parenting time with Haley from 10:00 a.m. on Thanksgiving Monday until 7:00 p.m. on Thanksgiving Monday.

Pick-up and drop off: Kostin shall drop Haley off at the Road Runner parking lot in Acme at 10:00 a.m. on Thanksgiving Monday and Eaket shall drop Haley off at the McDonald's parking lot in Airdrie at 7:00 p.m. on Thanksgiving Monday;

(viii) during summer, Eaket will have parenting time of one week in each of July and August. These two weeks shall not be consecutive, unless otherwise agreed to by the parties. Eaket acknowledged that summer is his busiest time of year in the construction business. It is not reasonable to expect him to have more than two weeks available to parent Haley. I would be concerned that he would have to delegate much of his parenting time to others, should he have more time than I am prepared to grant him.

Pick-up and drop off: The parties shall attempt to agree which weeks will constitute Eaket's parenting time with Haley, failing which they are at liberty to reappear before me or another Justice of the Court of Queen’s Bench and the attending Justice will decide what those weeks will be an how pick-up and drop off will be dealt with. (ix) Haley shall spend Mother's Day with Kostin and Father's Day with Eaket, irrespective of which party would otherwise have parenting time with Haley.

Pick-up and drop off: If Mother's Day falls on a Sunday which would otherwise have been a parenting day for Eaket, Eaket shall ensure that Haley is dropped off at 10:00 a.m. that day at the Road Runner parking lot in Acme. If the next day is a holiday Monday in respect of which Eaket has parenting time with Haley, then Kostin shall drop Haley off at the McDonald's parking lot in Airdrie at 7:00 p.m. that Sunday evening.

If Father's day falls on a Sunday which would otherwise have been a parenting day for Kostin, Kostin shall ensure that Haley is dropped off at 10:00 that day at the Road Runner parking lot in Acme and Eaket shall drop Haley off at the McDonald's parking lot in Airdrie at 7:00 p.m. that evening. (

x) Subject to the provisions of this paragraph (x), in even years, Haley shall spend her birthday with Kostin and in odd years she shall spend her birthday with Eaket. In odd years, if Haley's birthday falls on a school day, other than Tuesday, Eaket shall, in addition to any other parenting time he may have with Haley, have parenting time with Haley when Haley finishes school that day until 7:30 p.m. that evening. In odd years, if Haley's birthday falls on a school day which is a Tuesday, Eaket's normal parenting time with Haley that day shall constitute his parenting time with her for that birthday.

In even years, if Haley's birthday falls on a school day which is a Tuesday, Kostin shall have parenting time with Haley that Tuesday and Eaket shall not have parenting time with Haley on that Tuesday. If Haley's birthday falls on a non-school day and the parent who otherwise has parenting time with Haley that day is, by virtue of this paragraph (x), entitled to have parenting time with Haley that day, then that parent shall have parenting time with Haley for that birthday.

If Haley's birthday falls on a non-school day and the parent who otherwise has parenting time with Haley that day is not, by virtue of this paragraph (x), entitled to have parenting time with Haley that day, then the parent who otherwise has parenting time with Haley on that day shall drop Haley off at the McDonald's parking lot in Airdrie at 10:00 a.m. that day and the parent who, by virtue of this paragraph (x), entitled to have parenting time that day shall return Haley to the other parent by dropping Haley off at the McDonald's parking lot at 7:30 p.m. that evening. B.

Decision Making [ 99 ] As might be expected, the parties' positions differ markedly with respect to who should make decisions relating to Haley. At paragraph 63 of an Affidavit Eaket filed on February 9, 2012, he stated as follows: I am willing to do whatever is in Haley's best interest.

I do not believe there is a need for a parenting coordinator as Haley and I have a fantastic relationship and she talks to me freely and speaks her mind honestly without hesitation. [ 100 ] Eaket may not appreciate that the need for a third party (in this case, this Court) to intervene in the decision making process as it relates to Haley, arises not from a lack of communication between him and Haley but rather from a lack of communication between him and Kostin.

