Oosterhuis v Oosterhuis, 2015 ABQB 757

Court of Queen ’ s Bench of Alberta Citation: Oosterhuis v Oosterhuis, 2015 ABQB 757 Date: 20151130 Docket: 4803 168180 Registry: Edmonton Between: Tammy Maureen Oosterhuis Applicant/Plaintiff - and - Eric William Oosterhuis Respondent/Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] On this special chambers application, Ms. Oosterhuis asks for joint custody of the children with primary parenting responsibilities for the parties’ two teen-aged children, and for an order severing the corollary relief claim from the divorce claim. At the moment, the mother has primary parenting responsibility for the older child, who does not want to see her father. The father has primary parenting responsibility for the younger child and the mother sees her son on alternate weekends.

The mother proposes that the father have alternate week-end access to the younger of the parties’ children, along with scheduled telephone contact with the younger child three times a week and with the older child once a week; the children could, of course, call their father any time. She also proposes that

the respondent have parenting time with the older child every second Wednesday evening and on alternate Sunday afternoons during the father’s access time with the older child’s sibling. [ 2 ] As an alternate proposal, the mother suggests that the older child reside with her and that the parties share the parenting of the younger child on a week-on, week-off schedule. [ 3 ] The mother also proposes that the parties be required to prepare a Practice Note 8 – Parenting Time/Parenting Responsibilities Assessment. [ 4 ] The father states that he has always accommodated all of the children’s desires as to where they want to sleep and live.

He therefore suggests that, at a minimum, the current parenting arrangement should continue. [ 5 ] Ms. Oosterhuis’ application for severance of the divorce claim from the claims for corollary relief is allowed. There is no divorce issue to be tried: the parties agree that the grounds for divorce exist and each agrees that they want a divorce. Child support is in the process of being determined by the court; this constitutes a “reasonable arrangement” within the meaning of s. 11 of the Divorce Act .

The granting of a divorce will not prejudice either party with respect to any of the contested issues; nor is there any other unfairness in severing the claim for divorce from the other claims in the lawsuit. Indeed, the granting of a divorce may relieve any pressure on the children to attempt to reconcile their parents. [ 6 ] The father states that that he accommodates the children's desires about where they wish to live; that is a reasonable position given the ages and apparent maturity of the two children, and apparent ability of each of the parents to meet their children’s needs.

However, the evidence on this application does not support the father’s position. Rather, the father appears to have pressured his son to live with him and appears not to have accepted his daughter's wish not to communicate with him.

Therefore, on an interlocutory basis until the children’s wishes can be ascertained with the assistance of an expert, the parties' son will live with his sister and their mother; the father, who asserts that the children are willing to live with him, shall pay for an independent parenting expert to hear the children's voices about where they want to live and to inform the court of those wishes. [ 7 ] In the result, the mother’s proposal for primary parenting responsibility for both children is accepted; the new parenting arrangement will start at the beginning of the school year in January 2016.

The father will have alternate week-end access with his son and scheduled telephone access with his son three times a week. The father will have scheduled telephone access with his daughter every second Wednesday; he will also have in person access with his daughter on Sunday afternoons of the alternate weekends in which he has access with his son. Cases and authority cited [ 8 ] By Ms. Oosterhuis : J.G. McLeod, Child Custody Law and Practice , c. 4 – Factors Governing the Award of Custody, 4(12) Separation of Siblings . [ 9 ] By the court : Miles v Miles 2004 ABCA 361 ; Kincl v Malkova 2008 ONCA 524 . 1.

Background [ 10 ] The parties began to live together in 1996 and married in 1999. They are the parents of two teen-aged children, a15 year old and a 13 year old. The parties separated at the end of 2013. [ 11 ] There is a dispute between the parties about the amount of time each of them spent parenting after the separation in 2013. The mother states that the children stayed with their father in the matrimonial home for two days and then spent two days with her in her father’s home.

The father states that he “had full custody of both children from December . . ., 2013 to July 31, 2014 (full custody meaning the children would sleep in the home with me more than 60 percent of the time). Both children would sleep in the home with me 5 days each week and 2 days each week with Tammy until the end of July 2014. . . .

At the end of July our daughter . . . was acting so miserable I told her she could go and stay with her mother for the entire summer holidays if she wanted to. . . . . [Our daughter] never came back home and barely communicates with me at all. . . . [Our son] alternated each week between Tammy and myself for the month of August 2014. After September 1, 2014 until present day I have full custody of [our son] ([our son] resides with me more than 60 percent of the time). [Our son] stays with me as that is his wish.” [ 12 ] On July 30, 2014, the parties’ daughter took a video of her encounter with her father.

