Januario v Januario, 2015 ABQB 765

Court of Queen ’ s Bench of Alberta Citation: Januario v Januario, 2015 ABQB 765 Date: 20151202 Docket: 4803 148529 Registry: Edmonton Between: Manuel Viriato Medeiros Januario Applicant - and – Nancy Raposo Januario Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice J.J. Gill _______________________________________________________ Introduction [ 1 ] This family law matter is under case management. This decision addresses an application by the Applicant Mr. Januario (“the father”) for miscellaneous relief.

Background [ 2 ] These parties were married in 1993 and separated in May of 2008. There is one remaining child of the marriage (“Ethan”) born February 2, 2007. [ 3 ] There have been numerous court proceedings over the years. The parties have at times been represented by counsel. At this time they are self represented. A case management officer, has been assigned to this file and has made several attempts to try and resolve

the issues between the parties. [ 4 ] On January 2 nd , 2015 while both were represented by counsel the parties signed Minutes of Settlement and a Matrimonial Property Agreement (“the Minutes of Settlement”). A Divorce Judgement and Corollary Relief Order based on the Minutes of Settlement was subsequently granted on July 16, 2015. The Minutes of Settlement: [ 5 ] The relevant terms of the Minutes of Settlement and Divorce Judgement are as follows:

a) The parties agreed to have joint custody of Ethan and a Shared Parenting Agreement consisting of equal time sharing on an alternating weekly basis with the exchange to take place on Sundays at 8:00 p.m.

b) Mrs. Januario (“the mother”) will pay the father

Section 3 Child Support in accordance with

Section 9 (the set-off principle) of the Federal Child Support Guidelines based on her having a guideline income of $60,621.00 and the father with a guideline income of $19,309.00. The mother will pay the amount directly into the father’s Royal Bank of Canada account. It was agreed that this

Section 3 Child Support would be paid into Ethan’s RESP to be used for Ethan’s post secondary educational expenses.

c) In addition, the mother agreed to pay 50% of the following

Section 7 expenses for Ethan: i. Necessary tutoring expense for Ethan; ii. The cost of one extracurricular activity per year for Ethan; iii. The uninsured portion of any medical or dental expenses for Ethan that exceed $100 dollars a month; and iv. School fees for Ethan and any school supplies for Ethan.

d) The parties agreed that that they “shall, whenever possible and especially in those issues which are non-emergent, resolve disputes by mediation or conciliation procedures prior to applying to the Court for relief”. [ 6 ] During 2015, the father has sent numerous emails and letters to the Case Management Counsel, the Associate Chief Justice, the Court and others expressing concerns about the Case Management process and asking for the file to be removed from Case Management. He has also raised issues about previous orders granted and what he claims are outstanding issues relating to the file.

Considerable court resources have been spent, often unnecessarily, in responding to his correspondence. The father has refused or failed to participate in alternate methods suggested by the Court and the Case Management Counsel to resolve his outstanding concerns. [ 7 ] The father’s conduct has also caused difficulties for the mother.

In her Affidavit of October 21, 2015 she states: “Due to all this continued harassment, stress, bothersome, continued daily inappropriate and irrelevant emails the Applicant is putting a huge strain and stress on me and I ask you please to eliminate or limit his future applications for unreasonable and unnecessary allegations”. [ 8 ] In her oral submissions to the Court the mother maintains that the father harasses her constantly with frequent emails and calls. He also forces her to come to court frequently. This is very difficult for her as she has a fulltime job whereas the father does not work.

Application [ 9 ] On October 13 th the father applied for miscellaneous relief. His outstanding requests are for: 1. An Amendment to the Minutes of Settlement concerning Guardianship, Custody and Access to include a police enforcement clause. 2. An Order that the Mother provide additional disclosure to the father. 3. An Order that the mother pay the tutor for an extra day per week for Ethan for a total of twice a week as agreed upon by the mother and her lawyer. 4.

