S.L.G. v P.G.G., 2013 ABQB 394

Court of Queen ’ s Bench of Alberta Citation: S.L.G. v P.G.G., 2013 ABQB 394 Date: 20130715 Docket: 4803 146067 Registry: Edmonton Between: S.L.G. Plaintiff/Applicant - and - P.G.G. Defendant/Respondent _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _________________________________________ ______________ Introduction [ 1 ] This is an application for a variation in interim custody of the parties’ seven- year old son, G. The parties are not yet divorced and have not resolved matrimonial property issues.

Background [ 2 ] The parties have interim joint custody of G. and currently share parenting of him. The shared parenting arrangement has been in place since an interim consent order was obtained on June 18, 2008. At that time, G. was not quite two, and the parents established a week-on/week-off routine. Mr. G. resided in Holden, Alberta, and Ms. G. resided in North Edmonton.

[ 3 ] The parties have a daughter, G.B., nearly seven years older than G. She is Ms. G.’s child from a previous relationship, and while. Mr. G. did not adopt G.B., he clearly stands in loco parentis to her. When the parties separated, G.B. preferred to stay in Holden with her step-father and grandparents, and during most of the period since separation, G.B. has been with Mr. G. Ms. G. has had access on three weekends per month as well as an equal share of holiday time.

While there have been issues with G.B. dealt with during the many applications I have heard, most of the contentious items have been with respect to G. [ 4 ] Following a Family Law Special Chambers application in June, 2010, I continued the shared parenting regime. At that time, I provided that Mr. G.’s parents be permitted to transport G. I seized myself with the matter and directed a review in 12 months’ time with one of the issues to be addressed being Ms. G.’s participation in transportation arrangements. [ 5 ] When the matter was reviewed, G. was about to start kindergarten. Ms.

G. was by then sharing the driving. One of the main issues was where G. should go to kindergarten: Edmonton or Holden. G. had been enrolled in Edmonton, going two days per week. The review was for various reasons not completed until March, 2012. For that review, I had the benefit of a Practice Note 7 intervention report from psychologist Melodie Sanford dated March 10, 2012. [ 6 ] In her report, Ms. Sanford noted that all of the scenarios for G.’s custody contained “notable disadvantages”. The main disadvantage being the amount of time spent by G. travelling to and from Edmonton. While Mr.

G. worked in Edmonton and was able to bring G. to Edmonton with him each morning (an hour drive), Mr. G. began work at 7 a.m. so G. had to be dropped off at daycare before 7 a.m. and then taken to school. Following school, on his father’s weeks, G. had an hour long drive back to Holden. She noted (and I wholeheartedly agreed) that such an arrangement was not sustainable through elementary school. [ 7 ] Ms. Sanford recommended that the week-on/week-off arrangement continue, and that G. continue his schooling in Edmonton.

She recommended that this arrangement be reviewed in four years’ time. [ 8 ] My order, dated March 27, 2012, continued the shared parenting and continued G.’s schooling in Edmonton. I was, however, concerned about the effect of the travel on G. and directed that the situation be reviewed in December, 2012 or January, 2013.

My rationale was that G. would have then had a four-month period of full-time school (as opposed to two or three days a week in kindergarten) and would have experienced the travel five days a week. [ 9 ] In December, 2012, in the face of conflicting reports from the parents as to how well G. was doing and how he was tolerating the travel, I directed that an updated report be provided by Ms. Sanford. G was travelling extensively on one of the days per week he was with his mother. An updated report was provided dated April 12, 2013. In that report, Ms.

Sanford recognized that the shared parenting arrangement was preferable, but concluded that it was not sustainable because of the distance between the parties. Her recommendation (albeit somewhat hesitantly) was that G. reside with his father in Holden and attend school there. G. had expressed a preference towards attending school in Holden. Ms. G. would become an access parent, with three weekends per month as well as flexibility during the summer. Ms. Sanford recommended that this arrangement be reviewed in four years’ time. [ 10 ] At a conference with me on April 18, 2013, Ms.

G. expressed concern about the amount of time G. would be spending with his grandparents (Mr. G.’s parents) if Ms. Sanford’s recommendations were implemented and she expressed concern about the grandparents’ ability to parent. She referenced difficulties G.B. had experienced with her grandmother. [ 11 ] Because of these concerns, I directed that Ms. Sanford meet with the grandparents and provide a risk assessment with respect to the grandparents in their potential role as caregivers to G. Ms. Sanford provided a report dated June 10, 2013.

