Rasmussen v. Swanson, 2012 ABQB 779

Court of Queen ’ s Bench of Alberta Citation: Rasmussen v. Swanson, 2012 ABQB 779 Date: 20121220 Docket: 4803 159189 Registry: Edmonton Between: Brett Jarrod Rasmussen Plaintiff(Respondent) - and - Whitney Laine Swanson Defendant(Applicant) _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In this special chambers application, Ms. Swanson asks for sole custody of parties ’ 3 ½ year old daughter. She also asks for specified access to the father, with certain restrictions. Finally, she asks for child support based on the father ’ s income for 2011, even though she acknowledges that he suffered a workplace injury in January 2012. [ 2 ] Ms. Swanson has not established in this chambers application that she is entitled to sole custody; the parties ’ affidavit evidence is contradictory and cannot be resolved according to standard legal principles.

The contested parenting issues must be tried. Ms. Swanson will have the responsibility of bringing the parenting issues to trial.

[ 3 ] On an interlocutory basis, Mr. Rasmussen is entitled to slightly increased access. This increased access will not only bring his current access more into line with conventional alternate week-end access, but will avoid consideration of Ms. Swanson ’ s request to have access exchanges occur at a police station. The current alternate week-end access will be increased, starting with Mr. Rasmussen ’ s access period which is closest to January 15, 2013, to alternate weekend access commencing Friday after day care to Monday morning drop off at day care.

Access exchanges will be facilitated by a driver other than Mr. Rasmussen. During his access periods, the father will not expose his daughter to second-hand smoke. Because of the driving licence and head injury issues, until further order of the court Mr. Rasmussen will not drive a vehicle in which his daughter is a passenger. [ 4 ] Mr. Rasmussen ’ s request that the court implement a gradual increase in access moving towards shared parenting is denied: Mr. Rasmussen has not provided any explanation or excuse for his failure or neglect to take the Parenting After Separation course.

This leads to a permissible inference that Mr. Rasmussen is not sensitive to his obligation to try to nurture his daughter ’ s best interests, despite the fact that he is separated from his daughter ’ s mother. Mr. Rasmussen is entitled to renew his application for increased parenting in January, 2014, once a pattern of regular exercise of access and regular communication with the mother has been established. [ 5 ] It is not possible to determine, from the affidavit material filed on this application, whether Mr. Rasmussen is deliberately unemployed or underemployed with a view to avoiding child support.

This contested issue must be tried and Mr. Rasmussen will have responsibility to bring this issue to trial. [ 6 ] The parties have been separated since 2010 and they have brought at least two interlocutory applications; it is difficult to understand why all issues arising out of the breakdown of their marriage have not been dealt with during this relatively long interval. Because of the range of issues that must be tried, it will benefit each of the parties to have the collateral issues of custody and child support tried at the same time. Because of the different nature of the competing claims, Mr.

Rasmussen ’ s rights as a joint custodian of his daughter will continue until Ms. Swanson ’ s trial of the issue has been determined. However, as to child support, if Mr. Rasmussen has not arranged for a trial of the support issues by June 30, 2013, as of July 1, 2013, his current child support obligation of $500.00 per month pursuant to the interlocutory without prejudice consent order will increase to support based on the federal child support guidelines and a deemed gross yearly income of $90,000.00.

In setting the matters down for trial, the parties must comply with Form 37 and the Rules referenced therein Cases and authority cited [ 7 ] By Ms. Swanson: Mercer v Mercer 2004 ABQB 551 ; V.L.W. v J.E.W. 2007 ABQB 358 . 1. Background [ 8 ] The parties married in July, 2006 and separated in April 2010.