An Order that the mother be ordered to repay $469.98 to the father for the silver necklace and pendant that was in her possession when she went to California. 5. An Order to allow the father to take Ethan to his extra-curricular activities on the weeks that the mother has custody of Ethan. 6. An Order for repayment by the mother for breach of the agreement currently in place for extra legal costs and share of costs for extra-curricular activities in the amount of $489.00 and $420.37. Analysis and Decision [ 10 ] This application is essentially an attempt by the father to ignore or amend the Minutes of Settlement.

I note that, despite agreeing to do so in the Minutes of Settlement and being directed to do so by the Court, the father has refused to participate or obstructed attempts to resolve issues through the case management process or through mediation or conciliation. [ 11 ] It is premature and inappropriate for the Court to get involved in essentially tinkering with the comprehensive terms of the Minutes of Settlement based solely on what appears to be the father’s unhappiness about some of those terms or his concerns about events that occurred preceding the Minutes of Settlement.

[ 12 ] The father suggests there are difficulties in relation to Ethan’s participation in extra-curricular activities. Reviewing the evidence I find that a major problem in this area is the father’s failure or inability to respect the mother’s authority when the child is with her. This causes unnecessary friction. [ 13 ] In

summary, the father’s reluctance to accept the terms of the Minutes of Settlement and his ongoing attempts to reopen old issues is causing unnecessary stress and disruption for the mother and also wasting Court resources.

Consequently, in addition to addressing the merits of the father’s application it is also important to put some measures in place to minimize the contact between these parties and the father’s access to Court process. [ 14 ] Turning to the specifics of the father’s application: Police Enforcement Clause [ 15 ] The father asks that there be a police enforcement clause added to the Minutes of Settlement. The mother is not opposed to a police enforcement clause. The evidence does not support the requirement for the Police Enforcement Clause.

What is required is that the father display some restraint when perceived or actual minor digressions occur in the shared custody order. The application is dismissed. Request for additional disclosure [ 16 ] The father makes a number of unsubstantiated allegations that the mother has hidden or is hiding income and therefore demands additional disclosure. The mother has provided her 2014 tax return. In the Minutes of Settlement it was agreed that there was no retroactive child support owing.

The request for additional disclosure at this time is baseless and essentially undermines the terms of the Minutes of Settlement. The application is dismissed. The Tutor [ 17 ] The father takes the child to a tutor twice a week. The mother takes the child to the tutor once a week. Each parent pays the tutor for the time with the child that occurs in their week. The mother does not believe that the child needs to go twice a week. This causes ongoing friction between the parties. [ 18 ] In a shared parenting arrangement it is important that the authority of the parent who has the child be respected.

Therefore, I am ordering that when the child is with a parent, that parent has the exclusive decision making authority to decide if the child goes to the tutor and to pay the cost of the tutor. [ 19 ] There has also been some concern raised about the child’s attendance at school. I therefore order that each parent is required to send the child to school and to provide medical notes to the school for any absences.

Extracurricular activities [ 20 ] The Applicant makes a number of requests in relation to these extracurricular activities. [ 21 ] Despite the terms of the Minutes of Settlement the extracurricular activities continue to cause ongoing friction between the parties. In an attempt to eliminate or minimize this conflict I make the following order: “Each parent can choose an extra-curricular activity for the child and will be responsible for the registration and payment for that extra- curricular activity.

Each parent will also be responsible for taking the child to the extra-curricular activity that they have registered the child in. During the week that the child is with the one parent, the parent with possession of the child has exclusive authority to decide whether or not the child attends that extra-curricular activity and to take that child to that activity. The other parent shall not be involved.” The silver necklace and pendant [ 22 ] The father claims the child lost a silver necklace and pendant when he was with the mother. He claims judgement in the amount of $469.98.

