Busch v Busch, 2016 ABQB 184

Court of Queen ’ s Bench of Alberta Citation: Busch v Busch, 2016 ABQB 184 Date: 20160329 Docket: 4803 167833 Registry: Edmonton Between: Rachelle Marie Busch Plaintiff - and - Markus Roland Busch Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Sterling M. Sanderman _______________________________________________________ [ 1 ] The parties married on February 10, 2007. They separated in January of 2013.

Their co-habitation produced a daughter in 2009 who celebrated her seventh birthday in October. [ 2 ] Following their separation, the parties agreed, without the aid of lawyers, to a division of the matrimonial property and a parenting plan in relation to their daughter. Ms. Busch did not file a Statement of Claim for Divorce until April of 2014. Once again, without the aid of counsel, the parties attempted to complete a desk divorce. It was rejected by the Divorce clerk. Although this marriage is over, the parties await its formal ending. [ 3 ] Ms.

Busch always maintained the responsibility of providing the primary care for their daughter. Mr. Busch had generous and reasonable parenting time which was defined to a great extent by his work schedule.

[ 4 ] In 2015, the previous harmonious dealings between the parties disappeared. Mr. Busch, in a new relationship, wanted a shared parenting arrangement which was opposed by Ms. Busch. Ms. Busch was concerned that Mr. Busch would not be spending the appropriate time with his daughter but would transfer his parenting responsibilities to his new partner. On October 7, 2015, a Special Chambers hearing dealt with Mr. Busch’s request for shared parenting in addition to a number of financial matters. [ 5 ] Prior to the Special Chambers hearing, Justice Browne heard an application for summer access on June 22, 2015.

This was in morning chambers. Because of a lack of hard information in relation to Mr. Busch’s work schedule, Justice Browne was unable to set specific times for his access during the summer months. Philosophically, she agreed with his proposition that he have his daughter for half the summer but she was unwilling to order this unless he was prepared to take time off from work to care for her. Justice Browne did not order costs in relation to this application. [ 6 ] Prior to the court appearances in June of 2015 and October of 2015, it appears as if the parties were working co-operatively with one another.

It appears as if they were making decisions that were truly in the best interests of their daughter. Courts like to see this type of co-operation because the individuals who know the needs of the child better than anyone are concerned, loving parents. Ms. Busch’s opposition to a shared parenting arrangement is understandable having regard to Mr. Busch’s reluctance to provide the day-to- day care for their daughter when she is with him.

This was the major point of contention between the parties when they appeared in October of 2015. [ 7 ] All other issues that the parties raised were dealt with by a consent order that was agreed to that day. Ms. Busch remained opposed to the shared parenting sought by Mr. Busch because of his reluctance to commit to full-time parenting when their daughter was in his care. When this matter was argued in October of 2015, Ms. Busch pointed to the fact that Mr. Busch had not had any dealings with his daughter since June of 2015. She expected him to play an important role in the life of his child.

She was concerned that he was not taking his responsibilities seriously. [ 8 ] Up until October of 2015, Ms. Busch sought compromise with Mr. Busch. She wanted to avoid coming to court. Prior to the October appearance, she had counsel forward a Calderbank offer to Mr. Busch outlining what she thought was a fair resolution. She was not rigid in her proposal. In it, she invited Mr. Busch to consider it and make a counter proposal if this was his inclination. His response was not conducive to any meaningful negotiation. He told Ms.

Busch that he believed that Calderbank offers had no role to play in family litigation. [ 9 ] As counsel resolved all of the other contentious issues by a consent order, the afternoon of October 7, 2015 was spent attempting to convince the Busches to look at solutions to the parenting dispute that would truly consider their daughter’s bests interests. Loving, intelligent parents who act selflessly are in a much better position than any court to recognize and address the needs of their children.

Those who truly care about their children will always act in their best interests even if it is painful and inconvenient for them. It appeared as if some progress was being made in this regard. [ 10 ] Consequently, I asked the parties to look at certain solutions to their dispute. I asked them to provide me with brief written proposals in relation to what they thought was in the best interests of their daughter. If they could not agree, I told them that I would be quite prepared to make the decision. [ 11 ] The parties could not agree. They provided me with their written proposals. Ms.