They are the parents of one child who was born in July, 2009. [ 9 ] On July 26, 2012, an interim without prejudice consent - at least in part nunc pro tunc - order was issued in these proceedings in which the divorce was severed from corollary relief, giving the mother primary residential care of the child of the marriage, giving the father parenting time on alternate week-ends from Saturday at 10:30 a.m. to Sunday at 6:00 p.m. and ordering that he not expose the child to second hand smoke during his parenting time, requiring him to give 24 hours notice of inability to exercise his parenting time, ordering that the access exchanges take place at the Leduc RCMP station and requiring the father to pay $500.00 child support monthly. [ 10 ] The parties originally filed a joint petition for divorce.

Ms. Swanson then filed a withdrawal from joint proceedings and asked for the divorce to proceed on the basis of her counter-claim. [ 11 ] Ms. Swanson was taking up-grading during part of 2012 but has now returned to the labour force.

[ 12 ] Mr. Rasmussen was injured in a workplace accident in January 2012 and has worked only sporadically since then. In connection with the January incident, Mr. Rasmussen had a brain injury assessment and treatment plan in March 2012 wherein it was recommended that Mr. Rasmussen was to continue with evaluation through the Head Injury Program; no follow-up evidence was provided. Mr. Rasmussen also apparently had hernia surgery in the summer of 2012, but no evidence has been provided about the effects of this surgery on the ability to obtain and retain employment. Mr.

Rasmussen asserts that he has an as yet untreated disability relating to reading and writing as a result of which he is functionally illiterate. [ 13 ] Mr. Rasmussen has not filed a counter-application, but he does ask for a gradual implementation of shared parenting. 2. The mother has not proved that she is entitled to sole custody of the child of the marriage [ 14 ] Ms.

Swanson claims that she should have sole custody of the child of the marriage because the father is either uninterested in participating in decisions relating to his daughter ’ s up-bringing and welfare or that he actively or he refuses to cooperate in such decisions. [ 15 ] Ms. Swanson ’ s claims concerning the father ’ s attitude towards parenting, which claims are contested by Mr.

Rasmussen who asserts that his wife is controlling and unwilling to allow him to parent his daughter, are not supported by any independent evidence despite the July 26, 2012 order requiring the parties to communicate by email or text messaging to allow the easier recording of any inappropriate communications. Because it is not possible for the court to determine, on the basis of the contradictory affidavits, which custodial regime is in the child ’ s best interest, the court orders that the issue of custody must be tried. Because the divorce proceeded on the basis of Ms. Swanson ’ s counter-claim, and because Ms.

Swanson wants to remove from Mr. Rasmussen ’ s guardianship the usual incident of custody, Ms. Swanson will be responsible for bringing the parenting issues to trial. 3. The mother has not proved that the current regime of partial alternate week-end parenting is in the parties ’ daughter ’ s best interest [ 16 ] Although the mother asserts that the father ’ s exercise of access was sporadic from the time of separation until July 16, 2012, she acknowledges that, since the July 26, 2012 interim order, Mr.

Rasmussen has regularly exercised access. [ 17 ] The mother asserts that the shortened alternate week-end access outlined in the interim order is in the child ’ s best interests. However, she goes on to suggest that access exchanges should occur at the Leduc RCMP station. It will only be in exceptional circumstances that police and parenting should become joined in a child ’ s consciousness. The mother does not provide on this application any evidence that such an extreme access provision should be implemented.

However, to the extent that the mother asserts that there is some strain involved in access exchanges, she is right to suggest that such exchanges should take place on neutral ground. The father ’ s proposal that access exchanges take place at the child ’ s day care has two benefits: it eases the mother ’ s access exchange concerns and it brings a regime of shortened alternate week-end parenting more into line with a conventional alternate week-end parenting regime.

His proposal is adopted. [ 18 ] Indeed, the only serious reason the mother advances for denying gradual implementation of a shared parenting regime is that the father has either refused or neglected to take the parenting after separation course. (His failure to provide a certificate of completion of that course may be the reason why he has not brought a counter-application.) The mother ’ s concern on that score is entitled to respect; the course is designed to inform separated parents about the strains involved in parenting after separation, to provide them with techniques for coping with such strains with the objective of cooperating to ensure that their children will not be negatively affected by the separation of the parents, and to remind them that they should still strive to meet the best interests of their children despite the separation.