The incident arose because her brother had run down to the basement to avoid an incident with her father and she had gone down to the basement to check on him. Her father followed and told her to leave. When she hesitated, her father grabbed her by the shoulders and pushed until she was on the ground, stating, “I can take you down”. He then grabbed her by the feet and tried to pull her up the stairs. Referring to this video, Mr.

Oosterhuis says “I’m sure Tammy . . . encouraged [our daughter] to videotape me at my angriest point ever.” [ 13 ] On Sunday, July 5, 2015 when the parties’ son asked his father if he could stay with his mother and sister for a couple of extra days, the father sent the following four texts to his son over a span of some 10 minutes: Yet you can always message your mom and [your sister] when you’re here. . . . Let me guess. Tomorrow you will tell me your IPad battery was dead. Again! . . . Do you even remember what you said to me just before you left on Friday?

. . . This sucks. How come it’s always your mom doing shit to me. What the hell did I do to deserve any of this shit. [ 14 ] At about the same time, this exchange of messages occurred between the parents. Mother: Hi Eric, can you tell me why [our daughter]’s phone is not working? Did you cancel it? Father: Can you tell me why [our son son] isn’t home with me? Did you kidnap him again? Why can’t you have the decency to communicate with me first. Mother: Our week to week starts after school is out, and [our son] wanted to stay. Is [our daughter]’s phone cancelled Father: I never agreed to that.

If [our daughter] isn’t willing to stay here you can forget you. You can’t do whatever you want Tammy. My lawyer will contact your lawyer or the police. Mother: Is [our daughter]’s phone cancelled? Father: Yes. I asked you to take her cell phone billing over a year ago but you refused. She never communicates with me. She couldn’t even wish me a happy Father’s Day nor happy birthday, etc. This is what happens when you won’t communicate. [ 15 ] There has not yet been any parenting order in these proceedings. In April 2015, Ms. Oosterhuis brought an application for interim parenting, child support and disclosure.

The court granted Ms. Oosterhuis an interim order for child support in the amount of $168.00 per month commencing May 1, 2015; Ms. Oosterhuis asserts that she has not received any of the child support ordered. In June 2015, the parenting issue was adjourned to the hearing of September 16, 2015, and the issues of child support and financial disclosure were adjourned sine die . Since then, Mr. Oosterhuis has not appeared at Questioning despite being served with a formal appointment and the required attendance fee; Ms. Oosterhuis anticipates bringing an application to compel Mr.

Oosterhuis to attend Questioning at least on the financial issues. 2. Refusal of adjournment [ 16 ] Applying for an adjournment to replace the lawyer who has recently ceased to act for him, Mr. Oosterhuis indicated that, this time, he would hire a private lawyer rather than relying on a legal aid lawyer given his experience that his two previous legal aid lawyers had been incompetent. His capacity to hire a private lawyer arises from his acknowledged receipt of an inheritance from his parents of at least some several hundred thousand dollars, although Mr.

Oosterhuis asserts that the amount of the inheritance is not as high as the $600,000.00 claimed by his wife. Mr. Oosterhuis asserts that his personal estate was fully disclosed to Legal Aid. It does not seem to be appropriate for Legal Aid to be providing legal assistance to a person in Mr. Oosterhuis’ position, especially at a time like this when funding for Legal Aid is in crisis. Either Legal Aid does not ask the appropriate questions or Mr.

Oosterhuis did not disclose his inheritance when he obtained the services of two Legal Aid lawyers. [ 17 ] In any event, I concluded that an adjournment was not necessary because: - Mr. Oosterhuis had already received advice from two family law specialist lawyers; - Mr. Oosterhuis was as familiar with the facts as any lawyer could be; and, - this appeared to be a fact-driven rather than a law-driven situation. I assured Mr. Oosterhuis that, if the facts were not clear, there would have to be an adjournment for a trial. 3.

There are sufficient incontrovertible facts to allow the court to come to a conclusion on the contested issues which is fair to both parties [ 18 ] As will be set out below in relation to each of the issues that is disposed of, there are sufficient incontrovertible facts to allow the court to come to a conclusion on the contested issues in a way that is fair to both parties. [ 19 ] There are, of course, a great many points on which the parties disagree.

However, as will be shown below, on the two issues of severance and the appropriate parenting regime both the facts, and the law are sufficiently clear to allow the court to make a fair decision. 4. Severance of corollary issues [ 20 ] Ms. Oosterhuis asks for severance of corollary relief from the divorce. She believes that her husband is attempting to reconcile and is using the children to try to effect reconciliation. [ 21 ] Mr. Oosterhuis states “I have no desire to reconcile with Tammy now.