Her report provides comfort that the grandparents are fit and able caregivers, allaying any concerns about role they may play in G.’s upbringing. [ 12 ] The application was argued before me on June 25, 2013. Ms. G. argued that the shared parenting arrangement should continue, and that G. should continue in school in Edmonton. Mr. G. argued that G. should move to Holden and attend school there. He submitted that Ms. G. should have the same access to G. as she has with G.B. -- three weekends per month. I reserved decision.

Analysis [ 13 ] There are a number of factors to consider on this application, although the primary consideration is what is in G.’s best interests. The starting point for my analysis is to recognize that G. is bonded with both parents, expresses love for both parents, and seems to be happy and behaving appropriately in the family context, at school and socially. No concerns have been expressed with respect to G. other than the fatigue he experiences as a result of the time spent traveling to and from Edmonton on his father’s access weeks. Ms.

G.’s travel during her access weeks has stopped. [ 14 ] This is a situation where shared parenting would be in G.’s best interests but for the distance between the parents. The early awakening time, the early morning travel time, the amount of time at day care before school and the amount of travel time back to Holden has those school days subsumed by travel and school, with no time for much else.

His father reports that G. spends much of the time in the car sleeping, such that it cannot be described as father-son bonding time which might otherwise be beneficial. [ 15 ] I expressed during case management, and especially when I continued the shared parenting arrangement past kindergarten, that the arrangement was temporary and not sustainable. I recognize that there are many situations where a child spends a considerable amount of his or her school day traveling to and from school.

Many children get up early in the morning to facilitate transportation to school, and many children are taken to daycare well before school starts because parents have jobs to get to. [ 16 ] While such arrangements are necessary in some circumstances, when they can be avoided, that would generally be in the best interests of the child. Here, the only justification to have G. do so much travelling is to accommodate shared parenting. In these circumstances, the benefits to G. are doubtful, and unless the benefits outweigh the disadvantages, other alternatives should be considered.

[ 17 ] There are three choices here. One is to continue the status quo, which is the option favoured by Ms. G. The second is to have G. reside primarily with Ms. G., attend school in Edmonton, and see his father on weekends and holidays. The third is to have G. reside primarily with Mr. G., attend school in Holden, and see his mother on weekends and holidays. [ 18 ] I do not view the first alternative, the preservation of the status quo, as a viable option. Despite Ms. G.’s view that G. is doing fine, that view is in conflict with what is reported by Mr. G. and what has been observed by Ms. Sanford. [ 19 ] Ms.

Sanford’s recommendation is that G. reside primarily with his father and attend school in Holden. The benefits of that are: 1. That is G.’s preference, at least as expressed to Ms. Sanford; 2. G. is not required to leave early for school or go to daycare before school as his grandparents are available to get him up in the morning, take him to school and pick him up after school; and 3. This arrangement maximizes his contact with his sister. [ 20 ] The concern expressed by Ms.

Sanford is the potential effect on G.’s relationship with his mother. [ 21 ] Having G. reside primarily with his mother and attend school in Edmonton alleviates the concern about G.’s relationship with his mother, but the corollary is likely true: less time with his father may affect their relationship. [ 22 ] I do not view maximizing time between the siblings as a major consideration, and especially not one that would be more important than maximizing time with parents. G.B. is some seven years older than G.; she is nearly finished junior high school and he will be in Grade 2 in the fall.

They have little in common and share few if any activities. Since their parents began shared parenting of G., they have spent alternating weeks together on the weekdays, but have spent alternating weeks and three weekends per month apart.

Nevertheless, keeping siblings together is traditionally viewed as a positive factor and is certainly more positive than negative here. [ 23 ] There are no educational considerations which favour Edmonton over Holden or vice versa; there are no activities G. is in that suggest one location over the other. [ 24 ] What favours Holden over Edmonton is the availability of caring, competent and committed grandparents to assist with G.’s before and after-school care.

There is also the ability of G. to participate in after-school activities because his grandparents are available to pick him up for school and take him places. If primarily resident with his mother, he must go to the daycare she works at and stay there until his mother finishes work. Again, while many children go to daycare after school, there may be advantages to being able to participate in activities with school friends or neighborhood children. G. has the benefit of an extended family in Holden, and more caregivers there.