[101] Kostin appears to appreciate the problem. She notes as follows at Tab D of her book of extracts: Clearly, the parties do not communicate well with each other…This is not a situation where it is in Haley's best interests to order jointdecision making. [102] She also points to the decision of the Provincial Court of Alberta in D.(J.) v. H.(T.), 2011 ABPC 37. There, the Court quoted asfollows from para. 15 of Colwell v.

Colwell, (AB KB), [1992] 128 AR 4 (QB): (w)here there is no history of effective joint decision-making, post-separation, the court must examine the evidence to decide if it revealsa couple with the maturity, self-control, ability, will and communication skills to make proper joint decisions about their children. If itdoes not, it would not be in the best interests of the children to order joint custody. [103] Paragraph 32(2)(

c) of the FLA allows the Court to order a dispute resolution process for future disputes between the parties ifthe parties agree to be bound by that process. The parties clearly do not agree upon the need for such a process. Requiring joint decisionmaking would be to set the parties up for failure. Decisions regarding Haley need to be made. [104] Accordingly, until further order of this Court, Kostin will have sole custody, and therefore sole decision making regardingHaley.

Eaket's access will be as outlined above or as otherwise agreed to by Kostin. [105] If Eaket and Kostin are able successfully to implement the parenting arrangements articulated above, a subsequent applicationby Eaket for additional decision making responsibility may be favourably received.

For the time being, a track record of success needs tobe established. [106] If, despite his best efforts, Eaket believes that Kostin's behavior is thwarting his attempts to establish effective shared parentingof Haley, he is at liberty to appear before this Court, outline his concerns and seek a change in the decision making arrangementsaffecting Haley. C. Partner Support [107] Eaket disputes his obligation to provide Kostin with partner support. Determining entitlement to, quantum of and duration ofpartner support is an iterative process. The Court must first determine if Kostin is entitled to partner support.

Assuming she is so entitled,the Court must then consider the objectives which a partner support order under the FLA seeks to achieve and must take into accountvarious considerations mandated by

section 58 of the FLA. The ultimate objective is to determine what, if any, would be an appropriatequantum and duration of partner support. [108] The courts have identified the relevant circumstances to be taken into account in cases such as Bracklow v. Bracklow, (SCC), [1999] 1 S.C.R. 420, Desimone v. Straub, 2010 ABQB 462, Abbott v. Abbott, 2010 ABQB 585, Schild v. Kassian,2010 ABQB 572 and the above-cited cases of Hamilton v. Wallace and Gordon v. Towell. Those circumstances include the following: (

a) the parties' assets and means, now and in the future; (

b) the claimant's ability to contribute to his or her own support; (

c) the payor's capacity to provide support; (

d) the age and health of the parties; (

e) the claimant's needs, having regard to the accustomed standard of living while the parties resided together; and (

f) the payor's legal obligations to others.

[ 109 ] In this case, the matter is made more complex because Eaket earns most of his income through his wholly owned corporation, 1396775. 1. Basic Obligation to Provide Partner Support [ 110 ]

Section 56 of the FLA provides that: 56 Subject to this Division, every spouse or adult interdependent partner has an obligation to provide support for the other spouse or adult interdependent partner. a. The Parties' Positions [ 111 ] Eaket, in arguments filed with the Court on January 27, 2012 and in an Affidavit filed February 9, 2012, asserts the following: 1. Kostin was not disadvantaged financially by their relationship because: (

a) she was not by herself when she lived with him; (

b) upon dissolution of the relationship she returned at a higher wage to the same job she had left to raise Haley; (

c) she moved back to the same house she had lived in prior to commencement of the relationship; 2. She rented out her house while the parties co-habited; 3. She paid the mortgagee on her house and he on the house they jointly lived in; 4. She looked after her own bills and he looked after his; 5. She has a new relationship with another man which should mean that any support obligations which Eaket might otherwise have should cease; 6. She had had an affair before she moved out; 7. She made the decision that she would stay home and not work during Haley's early years; 8.

