Babich v Babich, 2016 ABQB 252

Court of Queen ’ s Bench of Alberta Citation: Babich v Babich, 2016 ABQB 252 Date: 20160503 Docket: FL03 18056 Registry: Edmonton Between: Jodi Dawn Babich Applicant - and - Paul Andrew Babich Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Sterling M. Sanderman _______________________________________________________ [ 1 ] This matter has been under case management since December of 2009. The managing of the litigation and control of the actions of the litigants has been far from a resounding success.

When one considers the time, effort and energy dedicated to it, one comes to the conclusion that it has been an abysmal failure. [ 2 ] Under the case management format, Ms. Babich brings an application to have a shared parenting arrangement that has been in existence in the past ordered by the Court. [ 3 ] Over the years, both parties have brought numerous applications. Some have been necessary in order to protect the children of the marriage. Others have been brought in order to antagonize an ex-spouse.

In the past, I have issued written decisions setting out my displeasure with the manner in which the parties have conducted themselves and how their actions have had a detrimental effect upon

their sons and how it has made it difficult to craft obvious solutions to pressing problems. The comments I made in a decision dated August 22, 2014, bear repeating as they have currency at the present time. In that decision I stated at paragraphs 2, 3 and 5 the following: [2] This matter has been under case management since December of 2009. Many court applications have been made to deal with a variety of matters. To say that this is a dysfunctional family would be a gross understatement. At times, it appears as if the parties have used the ongoing litigation to lash out and attempt to hurt one another.

Their efforts to harm one another have had an unfortunate effect upon their sons. These innocents have not deserved this treatment. What makes the harm done to the children inexcusable is that it is obvious that both parents love their sons dearly. It is tragic that the parents cannot put their mutual animosity aside when it comes to making decisions that affect the lives of their sons. [3] Intentionally or inadvertently, both parents have involved a number of community agencies in their dispute. They have reported one another to the local RCMP detachment and to the Director of Family Services.

Many appearances have been made at different levels of court in an attempt to bring some semblance of order to this family. Various community agencies dedicated to assisting families in crisis have been employed. Considerable time, effort and energy has been expended by many in order to bring some sense of harmony to this family. Some progress has been made, but the underlying conflict remains.

Although both parties profess an undying love for their sons and a commitment to make their lives better, their actions belie their noble pronouncements. [5] The court has made a fundamental mistake during this period of case management. It has trusted the parents to act responsibly and to have the best interests of their children uppermost in their minds. Unfortunately, both have failed to do so. Whenever an order has been granted that gives one parent an advantage in their dispute, they embrace it and maximize the benefit without regard to the harm done to the children.

Both parents have abused power given to them on occasion in order to lash out at their ex-spouse. [ 4 ] A statement made in a decision rendered August 6, 2015 is also applicable today. At paragraph 10, I stated: [10] This has been a most difficult file to case manage because the parties cannot recognize the obvious solutions that are available to them and they continue to ignore what is in the best interests of their sons. Their sons want nothing more than to have harmony between their parents so that they can live as normal a life as possible.

Instead, they have been exposed to continuous conflict between their parents and the constant intervention of outside agencies that create a most unhappy environment for the boys. This is most unfortunate as each parent loves the boys dearly. The boys want to spend time with both parents.

It is in their best interests that they have fulsome meaningful relationships with their mother and father. [ 5 ] It is truly unfortunate that personal animosity continues to permeate the relationship between the parents for on occasion they have been able to resolve outstanding issues in a fashion that benefits their sons and lessens the hostility that exists between them. In April of 2011, after a four-day hearing, the parties agreed to a consent order. That put in place a shared parenting arrangement. This arrangement continued and was working well up until March of 2013.

At that time, the parties settled most of the outstanding issues between them and reconfirmed the parenting arrangement that began two years before. It appeared as if a pattern of regularity had been established that would govern the relationship between the parties and where their sons would live for the foreseeable future. The parties agreed to shared parenting, embraced it and were making it work. Both parents decided that this type of parenting arrangement was in the best interests of their sons. [ 6 ] Unfortunately, this harmonious understanding came crashing to the ground because of the selfishness of Ms.

Babich. She placed her personal interests before those of her sons. She maintained a relationship with a man that placed her wellbeing and that of her sons in danger. Her actions caused the Director of Child and Family Services for the Province of Alberta to become involved. Apprehension of the children was contemplated. Mr. Babich was quite willing to take the responsibility for providing the day-to-day care of his sons. He has been the primary caregiver since December of 2013. He has shouldered this load willingly. He has done so even though Ms.

Babich has paid no child support for that period because of her inability to work fulltime. He is to be commended for his efforts. [ 7 ] Since December of 2013, Ms. Babich has requested that the shared parenting arrangement be reinstituted. Her efforts in this regard have not been successful as she has been unable to show that she is prepared to put the interests of her children before her own. [ 8 ] Things have changed for her. She appears to be in a stable relationship and is engaged to marry an individual who has a good relationship with her children.