Not after what she’s done, she left me days after my mother passed away and I could never trust her again”. [ 22 ] It’s clear, therefore, that both parties want a divorce. The issues are, therefore, whether the grounds for divorce have been established, whether s. 11 of the Divorce Act has been satisfied, and whether there is any other reason why it would not be fair to sever divorce from the other issues. [ 23 ] The pleadings in this lawsuit include corollary relief issues under the Divorce Act , and perhaps property issues as well.

While it is a general principle that all issues which are pleaded in an action should be tried together, the law has long recognized that

summary judgment can be given on one part of the pleadings if there is no issue to be tried with respect to that part of the claim. Here, both parties agree that the separation occurred in December 2013, that the parties have not lived together in a conjugal relationship since then, and

that both want a divorce. Therefore, there is no substantive issue to be tried on the narrow point of the sufficiency of grounds for the divorce itself. [ 24 ] For administrative reasons, the court can’t issue a divorce judgment on this special chambers application; for administrative reasons, the most the court could do is to sever the claim for a divorce from the other claims and grant leave to Ms.

Oosterhuis to proceed to a divorce without a hearing. [ 25 ] When the claim in issue is a claim for divorce, the Divorce Act itself requires that the court satisfy itself that adequate arrangements have been made for the support of any children of the marriage.

Here, child support is in the process of being determined by the courts; I am satisfied that the commitment of both parents to this process constitutes a “reasonable arrangement” within s. 11 of the Divorce Act . [ 26 ] Alberta does not have the kind of practice rule which exists in some Canadian jurisdictions, such as Ontario’s Rule 12 of the Family Law Rules, concerning severance of claims in divorce proceedings. Typically, those rules repeat the requirement set out in s. 11 of the Divorce Act and add a requirement that neither party should suffer prejudice as a result of the severance.

The introduction of new rules of practice in Alberta in 2011 has not changed the law on the issue of severance of divorce claims from other claims in divorce proceedings; the law in Alberta remains as stated in Miles , i.e. severance can be granted where it is fair to do so. This comprehensive formulation takes in not only compliance with the Divorce Act , and prejudice to either party, but any other type of unfairness which may exist. [ 27 ] Here, the severance of the divorce from the remaining issues in the pleadings will not negatively affect either of the parties.

Nor is there any other potential unfairness which may arise. Rather, in the circumstances here, the granting of a divorce may relieve the children of the marriage from any pressure relating to a potential reconciliation of their parents. [ 28 ] In

summary then, the grounds for divorce are made out, the statutory requirements for granting a divorce judgment have been satisfied, and there would be no unfairness to either party in granting a divorce judgment. Therefore, the claim for a divorce is severed from the other claims and Ms. Oosterhuis is granted leave to apply for a desk divorce. 5.

Parenting [ 29 ] The father asserts: “The defendant has accommodated all of the children’s desires as to where they want to sleep and live”. [ 30 ] Given the ages and apparent maturity of the children, and the apparent ability of each of the parents to meet their children’s needs (as discerned, for example, by the mother’s agreement to shared parenting of the parties’ son), this is an appropriate position: Kincl . [ 31 ] . However, the evidence on this application does not support the father's position.

Rather, the father appears to have pressured his son to live with him and appears not to have accepted his daughter's wish not to communicate with him. [ 32 ] Therefore, on an interlocutory basis until the children's wishes can be ascertained with the assistance of an expert, the parties' son will live with his sister and their mother. The father, who asserts that the children are willing to live with him, shall front-end the cost of an independent parenting expert who will hear the children's voices about where they want to live and interpret that information for the court.

Once the court makes a decision on the children’s wishes, the court can then hear argument about whether the cost of ascertaining those wishes should be shared. [ 33 ] In the result, the mother's proposal for primary parenting responsibility for both children is accepted; the new parenting arrangement will start at the beginning of the school year in January, 2016. The father will have alternate week-end access with his son and scheduled telephone access with his son three times a week.

The father will have scheduled telephone access with his daughter every second Wednesday; he will also have in person access with his daughter on Sunday afternoons of the alternate weekends in which he has access with his son. [ 34 ] In the result, it is not necessary to consider the issue of whether the siblings should be separated, as raised by the mother. Nor is it necessary at this stage to consider a Practice Note 8 Parenting Time Assessment. 6. Costs [ 35 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. . Heard on the 16 th day of September, 2015.

Dated at the City of Edmonton, Alberta this 27 th day of November, 2015 .

J.B. Veit J.C.Q.B.A. Appearances: Rosemary Boll, Family Law Office, Legal Aid for the Applicant, Ms. Oosterhuis Eric Oosterhuis, on his own behalf