She earned money from running a day care in their house while they co-habited; and 9. They never shared a bank account. [ 112 ] Conversely, at Tab E of her Book of Extracts, Kostin asserts the following: (

a) In the first two years after the relationship ended, she was forced to increase her line of credit by approximately $58,000 in order to meet her expenses; (

b) She is entitled to partner support on a compensatory basis because she was financially disadvantaged by what she asserts was their joint decision that she stay at home with Haley until Haley started kindergarten; (

c) She is entitled to partner support on the basis of need. At Tab 26 of her Book of Extracts, she sets forth a budget where she identifies expenses amounting to $33,535.00 per annum. (Her calculation is in error. This number should, based on her budget, be $33,510.00 per annum). I note that Kostin has three children, though she receives at least some support from the father of her two other children; and (

d) That she should receive partner support of $723.00 per month from February 1st 2010 until further Order of this Court. This

(

d) That she should receive partner support of $723.00 per month from February 1st 2010 until further Order of this Court. This amount is arrived at by applying the midrange calculation articulated in the Spousal Support Advisory Guidelines to her income of $38,000 per annum and the income of $90,000 per annum which she sought to have this Court, and which, on an interim basis, I did impute to Eaket. b. The Statutory Framework (

i) The FLA [ 113 ]

Section 46(

a) of the FLA provides that in

Part 3 of the FLA, which contains the support provisions, “adult interdependent partner” includes a former adult interdependent partner. Accordingly, if Kostin is Eaket’s former adult interdependent partner, she may be entitled to support. As the FLA does not define adult interdependent partner or former adult interdependent partner, I must look to the provisions of the Adult Interdependent Relationships Act , S.A. 2002 c. A-4.5 (“AIRA”). (ii) The AIRA [ 114 ] Were Kostin and Eaket adult interdependent partners?

If they were, have they become former adult interdependent partners? [ 115 ] The AIRA provides at section 1(1) that: In this Act, (a) "adult interdependent partner" means an adult interdependent partner within the meaning of

section 3, but does not include a former adult interdependent partner; [ 116 ]

Section 3 provides that: 3(1) Subject to subsection (2), a person is the adult interdependent partner of another person if (

a) the person has lived with the other person in a relationship of interdependence (

i) for a continuous period of not less than 3 years, or (ii) of some permanence, if there is a child of the relationship by birth or adoption, or (

b) the person has entered into an adult interdependent partner agreement with the other person under

section 7. [ 117 ] For the parties to be found to have been adult interdependent partners, they must have had a relationship of interdependence. Once it is determined that they had a relationship of interdependence, it is necessary to determine if either (

i) the relationship was for a continuous period of not less than 3 years or, (ii) given the fact that they had a child, the relationship was of some permanence. [ 118 ] Paragraph 1(

f) of the AIRA provides that "relationship of interdependence" means a relationship outside marriage in which any

2 persons: (

i) share one another's lives, (ii) are emotionally committed to one another, and (iii) function as an economic and domestic unit. It would seem obvious that Kostin and Eaket, at least for some period of time, shared one another's lives and were emotionally committed to one another. [ 119 ] Section 1(2) of the AIRA provides that: 1(2) In determining whether 2 persons function as an economic and domestic unit for the purposes of subsection (1)(f)(iii), all the circumstances of the relationship must be taken into account, including such of the following matters as may be relevant: (

a) whether or not the persons have a conjugal relationship; (

b) the degree of exclusivity of the relationship; (

c) the conduct and habits of the persons in respect of household activities and living arrangements; (

d) the degree to which the persons hold themselves out to others as an economic and domestic unit; (

e) the degree to which the persons formalize their legal obligations, intentions and responsibilities toward one another; (

f) the extent to which direct and indirect contributions have been made by either person to the other or to their mutual well being; (

g) the degree of financial dependence or interdependence and any arrangements for financial support between the persons; (

