Hopkins v. Carr, 2012 ABQB 792

Court of Queen ’ s Bench of Alberta Citation: Hopkins v. Carr, 2012 ABQB 792 Date: 20121227 Docket: FL03 34180 Registry: Edmonton Between: Penny Hopkins Plaintiff (Applicant) - and - Glen Carr Defendant (Respondent} _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In this special chambers application, Ms. Hopkins asks for primary care of the parties ’ 10 year old daughter and some restrictions, including an alcohol restriction, on Mr. Carr ’ s access, exclusive possession of the parties ’ residence and 2008 GMC diesel vehicle, child support based on the respondent ’ s income of a minimum gross yearly income of $200,000.00, and monthly conjugal support of $4,650.00. [ 2 ] Each part of the applicant ’ s claim is contested by the respondent; it is impossible for the court to determine what the facts are.

The parties are therefore directed to have this dispute tried. In bringing the matter on to trial, they must comply with the Rules of Court and with Form 37.

[ 3 ] Until further order of the court, Ms. Hopkins will have primary care of the parties ’ daughter and Mr. Carr will have reasonable and generous access for up to 7 days in one block according to his work schedule, without restrictions relating either to alcohol consumption or to the individuals who may be in the daughter ’ s presence during access periods. [ 4 ] On an interim, without prejudice, basis: the parties will agree on either an immediate listing agreement for the conjugal home or an immediate appraisal of the conjugal home to be paid for by Mr. Carr; Mr.

Carr will have exclusive possession of the 2008 truck; and, Mr. Carr will pay the mortgage, real property tax, insurance, gas, electricity, telephone and other utilities on the conjugal residence, vehicle insurance on the 2008 truck, and the line of credit. Mr. Carr will also pay Ms. Hopkins $1,000.00 per month by way of conjugal support. 1. Need for trial [ 5 ] Virtually every statement in Ms. Hopkins ’ affidavits is contested by Mr. Carr.

There is no independent or other evidence that would assist the court in determining facts which could then lead to the determination of the various issues before the court. [ 6 ] To give only a few examples of the state of the evidence: - Ms. Hopkins asserts that she reported a breach of the restraining order to the police as a result of Mr. Carr ’ s attendance at his daughter ’ s gymkhana event in the summer of 2012. It may be that the original without notice restraining order granted by me was subsequently amended; however, the restraining order I issued applied only to Ms.

Hopkins, not to the parties ’ daughter, and related only to attendance by Mr. Carr at the conjugal residence, not to any other location or presence in Alberta; - Ms. Hopkins asserts that Mr. Carr has an ongoing, and serious, alcohol dependency problem. Mr. Carr acknowledges that he has three convictions for drinking and driving but states that the last of these was registered in 1995; - Ms. Hopkins asserts that she has not re-partnered but she does not dispute Mr.

Carr ’ s evidence about the dates on which she has stayed overnight at a male adult ’ s residence since she obtained the restraining order in May, 2012. - Ms. Hopkins asserts that she suffers medical limitations on her ability to work although she does not present any medical support for that contention; - Ms. Hopkins was 34 years old and had a Grade 12 education and was employed at WalMart when she met Mr. Carr. She is now a co-owner of the conjugal home, a co-owner of the 2008 diesel truck and the sole owner of the 2003 truck. At an asset level, the conjugal relationship appears to have benefited her.

At an income level, her capacity to earn income is disputed as is the geographical possibility of obtaining employment in the vicinity of the rural conjugal home; - Ms. Hopkins asserts that the 2003 vehicle is not suitable for horse-hauling whereas Mr. Carr asserts that it has been adequately refurbished for that purpose. [ 7 ] This is not a dispute which is suitable for determination by way of a special chambers application. The parties need a trial; they should immediately ensure that they take all necessary steps to get ready for a trial as quickly as possible. 2. Parenting [ 8 ] Because of Mr.

Carr ’ s work schedule, it is not possible for him to share parenting with Ms. Hopkins. However, there is no

reason why Mr. Carr cannot parent his daughter when his work

schedule permits. Therefore, although Ms. Hopkins will have primary parenting responsibilities for the parties ’ daughter, Mr. Carr will have reasonable and generous access, giving Ms. Hopkins a minimum of 7 days ’ notice of the blocks of time when he will be able to parent his daughter. During his parenting time, Mr. Carr will, of course, ensure that his daughter attends school and all extracurricular events in which she has been regularly engaged. [ 9 ] Ms. Hopkins requests two types of restriction on Mr. Carr ’ s access, the first relating to alcohol and the second relating to the presence of Mr.