Being able to spend more time with his sister, or interacting with his sister, is a minor benefit but is still on the plus side of the equation. [ 25 ] G.’s expressed preference is a very small positive for Holden; at his age, his views should not be ignored but are not entitled to much weight. [ 26 ] In the end, the only downside to Holden is the risk such a move may have on G.’s relationship with his mother. The only positive to Edmonton is that G.’s relationship with his mother may be enhanced.

The negative to that is that such a change may negatively affect G.’s relationship with his father. [ 27 ] The arrangement with respect to G.B. appears to have worked reasonably well. I was made aware of some friction between G.B. and her grandmother (who has been providing significant parenting to G.B. before and after school), but those issues appear to have been resolved. Ms. Sanford recommends that G. spend three weekends per month with his mother, similar to the arrangements with G.B.

I canvassed during argument whether it might be preferable for G. to continue to reside in Edmonton with his mother and spend three weekends per month with his father. That would maximize Mr. G.’s parenting time when he is not working and available to spend considerable time with G. Generally, the weekends are the most valuable parenting time (when the parents do not have to work on the weekends) as the entire time is available for family activities. [ 28 ] Mr. G.’s position is that he would prefer to have. G. on the weekdays and have him attend school in Holden.

That being the case, I am not going to force that arrangement over his objections and against Ms. Sanford’s recommendations. [ 29 ] I recognize, of course, that Ms. Sanford’s recommendations are only that, and I must exercise independent judgment on the matter. I expressed to counsel and the parties on the application that this was a very difficult and close call.

There is no solution which is ideal, or which has no risks. [ 30 ] When I look at the benefits and detriments of the two remaining solutions, I am drawn to G. residing primarily with his father, enjoying the benefits of a close relationship with his grandparents, living primarily with his father and sister and going to the school of his choice. [ 31 ] That places Ms. G. in the position of being an access parent, but she will enjoy three weekends per month with G. She already has three weekends per month with G.B., and the two children will spend more time together under this arrangement than they presently do.

If G. were to reside primarily with Ms. G., the siblings would see each other on perhaps one weekend per month, and on some of the holiday time. I leave it to the parents to decide which three weekends G. will spend with his mother; whether it be all of the same weekends with G.B., or different weekends which might allow each child a monthly weekend alone with one of the parents. That is a

parenting decision, and not one that should be decided by a stranger to the family. [ 32 ] There are a few months per year where there are five weekends, and in those months Ms. G. will have three of the five. Where the weekend is a long weekend, the party with the weekend is entitled to the extra day. [ 33 ] My understanding is that Mr. G. works Monday through Friday. Ms. G. works at a day- care and is able to care for G. there.

For days like professional development days, where there is no school on a Friday but it is not a holiday, G. should spend those days with his mother. [ 34 ] To minimize any negative effects on G.’s relationship with his mother, holidays other than weekends should be divided disproportionately in favour of Ms. G. From the end of school in June until the beginning of school in September, there are generally nine weeks. Ms. G. should have G. for five of the nine weeks. She should have spring break. This apportionment will give her two extra weeks of time with G., to offset some of the missing time. [ 35 ] Ms.

G. has raised concerns over difficulties with pickups and drop-offs, as well as difficulties between the parties as to

interpretation of previous orders and arrangements in this matter. It is incumbent on the parties, with a special onus on Mr. G. because of the changes ordered herein, to use their best efforts to ensure that transitions are smooth and not stressful to the children. Any disagreements over times and school professional development days and the like shoud be resolved in favour of giving Ms. G. greater time with G. to ensure their relationship is not affected by these changes. [ 36 ] This arrangement is reviewable on a change in circumstances. I would consider it a change in circumstances if Ms.

G. moved to a location close to Holden such that a shared parenting arrangement would not involve significant travel time for G. A significant deterioration in G.’s behaviour or his performance at school would also constitute a change in circumstances warranting a review of the arrangements. [ 37 ] Failing a change in circumstances over the school year, I invite either party to seek a review after June 1, 2014.

Summary [ 38 ] Effective September 1, 2013, G. shall be primarily resident with his father in Holden. He will be enrolled in the appropriate school in Holden. Ms. G. will have access as described above, namely, three weekends per month, school professional development days, spring break and five of the nine weeks during the summer months. Heard on the 25 th day of June, 2013. Dated at the City of Edmonton, Alberta, this 15 th day of July, 2013. Robert A. Graesser J.C.Q.B.A. Appearances: Jeffrey Keller for the Plaintiff/Applicant Kenneth F. Slupek for the Defendant/Respondent