Hoffe v Hoffe, 2016 ABQB 101

Court of Queen ’ s Bench of Alberta Citation: Hoffe v Hoffe, 2016 ABQB 101 Date: 20160218 Docket: 4803 164407 Registry: Edmonton Between: Craig Lester Hoffe Plaintiff - and - Danielle Marie Hoffe Defendant _______________________________________________________ Endorsement of the Honourable Madam Justice J.B. Veit _______________________________________________________ [ 1 ] Invoking material changes of circumstance since the court last dealt with parenting issues in August, 2014, Mr. Hoffe applies to vary the current shared parenting regime to one of primary residence in his favour.

In particular, the father raises: the mother’s continued inability to protect their daughter from inappropriate disciplinary practices and bullying; the mother’s continued instability of residence; the parents’ continued inability to communicate effectively; changes in the mother’s family structure, in particular the departure of the mother’s oldest child to live with her maternal grandmother; the continuation of the mother’s sexual lifestyle; the continual disparagement in the mother’s household of the father’s household; and, the continued failure of the mother and her partner to address the concerns raised in the PN #8 assessment. [ 2 ] Mr.

Hoffe’s application is denied.

[ 3 ] On the issue of physical discipline and bullying, Mr. Hoffe reports the following complaints from his daughter: in February, 2015, one reported spanking by the mother, one spanking by her oldest step-sibling A. – who left the mother’s home in March 2015- and one physical assault by A. In March, 2015, there is one reported hitting and biting incident by the daughter’s younger step-sibling. In April, 2015, there is one reported spanking by the mother’s partner for “sneaking food”. In July, 2015, there is one reported spanking by the mother.

In August 2015, there is one reported biting of the daughter’s fingers and arms by the mother’s partner, which biting leaves teeth marks. In October, 2015, there is one reported pinning of the daughter’s arms behind her back by the mother’s partner. The child in question has been characterized as very sensitive. The most serious physical problems appear to have been caused in confrontations with the child’s oldest step-sister: the report in late February mentions bruising to the child’s arms. However, the step-sibling in question has now left the mother’s residence.

Indeed, as is discussed below, it is the cessation of weekly communal living with this step-sister which has apparently caused the applicant’s daughter the greatest “loss” since the last parenting order. The applicant has been able to deal with this loss by cooperating with the step-sister’s maternal grandmother to ensure that his daughter and her step-sister have as much time as is reasonable together. Interestingly, the biting and pinning of arms reported by the applicant’s daughter is reported by her in almost the same language as the same step-sister also reports about the mother’s partner.

It’s not impossible, of course, that the mother’s partner disciplines all children in the same way; nonetheless, it is unusual for different children to be reporting that discipline almost word for word. Although one of those events apparently occurred in August when the child in question was presumably not at school, it is also unusual, given the past history of school involvement, that the school has not passed along comments about teeth marks and sore arms.

In the result, although the father reports new incidents of physical discipline since August 2014, in reviewing all of the evidence available on this application, I have concluded that, taken together and even in the light of the child’s sensitive nature, the incidents are not an important, i.e. material, change of circumstance since the last court order. [ 4 ] The effect of the mother’s instability of residence was the subject of comment in the bilateral assessment.

Although there has been at least one, and possibly another, change of residence by the mother since the date of the assessment, the changes have not materially changed the life circumstances of the child who continues to have continuity at school, for example, which is an important anchor in her life.

In reviewing the evidence relating to the mother’s change of residence, I have concluded that the father has not demonstrated a material change of circumstance relating to that issue since the last court order. [ 5 ] It’s true that the parents continue to communicate ineffectively; however, there is no material change in this feature of their relationship since the last court order. [ 6 ] The applicant characterizes as the “largest” change of circumstance the change brought about by the mother’s eldest daughter’s decision to leave her mother’s home to live with her maternal grandmother and the grandmother’s husband.