Mr. Rasmussen does not give any reason or excuse for his failure to attend the course. This does give the court concern about Mr. Rasmussen ’ s overall commitment to his daughter ’ s best interests. While week-end access is clearly in the child ’ s best interest, any substantial increase in that level of parenting cannot be endorsed by the court until the father makes at least the minimal effort of completing that course.

In the result, the alternate week-end access can be revisited by the father once he has completed the course, and, in order to ensure some stability in the child ’ s life, no earlier than January 15, 2014. By that time, as well, the court will be in a better position to decide on the best interests of the child of the marriage taking into account the father ’ s new partner and potential new child, the mother ’ s new partner and the child ’ s schooling needs. [ 19 ] The other reasons advanced by the mother for denying the father an increase in effective parenting time, including that she

[ 19 ] The other reasons advanced by the mother for denying the father an increase in effective parenting time, including that she has always been the child ’ s primary parent and that she, as the child ’ s biological mother is available to provide care are not, of course, indications of what is in the child ’ s best interest. Were it otherwise, there would virtually never be shared parenting since a mother typically has more primary parenting responsibilities in the very early stages of a child ’ s life.

Similarly, the importance of being the child ’ s biological mother is over-emphasized on this application; moreover, this mother is employed and is not, therefore, herself available to parent all day every day. In any event, Parliament has stated that the maximum contact principle applies to parenting regimes and the courts have said that this principle applies unless the application of the principle is not in a child ’ s best interest; the mother has not provided any explanation of why Parliament ’ s standard is not the appropriate standard here. 4.

Conditions relating to access parenting [ 20 ] The conditions of the interim order of July 26, 2012 relating to the exercise by Mr. Rasmussen of his parenting time, other than the provision relating to the police enforcement clause, shall continue.

The court realizes that the condition relating to communication in writing will impose some hardship on the father who apparently suffers from a learning disability which makes it difficult for him to read and write; nonetheless, it seems that he is able to obtain assistance to communicate in writing and a record of writing is always helpful to a court to decide on the credibility of counter-allegations made by parents against each other. [ 21 ] In addition to the terms of the previous order, the mother asks that the court order that, even if Mr.

Rasmussen obtains a driving licence, because of the head injury he suffered in January 2012, he should not be allowed to drive a vehicle in which his daughter is a passenger. In the unusual circumstances here, I uphold the mother ’ s concern on this issue. If Mr. Rasmussen is, as he asserts, medically unable to maintain employment because of his head injury, then his injury may be so serious - leading to potential black-outs etc. - that he is not a safe driver. I have concluded that the issue of Mr.

Rasmussen ’ s income for purposes of child support must be tried; in connection with that issue, there will undoubtedly be an opportunity to explore any medical condition from which the father is currently suffering. If, prior to the trial of the issues, Mr. Rasmussen produces both a driver ’ s licence and a doctor ’ s opinion to the effect that the head injury suffered by Mr. Rasmussen in January 2012 does not affect his ability to drive, then Mr. Rasmussen would, of course, be entitled to drive a vehicle in which his daughter is a passenger. [ 22 ] Ms. Swanson asks the court to impose a condition that Mr.

Rasmussen not use firearms while his daughter is in his care. Ms. Swanson advances no basis for this restriction, so it will not be imposed. [ 23 ] Ms. Swanson asks the court to impose a condition that Mr. Rasmussen not consume alcohol or non-prescription drugs 24 hours prior to or during his parenting time. There is no need to impose a condition relating to non-prescription prohibited drugs which is what I assume Ms. Swanson has in mind; the law forbids the ingestion, possession and trafficking of such drugs at all times. As to alcohol, the restriction requested by Ms.