She has been co-habiting with this man since the fall of 2014. He has a four-bedroom home and one room has been allocated to each of her sons. With this stable partner, she submits that the shared parenting arrangement, agreed to in the past, would be in the best interests of her sons. [ 9 ] Mr. Babich opposes her application. He has successfully opposed such an application in the past on the basis that little was known about her new partner and that having regard to her past relationships with other men, it would be risky to order a change in the primary home of the boys.

On this application, he shifted his approach to a lack of engagement by Ms. Babich in her sons’ lives. It appears as if he is prepared to oppose her application on the basis of any ground that he finds arguable. [ 10 ] This is the type of attitude that has made this a difficult matter. The litigants are essentially scorekeepers. Rather than accepting their need to co-operate in order to establish an environment in which their sons can flourish, they strive to get the advantage over one another. In this fashion, they have been irresponsible litigants.

They quickly come to court if there is the possibility that they can get the upper hand or impose their will on one another. At times this litigation has been driven by the need to get even or ahead rather than asking for something that will improve the lot of the children. [ 11 ] Both parties have acted irresponsibly. Each has felt such a compelling need to win that they have taken active steps to mislead the court and sabotage any effort to bring a sense of order to their children’s lives. Early on in the litigation, Ms. Babich encouraged a child who is no longer a child of the marriage to disobey court orders.

She counselled him to do so. This was a strategy that she pursued. During the course of the litigation, she has lied to the court, the RCMP and the Director of Child and Family Services in relation to her involvement with an unsavory individual who was a threat to her sons’ development and her own wellbeing. To this day, she adopts an aggressive tone with her ex-husband in the language she uses in communications with him. Her foul bar-room tongue is far from conciliatory and cannot lead to polite reasoned communications.

[ 12 ] Mr. Babich’s conduct has been no better. He misleads the Court when it is convenient for him to do so. In his most recent affidavit, he concedes that his relationship with a former intimate was over in August of 2013 although they lived in the same residence until June of 2014. A review of an affidavit she filed on his behalf in March of 2015 attempts to persuade the Court of something entirely different. This affidavit filed more than 18 months after the relationship was over claims that she is the common-law partner of Mr. Babich and she stands in loco parentis to the children.

The claims made are entirely inconsistent. I assume the affidavit sworn in March of 2015 by the former partner is false. It was filed in order to create a false belief in the mind of the court. [ 13 ] Mr. Babich is as contemptuous of the court process as Ms. Babich. In August of 2014, he took the same approach that Ms. Babich did at an earlier date in the need to follow court orders.

In a letter to the court, he indicated the following: Please take note, that having exercised due diligence far beyond extreme credulity, from here on, I will decide if and when the children will be going to their mothers based on my real time evaluation of her ability or intent to care for or protect them. . . . Please be advised, starting September 1, the children will not be having any more overnight visits with their mother, until such time as I can assess whether it would be safe for them to do so. [ 14 ] Mr. Babich has shown his contempt in other ways.

He has written to the Associate Chief Justice demanding that a new case manager be appointed. In a text message, to a son, in a time of conflict between the parties, he threatened to kill the case manager. [ 15 ] With such hostility being shown to due process by the litigants, it is not surprising that the case management of this matter has been far from successful. This has been a frustrating process as obvious solutions are sabotaged by the litigants in order to satisfy their personal needs. [ 16 ] The shared parenting arrangement has always been the preferred approach in this case. The parties recognized this.

They made this arrangement work for over 2 ½ years. Only the selfishness of Ms. Babich and her inability to admit her failings prevented any serious consideration of putting it in place again. [ 17 ] In August of 2015, I dismissed a similar application on the basis that she had not convinced me that her relationship with her new partner was stable enough to consider re-introducing the previous arrangement.

I told her she could not make a similar application for a period of eight months. [ 18 ] The evidence that she has provided on this application satisfies me that it is time to move to a shared parenting arrangement again. This arrangement will not begin until Sunday, July 17, 2016 at 7:00 pm. At that time, Mr. Babich will deliver the children of the marriage to Ms. Babich at her residence in Leduc, Alberta. They will remain with her until Sunday, July 24, 2016 at 7:00 pm. At that time, Ms. Babich will deliver them to Mr. Babich’s residence.

The parties will follow this weekly Sunday exchange until further court order. The parties are at liberty to change the time and place of the exchange if it is mutually agreeable to them. [ 19 ] This regime will not begin until July 17, 2016 to allow the parties time to make the necessary arrangements for the shared parenting regime and to allow Mr. Babich to take his sons on a holiday from July 1 to July 17 of this year. [ 20 ] Ms. Babich will have two consecutive weeks with the boys in August of this year. The selection of her two weeks will be revealed to Mr.

Babich by June 1, 2016, so he can make the necessary arrangements to have the boys available at that time. [ 21 ] No costs are ordered in relation to this matter. Heard on the 26 th day of April, 2016. Dated at the City of Edmonton, Alberta this 3 rd day of May, 2016. Sterling M. Sanderman J.C.Q.B.A. Appearances: Katie Noel, Katie Noel Professional Corporation for Ms. Babich

Claire Klassen, Emery Jamieson LLP for Mr. Babich