The mother denies that this occurred and satisfactorily explained the history of this item. [ 23 ] The father has failed to prove this claim and the claim is therefore dismissed. Extra legal costs arising from a dispute over travel document [ 24 ] The father alleges he incurred legal fees as a result of a dispute with the mother over a travel document. The mother explained how they had attended at Service Canada together to get the passport. She paid for the passport. The father has not proven his claim and the claim is dismissed. Annual Review of Child Support Disclosure and Adjustments of

Section 3 and

Section 7 payments [ 25 ] The Divorce Judgment and Corollary Relief Order has the standard clause requiring that each party provide the other party with a complete copy of his or her income tax return and any notices of assessment issued to him or her by the Canada Customs and Revenue Agency on an annual basis on, or before, June 30 th of each year as long as there is a child of the marriage as defined by the Divorce Act of Canada .

In the event that the party has not filed an income tax return for the previous year they shall provide the other party with copies of his or her T4, T4A, and all other relevant tax slips and statements disclosing any and all sources of income including self employment income.

[ 26 ] To minimize the contact and potential conflict between the parties I direct that the parties shall register in and use the recalculation program to recalculate

Section 3 support. The first recalculation will take place after June 30 th ,

Section 7 Expenses [ 27 ] In regard to

Section 7 expenses I find there are no outstanding amounts owing between the parties. [ 28 ] To resolve any future issues concerning

section 7 expenses I direct that the parties are at liberty to attend once a year with Brenda Kaminski, Q.C. Case Management Counsel who is hereby appointed as a referee for the purposes of conducting a reference pursuant to Rule 6.45 of the Alberta Rules of Court regarding

Section 7 expenses claimed by the parties. Ms. Kaminski shall

schedule a date for the reference and set deadlines for the filing of any additional materials. In conducting the reference, Ms. Kaminski may take any of the steps set out in Rule 6.45. In the event that a party fails to attend the reference hearing, Ms. Kaminski is authorized to proceed in the party’s absence. Neither party may apply to

schedule a reference before October 31, 2016. Communication between the parties [ 29 ] To attempt to minimize the ongoing communication difficulties between the parties I previously suggested the parties restrict their communications with each other to email in accordance with the rules set out below. I now order that these rules be used on an ongoing basis: “All communication between the parties shall be by email with the following conditions:

a) A maximum of one email per day from either party;

b) There is a maximum of one issue per email;

c) There is a maximum of 40 words per email;

d) The recipient of the email must respond within 24 hours but shall not respond within 3 hours;

e) Only topics pertaining directly to Ethan shall be addressed;

f) The emails shall be future-focused and polite;

g) In emergency situations that immediately affect Ethan and cannot wait, the 3-hour and one email per day rules do not apply; and

h) In extreme medical emergencies for Ethan, telephone contact will occur as soon as possible.

If the party making the telephone call cannot reach the other party by telephone, that party will leave a message and will also send an email or text message to the other party.” Restrictions on Future Court Applications [ 30 ] In order to allow a reasonable time for the Minutes of Settlement to be implemented and to both reduce the conflict between the parties and the demands on our limited Court resources, I order the following: “Unless leave is provided by the Case Management Judge neither party may bring any further application to the Court of Queen’s Bench concerning this matter before October 31 st , 2017 except for the limited purposes that are set out in Rules 6.46 in respect to the referee’s report to be prepared by Ms.

Kaminski. Leave can be sought by way of an unfiled application with a supporting affidavit not served on the other party who shall only be notified in the event that leave is granted. The materials filed in support of a leave application shall meet the formal requirements of Practice Note 2.” Communication with the Court [ 31 ] The parties are prohibited from sending emails or letters to the Case Management Judge, Case Management Counsel and Court staff. Any request to the Court of Queen’s Bench concerning family law issues is to be made by way of a leave application following the process set out in paragraph 30.

Summary [ 32 ] The father’s application is dismissed with costs of $250.00 to be paid by the father to the mother within 90 days of the date of this order. [ 33 ] The Court will prepare an Order incorporating the terms of this decision. Heard on the 9 th day of November, 2015. Dated at the City of Edmonton, Alberta this 2 nd day of December, 2015.

J.J. Gill J.C.Q.B.A. Appearances: Manuel Viriato Medeiros Januario Self Represented Nancy Raposo Januario Self Represented