Swanson is more severe than any restriction found in the law and she has not established any basis for it; therefore this requested restriction will not be imposed. 5. Child support [ 24 ] Ms. Swanson asks that child support be set according to the Federal Child Support Guidelines or on the basis of $800.00 per month, commencing April 1, 2012. Ms. Swanson is frustrated by what she characterizes as a failure to provide reasonable and accurate disclosure concerning income. Mr.

Rasmussen, who earned approximately $90,000.00 a year in 2011, responds that he suffered a workplace accident in January 2012 and that he underwent surgery in the summer of 2012 and that both of these events negatively affected his ability to earn income. He also suggests that, as a result of a his functional illiteracy, he has unique challenges in finding suitable employment and that it will not be easy for him to replicate his 2011 level of income. In light of the positions taken by the parties on the issue of child support, it will be necessary to try that issue. Mr.

Rasmussen, who maintains that $90,000.00 is not a correct guideline, will be responsible for bringing the issue of child support to trial. [ 25 ] A court could, on the basis of circumstantial evidence, conclude that a parent is voluntarily unemployed or under-employed with a view to avoiding child support. However, given Mr. Rasmussen ’ s medical history, the court is unable to come to such conclusion on the basis of the evidence presented at this special chambers hearing. 6. How will the parenting and child support issues be tried?

[ 26 ] The parties have been separated since 2010 and they have brought at least two interlocutory applications; it is difficult to understand why all issues arising out of the breakdown of their marriage have not been dealt with during this relatively long interval. A trial should now be arranged so that issues in dispute can be settled, at least in principle. [ 27 ] Ms. Swanson has filed a counter-claim in these proceedings. She is the one requesting that Mr.

Rasmussen ’ s conventional rights of custody as an adjunct of guardianship be limited; therefore, she will be responsible for bringing the parenting issues to trial. She will have to examine the pleadings to determine whether the pleadings accurately set out the nature of her claim as of this date and whether she requires any additional pre-trial process. She will have to comply with Form 37, and that includes the obligation to engage in some form of pre-trial alternate dispute resolution; the resolution efforts which the parties have engaged in to date will not satisfy the requirements of Form 37.

Until there is a trial decision on the parenting issues, Ms. Swanson will be bound by the parenting provisions set out in this decision. [ 28 ] Mr. Rasmussen is the party who maintains that $90,000.00 is not the correct guideline for the assessment of his income relative to child support. He will therefore have the obligation to bring the child support issues to trial. However, the court cannot, as in the case of parenting, leave the child support situation totally in Mr.

Rasmussen ’ s control: he would have no incentive to depart from the current regime which requires him to pay only $500.00 per month in child support. Therefore, if Mr. Rasmussen has not, by June 30, 2013 had the issue of child support tried, then, on July 1, 2013, his income for child support purposes will be deemed to be $90,000.00 gross per year. Mr. Rasmussen should immediately assess the pleadings to determine if he has fully and accurately stated therein his position relative to child support. He will then have to determine whether he requires any additional pre-trial process.

He will have to satisfy the requirements of Form 37 to enter the child support issue on the trial list and no settlement efforts in which he has engaged to date will satisfy the requirements of that form to have some type of pre-trial alternate dispute resolution. [ 29 ] As will be seen from the above, it is in the financial and emotional interest of both parties for them to cooperate in setting down one trial that will deal with both the parenting and the child support issue.

However, if such cooperation proves impossible, each will have to arrange for a separate trial to resolve the issues in which they are primarily interested. Each of the parties is, of course, entitled to bring an application for advice and direction in relation to the trial of the issues. 7. Costs [ 30 ] In light of the determinations which I have made on this special chambers application, each party will bear their own costs of the special chambers application. Heard on the 25 th day of October, 2012. Dated at the City of Edmonton, Alberta this 20 th day of December, 2012. J.B. Veit J.C.Q.B.A. Appearances:

Navdeep Virk, Virk Law for Mr. Rasmussen Christopher R. King, Carr Quinn King for Ms. Swanson