Carr ’ s older daughter from a previous relationship. I will not impose either of these restrictions. In light of the dispute in the evidence concerning Mr. Carr ’ s criminal record and current behaviour, I cannot conclude that there is any objective evidence of a need for an alcohol restriction. In light of the dispute in the evidence about the character and emotional health of Mr. Carr ’ s older daughter, I cannot conclude that there is any objective evidence of danger in exposing the parties ’ daughter to Mr. Carr ’ s older daughter. 3. Child support [ 10 ] On an interim, without prejudice, basis, Mr.

Carr will, commencing January 1, 2013 pay Ms. Hopkins child support based on a gross annual income of $150,000.00, i.e. $1,303.00. This level of income is chosen only because it is close to the level of income which Mr. Carr reported in 2011, although it would be reasonable to assume that he earned more money in 2012 than in 2011. That level of income was also chosen because stands at the end of the standard awards of income; where a support debtor ’ s income is beyond $150,000.00, the court must make a individual assessment of the appropriate level of child support.

That assessment is not possible on the basis of the evidence provided. The court makes no order for the payment of s. 7 expenses at this time as no such expenses have been identified. 3. Conjugal home [ 11 ] The parties are joint owners of the conjugal home.

Because Alberta ’ s Family Law Act may not give property rights similar to the rights set out in the Matrimonial Property Act, the parties will have to ensure that the pleadings which will form the basis for trial adequately reflect their respective legal positions. [ 12 ] One of the very few things which is clear on this special chambers application is that Ms. Hopkins cannot buy out Mr. Carr ’ s interest in the conjugal home. Therefore, while awaiting a trial, either the parties must agree on a listing agreement for the immediate listing of the home, or, if Mr. Carr intends to purchase Ms.

Hopkins ’ interest in the home, he must immediately arrange and pay for an appraisal of the home which can form the basis for an offer to purchase her interest in the property. If necessary, the parties will ensure that the pleadings deal with any uncertainty relating to the principle of advancement in relation to unmarried spouses. [ 13 ] Until the disposition of the conjugal home has been arranged, Ms. Hopkins will have exclusive possession of that home and Mr.

Carr will pay for all mortgage, real property tax, insurance, gas, electricity, telephone and other utilities obligations relating to the conjugal residence. 4. 2008 truck [ 14 ] Until further order of the court, Mr. Carr should have possession of the 2008 truck. He is the only one of the parties who is employed and his access to a vehicle through employment is disputed. Ms.

Hopkins does state in one of her affidavits that she does not think that he should have the truck because he would put so much mileage on it because of his work that the value of the truck would depreciate more quickly than if she were using it and putting on much less mileage. Her position at least reflects Mr. Carr ’ s asserted need for possession of a reliable vehicle which will continue to allow him to earn a living for his family. 6. Conjugal support [ 15 ] I was not able to determine from the evidence presented on this application either the extent of Ms.

Hopkins ’ income from investments, and wealth, or her realistic ability to earn income. It may be that she has regular income from royalties but that the amount of the income varies. As a result of this order, all of Ms. Hopkins ’ accommodation expenses will be paid by Mr. Carr. In addition, Ms.

Hopkins will receive $1,303.00 monthly in child support and she will not be required to use any of that payment to pay her notional contribution to the child ’ s portion of all accommodation expenses since Mr. Carr will, separately, be paying for accommodation. Nevertheless, in order to ensure that Ms. Hopkins has some additional funds available for food, gas, etc., until further order of the court, beginning on January 1, 2013, Mr. Carr will pay Ms. Hopkins $1,000.00 per month by way of conjugal support. Heard on the 24 th day of October, 2012.

Dated at the City of Edmonton, Alberta this 21 st day of December, 2012. J.B. Veit J.C.Q.B.A. Appearances: Erik L. Bruveris, Stillman LLP for Ms. Hopkins Diana J. Gosselin for Mr. Carr