h) the care and support of children; (

i) the ownership, use and acquisition of property. [ 120 ] Did Kostin and Eaket function as an economic unit? Eaket maintained that they had separate bank accounts and were not, therefore, an economic unit. Kostin's evidence differs. [ 121 ] In her Affidavit dated July 8, 2010, Kostin states that: (

a) the parties cohabited in Eaket's home; (

b) she became a full time homemaker after Haley's birth; (

c) she provided Eaket with $8,600 to allow him discharge his debt to his ex-wife; (

d) she paid $3,200 for a holiday trailer for the parties' use; and (

e) she contributed $3,500 towards the purchase of a cargo trailer. [ 122 ] In her Affidavit of January 1, 2012, Kostin states that: (

a) she lent Eaket a total of $56,000 for renovations to his home; (

b) she moved a kitchen worth $10,000 from her home into Eaket's home; and (

c) she allowed Eaket to incur charges on her credit card in the approximate amount of $13,500. [ 123 ] Based on the explanations and evidence I received from the parties over the five-month course of the Applications, I have no difficulty concluding that the parties functioned as an economic unit and that each of items (

a) through (

i) of section 1(2) of the AIRA applied to their relationship. I reach this conclusion based upon:

1. their conduct and habits in respect of household activities and living arrangements; 2. the extent to which direct and indirect financial contributions were made by each of them to their mutual well being; 3. the degree of financial dependence or interdependence in respect of housing and daily living arrangements between the persons; 4. their joint care and support of Haley; and 5. their mutual financial contributions to the ownership, use and acquisition of property. [ 124 ] I conclude, therefore, that they enjoyed a relationship of interdependence that exceeded three years.

They had a child together and, in my view, their four-year relationship qualifies as a relationship of some permanence. [ 125 ] It is equally clear to me that Kostin and Eaket are former adult interdependent partners. They ceased to be adult interdependent partners and became former adult interdependent partners by virtue of

section 10 of the AIRA, which provides: 10(1) Unless another enactment provides otherwise, an adult interdependent partner becomes the former adult interdependent partner of another person when the earliest of the following occurs: … (

b) the adult interdependent partners live separate and apart for more than one year and one or both of the adult interdependent partners intend that the adult interdependent relationship not continue; 2. Application of Principles [ 126 ] Turning to the provisions of the FLA and keeping in mind that references to an "adult interdependent partner" include a "former adult interdependent partner", the relevant portions of

section 57 of the FLA provide: 57(1) Subject to this section, the court may, on application by a spouse or adult interdependent partner, make an order requiring a spouse or adult interdependent partner to provide support for the other spouse or adult interdependent partner.

(2) The court may make an order under this

section only if …. (

b) in the case of adult interdependent partners, … (ii) the adult interdependent partners are living separate and apart ... [ 127 ] Kostin pointed to the decisions in Daved v Daved, 2010 ABQB 447 and to the cases of Hamilton v Wallace , Gordon v Towell , Stevenson v Winkler , Shunamon v Diegel , F.(E.V.) v M. (W.), Freake v Riley and Fitzsimmons v. Boulter , all cited above. [ 128 ] The following principles applicable to the facts before this Court emerge from a review of those cases: 1. Daved v.

Daved (ABQB) In arriving at quantum of support, the amount the recipient had to borrow to satisfy needs reflective of the lifestyle enjoyed before separation, is a reasonable determinant of the appropriate level of support to be ordered.

2. Hamilton v. Wallace (ABQB) Economic disadvantage arises when a person gives up full time employment and the salary and benefits associated therewith, to contribute to a joint undertaking of the parties (in this case, having and raising a child). Applying the principles outlined by the Supreme Court of Canada in Bracklow v. Bracklow , partner support in the lump sum amount of $12,000 was appropriate for a relationship of four years where the payor's income was largely indeterminate. 3. Gordon v. Towell (ABQB) Applying the principles in Bracklow v. Bracklow , partner support of $1,000 per month for 12 months was appropriate for parties in a relationship of three years’ durati

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