Busch was successful in her desire to prevent a shared-parenting arrangement. In a written decision issued on December 1, 2015, I gave Mr. Busch the opportunity to prove that he was capable of accepting the full responsibility of shared parenting. I was concerned that his actions over the previous five months were indicative of his real attitude. He dropped out of his daughter’s life for that period. This is not the action of an individual committed to properly parenting a child. [ 12 ] In my written decision, I indicated that no costs were to be awarded in this application.

By doing so, I embarked upon a course of action that was unfair to Ms. Busch. I pre-empted her opportunity to ask for them. She clearly indicated to Mr. Busch in her Calderbank offer that she would be asking for enhanced costs if warranted. [ 13 ] Although my decision was released on December 1, 2015, no order was signed in relation to the parenting decision or to the order that had been consented to on October 7, 2015. Mr. Busch took issue with the wording of the orders prepared by Ms. Busch. These orders were not signed until March 18, 2015, when Ms. Busch asked to address the matter of costs.

The signed orders could not have been entered until later that day. Ms. Busch had applied to the court to speak to costs based upon her success in the October application and Mr. Busch’s behaviour in preventing her from taking advantage of the consent order in relation to child support. [ 14 ] Ms. Busch points to two factors that demand a cost award in her favour. She points to Mr. Busch’s lack of co-operation in the last six months and his insistence that she go to court in order to ensure that the best interests of their daughter are protected.

She further points to his behaviour in making it difficult for her to take the benefit of an order that he consented to in October of 2015 because of his technical objections to the form of the order. [ 15 ] This case is a perfect example of how an uncooperative individual can frustrate the orderly progression of litigation when a party is forced to come to court in order to advance their cause. Family litigation often proceeds piece meal. Litigants are forced to obtain basic information from the opposing side.

Even those who want to compromise in a fair fashion are prevented from doing so if the opposite party adopts a pattern of intransigent behaviour. Every reasonable request can be rejected. Information the opposite party is entitled to can be refused. The form of orders that are properly granted by the court can be quibbled with. One who chooses to can easily frustrate the process and the desire of a reasonable litigant to settle on terms that are fair and do consider the best interests of the children of the marriage.

The overriding concern of any court when it comes to family litigation is what is in the best interests of the children. Courts have an expectation that litigants recognize this predominant consideration and will behave reasonably and professionally in an effort to assist the court in making decisions that recognize this fundamental principle. [ 16 ] Ms. Busch meets the legal test of having been substantially successful in order to claim a costs award. The cost rules clearly apply to access and custody fights. There are no special rules for family matters.

[ 17 ] Mr. Busch argues that the matter of costs cannot be raised at this time as I dealt with them in my decision of December 1, 2015. He raises the legal concept of res judicata . I disagree with this contention as there was no exploration and determination of the competing arguments by me in making that decision. I acted intemperately in not giving Ms. Busch the opportunity to ask for costs upon hearing that application. [ 18 ] A further argument might be raised by Mr. Busch. He might claim that I am functus in relation to this matter. I take issue with that suggestion as Ms.

Busch brought her application in order to seek costs before any order was signed and entered. [ 19 ] Courts have an obligation to control their process. This is especially so when children are the focal point of any inquiry. Behaviour that is designed merely to frustrate, annoy or antagonize an opposing party will not be tolerated. Such behaviour must be corrected through the awarding of costs. In this case, Ms. Busch shall have costs in the amount of $2,500.00. Heard on the 18 th day of March, 2016. Dated at the City of Edmonton, Alberta this 29th day of March, 2016. Sterling M. Sanderman J.C.Q.B.A.

Appearances: Greg R. Wool, Sharek & Co. for the Plaintiff, Ms. Busch Brook S. Mishna, Mishna Briere & Oehm LLP for the Defendant, Mr. Busch