CLD v CMD, 2013 ABQB 523

Court of Queen ’ s Bench of Alberta Citation: CLD v CMD, 2013 ABQB 523 Date: 20130923 Docket: 4803 160711 Registry: Edmonton Between: CLD Applicant - and - CMD Defendant Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _________________________________________ ______________ [ 1 ] The Applicant mother applies to have the primary residential care of her children returned to her given that she had traditionally been the stay-at-home primary caregiver to the children through most of their lives, until the March 28, 2013 Order made in this Court which gave primary residential care of the children to the father. [ 2 ] There are two children of the marriage who are presently 5 and 7 years of age.

There is another child who is currently 2 years old for whom the Defendant father is not the biological father, but who nevertheless was declared to be in loco parentis pursuant to the March 28, 2013 Order. [ 3 ] These parties began their relationship in April 2005, when the mother was 16 years of age and married in November 2006, on the mother’s 18 th birthday. The father was 27 years of age at the time of the marriage. The parties then separated in March 2012.

[ 4 ] The separation was quite difficult as the mother by this time was involved with another man, and the father complained about the mother’s new partner, and her care of the children to police and to Child Protective Services (“CPS”) on numerous occasions. [ 5 ] Notwithstanding significant involvement by the police and by CPS, all matters appear to have presently been resolved although not without a great deal of difficulty at times.

It appears that there are no longer any child protection concerns regarding the children being in the residence with the mother and her new boyfriend. [ 6 ] As part of the difficult process that occurred between these parties, an Assessment Report was done by Perlita Torres, a Registered Psychologist in the City of Edmonton. In a lengthy 30 page report issued in February 2013, Ms. Torres does not appear to conclude that there is anything major wrong with any of the parties involved in this case in terms of their parenting skills.

It is noted however that this report was a Parenting Assessment, and was not nearly as comprehensive as a Bilateral Assessment which would involve home visitations, parent-children observation and interviews of significant people involved in the children’s life. The Court was not provided as part of the Parenting Assessment any recommendations as to the best interests of the children. [ 7 ] The father has also applied for a slight variation of the existing Court Order dated March 28, 2013, but continues to oppose any change to the children’s primary residential care back to the mother.

The father also opposes any shared parenting arrangement given that it is his position that the mother is not yet ready to assume a greater responsibility for parenting the children, and given her alleged difficulties with her current partner. The mother has recently had a fourth child with her current partner. The father points out that he has had the primary residential care since early October 2012, and he believes that it is in their best interest that this continue.

He would like the children returned to him earlier on the mother’s access weekday visits so that he can better organize them for going to school. [ 8 ] In addition to the mother submitting that all of the father’s allegations have now been resolved in her favour, the mother also points out that the father now has 8 children and 4 to 5 adults residing in his residence in his new relationship in a three bedroom house.

This is as opposed to the mother’s “roomy” house as described by the Psychologist in which the mother and her new partner would reside with their four children. [ 9 ] Initially upon separation, the mother had the primary residential care of the children and had a Court Order issued in the Provincial Court of Alberta, Stony Plain in April of 2012 whereby she had primary residential care, and the father had parenting time each weekend. Since early 2012 the father has had primary residential care of all three children, which has been facilitated by Children Services.

The father obtained an Order in Provincial Court, Stony Plain confirming primary residential care on an interim basis but that Order was rescinded in November 2012 due to procedural irregularities. Children Services then intervened and obtained a Supervision Order, through which they placed the children in the care of their father on November 1, 2012. [ 10 ] Pursuant to an Order issued in this Court on March 28, 2013, the mother was granted access to the children as follows: - (

a) Saturdays from 9:00 a.m. until 8:00 p.m. Sundays; (

b) Tuesdays and Thursdays from Noon to 6:30 p.m. with respect to the two biological children, and from After school to 6:30 p.m. for two of the children, and for the remaining child from After school to 6:30 p.m.; (

c) Wednesdays from Noon to 8:00 p.m. for one of the children, and from After school to 8:00 p.m. for the other two children. The mother was ordered to be responsible for all pick-ups and drop-offs. [ 11 ] The mother now proposes at this Special Family Law Chambers Hearing to have the children from Sunday evening through to Friday, at which point he father would pick the children up from school, or from her residence after work on Fridays and keep them for the weekend, returning them Sunday evening at 7:00 p.m.

It is submitted that this would eliminate or reduce the need for the father to have a nanny, and eliminate the shuffling of the children between homes during the school week. Currently the mother already has the children for Tuesday, Wednesday and Thursday evenings, but not overnight. [ 12 ] Alternatively, the mother proposes a shared parenting arrangement based on one week on/one week off between the residences, the exchange to occur on Friday after school, or after work in the father’s case.

Conclusion [ 13 ] I conclude that the Court needs a Bilateral Assessment before it makes any substantive long term conclusions with respect to where these children should live. As such, the father who is in by far the best financial position will advance all the costs to Ms. Torres, the Registered Psychologist who performed the recent Parenting Assessment, to do a Bilateral Assessment.

Until the results of the Bilateral Assessment are known, I conclude that the mother should have additional parenting time, but the children ought to remain in the father’s primary care. [ 14 ] Therefore, the mother will have additional parenting time on Mondays and Fridays from after school until 8:00 p.m. The return time for the children on Wednesdays has been 8:00 p.m. since the March 28, 2013 Order.

Due to the participation of two of the children in Tae-kwon-do on Tuesdays and Thursdays, the Tuesday and Thursday return times will continue as they have been after Tae- kwon-do has been completed. [ 15 ] In terms of pick-up and drop-off, the father will pick-up the children upon the completion of the mother’s access visits on Mondays, Wednesdays, and Fridays; as well on Sundays every second weekend when she has the children.

The balance of the travel will be dealt with by the mother since it is she that takes the two children to Tae-kwon-do classes on Tuesdays and Thursdays. [ 16 ] With respect to Christmas access, the father apparently had the children during Christmas 2012, so it is ordered that the mother have the children from December 19 to December 24 at 8:00 p.m. this Christmas, and from January 3 to January 5, 2014 until 6:30 p.m.

[ 17 ] These parenting times and access arrangements ordered will be reviewed again following the completion of the Bilateral Assessment. Heard on the 10 th day of September, 2013. Dated at the City of Edmonton, Alberta this 23 rd day of September, 2013. Donald Lee J.C.Q.B.A. Appearances: James E. Power Coulter & Power for the Applicant Timothy J. Snyder Snyder & Associates for the Defendant