This child is the one discussed above, i.e. the step-sister of the applicant’s daughter, who is reported by the applicant’s daughter as assaulting and disciplining her. That step-sister’s decision to leave her mother’s household is not a material change of circumstance going to the issue of shared parenting; the main reason for implementing the shared parenting regime was not the presence in the mother’s household of that step-sister but, rather, the presence and influence of the mother herself and of other step-siblings who continue to live in the mother’s residence.

Moreover, as discussed above, the applicant father has found a way to continue his daughter’s relationship with her oldest step-sister. Finally, terminating the shared parenting regime would not revive Mr. Hoffe’s daughter’s relationship with her step-sister in the same way as it was. [ 7 ] The father objects to what he describes as the mother’s high risk sexual lifestyle. The mother swears that his allegations are untrue; she also complains that these allegations have been made at every opportunity and that nothing has changed over the course of time either with respect to his allegations or to her denials.

If the mother’s position could be substantiated, that might have an effect on costs: an abuse of process by continually re-litigating decided issues could result in an award of accelerated costs.

While I can understand the mother’s impression about the ongoing nature of the father’s allegations because this dispute has been before the courts on a great many occasions, and the father has been unrepresented on most, if not all of those occasions, so that there could have been some references by him to issues that are not identified in the pleadings, I could not find an earlier reference to the father’s claims of unwholesome life in the mother’s home in any of the father’s earlier applications in the Q.B. proceedings.

So far as I am aware, the Provincial Court judge who made a substantive parenting order did not issue a written decision. There are only two substantive parenting decisions in this court, one of which enforced the Provincial Court decision and the other which applied the bilateral assessment. The only reference I could find in the bilateral assessment to sexual practices was in the assessor’s comments about a friend of the child’s mother who made complaints about the father’s sexual practices.

That individual told the assessor: “she cannot stand what [the father] and his girlfriend put in the Facebook . . . sexual stuff . . and they ‘got quite into it’, so she deleted them from her Facebook account: ‘Nobody should put anything like that. You don’t put anything inappropriate’.”. Given these references in the bilateral assessment report, I can only assume that the issue of adult consensual sexual behaviour was at least in the mind of the assessor as she prepared her report.

None of her recommendations deal with the sexual behaviour of the adults in this proceeding; I can only assume that, after her in-depth assessment of all of the individuals involved in this proceeding, the assessor did not identify any concerns about sexual behaviour in relation to the parenting role.

Even assuming that the evidence on which the father relies on this application is reliable, that evidence does not constitute a material change of circumstance from the bilateral assessment and its related order. [ 8 ] The father objects to continued disparagement of himself and his household by the mother’s household; this was an issue that was reviewed in depth in the bilateral assessment. There is no material change of circumstance on this issue. [ 9 ] Finally, the father states that there has been no effort by the respondent and her partner to address concerns raised in the bilateral assessment.

It’s true, of course, that it would be better for all concerned, including for example, the father’s current partner and the mother’s current partner, if the concerns raised by the assessor were addressed by them. However, as the bilateral assessment notes, the benefits to a child of a shared parenting arrangement can be important even where the important individuals in the child’s life are not themselves doing everything they could to improve their child/step-child’s chance at success in life.

The failure of the adults to take measures to make themselves more aware of the stress they are causing this child is not, unfortunately, a material change of circumstance. [ 10 ] Ms. Hoffe brought a counter-application in relation to child support; those issues were resolved by consent at the hearing. [ 11 ] The mother has been successful on the parenting issue. She also proposed a resolution to the claim for retroactive child

support which took into account the father’s arguments relative to the consensual arrangement he had made with the respondent in relation to child support and matrimonial debt. Therefore, the mother has been substantially successful on this application, and is therefore entitled to costs. Heard on the 11 th day of February, 2016. Dated at the City of Edmonton, Alberta this 17 th day of February, 2016. J.B. Veit J.C.Q.B.A. Appearances: Craig Hoffe on his own behalf Amanda Baretta, on behalf of Ms. Hoffe