Lukan v Kohlenberg, 2016 ABQB 392

Court of Queen ’ s Bench of Alberta Citation: Lukan v Kohlenberg, 2016 ABQB 392 Date: 20160711 Docket: 4803 153865 Registry: Edmonton Between: Leslie Michelle Lukan (formerly known as Kohlenberg) Plaintiff - and - Cory Dean Kohlenberg Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] As trial relief, the divorced mother of two children, an 8 year old and a 5 year old, asks the court to order: ongoing and retroactive child support for a shared parenting regime from 2010 onwards based on a simple set-off; the father to pay his proportionate share of the approximately $850.00 yearly bussing charge for the children; school fees to be paid by one parent in alternate years; a change in format of the shared parenting regime from a 5:5 2:2 regime to a week on/week off regime; the father to sign the children’s passport applications and to allow the mother to use the passports without the father’s travel consent; divide the parties’ pensions; and, payment by the defendant of outstanding previous costs awards. [ 2 ] The father opposes the mother’s requests.

He states that: the current shared parenting regime works well; he is willing to pay

any calculated retroactive s. 3 child support on the basis of $500.00 a month; bussing expenses are not proper s. 7 expenses because the mother’s partner is retired and could presumably drive the children to school; he will sign the passport applications if he has a future say in when and where the children are to be taken by the mother; and, he agrees that the only property issue between the parties is the division of the pensions.

Overall, the father states that a trial was not necessary. [ 3 ] Without bringing a formal cross application, the father asks the court to order that the children should attend a different school than the school they are currently attending. [ 4 ] The mother’s applications are granted. The main issue in dispute is the proposed change in the shared parenting regime. When the children were younger, the existing parenting regime was undoubtedly useful because it provided to each parent a relatively short gap in parenting time, as is appropriate for young children.

Now that both children are school age, a week on/week off regime is less disruptive for the children and better suited to what has turned out to be a parallel parenting regime. [ 5 ] Also, in light of the difficulties which the parents have communicating effectively on parenting issues, the week on/week off regime will continue to apply throughout the year, except for Christmas and summer holidays. Christmas holidays will continue to be shared as they have been.

During the summer, each parent is entitled to one additional two week period immediately following upon their one week rotation. [ 6 ] Communications between the parties shall be by Family Wizard. [ 7 ] In the circumstances here, the bussing charge is an appropriate s. 7 expense: given its size, the charge is extraordinary and it is both necessary for the children given the school’s distance from the mother’s residence, and reasonable in light of the parents’ income and the children’s social development. This expense will be shared between the parents proportionately according to their incomes.

School fees are not a s. 7 expense, not being extraordinary; however, given the shared parenting regime, the parents will pay school fees in alternate years, commencing with the mother in the 2016-17 school year. [ 8 ] The parties shall prepare a calculation of outstanding child support as of July 31, 2016. Whichever parent owes the other support will pay that amount at the rate of $500.00 per month until the debt has been paid.

Beginning August 1, 2016, the parent owing the simple set-off, here presumably the mother, will begin paying that amount to the other parent. [ 9 ] The father will pay the outstanding costs awards, totalling $1,150.00, on August 1, 2016. [ 10 ] The mother is entitled to obtain passports for the children without the father’s consent; both the mother and the father are entitled to take the children on trips outside Canada without the other’s consent; the mother will hold the children’s passports but will provide them to the father within 14 days of a written request from the father to which travel plans are appended. [ 11 ] The children will remain enrolled at Lakeland Ridge school until further order of the court or until they agree on a different school. 1.

Background [ 12 ] The parties married in 2004, separated in 2010 and were divorced in August 2015. They are the parents of two children, now 8 and 5; the only special need of the children is that one of them is allergic to peanuts and requires continual access to an EPI pen. The father is a teacher; the mother is a locomotive engineer. [ 13 ] The parents are in a high conflict situation: at one point, the father would not allow the mother to see one of the very young children for a period of 40 days. At one time, the father thought that one of the children may not be his.

Nonetheless, he wanted to be in the delivery room for the birth of that child, or to have someone else represent him in the room, and take pictures of the birth. Although the father originally agreed, on certain conditions, to have the younger child baptized as a Roman Catholic, he then withdrew that agreement. Until two weeks before trial, the father would not allow anyone but the mother to pick up the children on a parenting exchange.

As a result, so far in 2016, the mother has been denied 15 days of parenting time by the father. [ 14 ] The parents also have very different parenting styles: the father allows his daughter to paint his fingernails different pastel colours on each nail and to style his hair, which he has allowed to grow to a shaggy length to facilitate that styling.

The mother expects the children to try any food prepared as part of a meal for them. [ 15 ] In the result, although each parent loves their children and does what they can to nurture their children’s abilities, expand their horizons and allow them to become healthy adults, the parents are unable to work with one another on common strategies for achieving those aims. So long as these differences can be managed with civility, their children will benefit from exposure to two different ways in which parenting can serve the overall objective of nurturing a child’s best interests. 2.

The parenting regime is changed to a week on/week off regime [ 16 ] The current 5:5 2:2 regime has been in place since 2010. That arrangement was made when each parent was represented; that regime was undoubtedly chosen because the children were very young and they would be without one parent for no longer than 5 days. [ 17 ] However, now that the children are both in school, a week on/week off parenting regime is less disruptive for the children in that, the school week is uninterrupted by a change of residence and by a change of parenting styles.

For example, the mother and the father have markedly different standards with respect to what they consider to be appropriate clothing for their daughter; with a week on/week off schedule, it will be easier for the daughter to know that, when she is with her mother, her school clothes are of this type, etc.

Moreover, since the parents have been unable to collaborate in parenting with the result that they have established a parallel shared parenting regime, a week on/week off regime will better accord with the father’s practice of involving the children in extra-curricular activities which encroach upon the mother’s parenting time: when the children are with their father, he will take them to the activities in which he has enrolled them and when they are living with their mother, she will take them to whatever activities she proposes. Therefore,

when the children are with the father, he can take them to soccer games and practices during his week but he should not expect that the mother will take the children to soccer games and practices during her week. [ 18 ] Given the father’s interest in having his children participate in soccer, it may be useful to have the exchange of children on Monday morning, at school, or in the school parking lot at 9:00 a.m. when the children are not in school rather than on Fridays.

So far as soccer is concerned, for example, that would allow the children to have a practice and a game in one week; if the exchanges are made on Fridays, the children may practice but may not play in a game. Also, exchanges on Monday morning at school would minimize the potential for negative exchanges between the parents. In any event, however, if the parents prefer the exchanges to continue as before, that is clearly up to them. [ 19 ] I observe that the father has, unwisely, had one of the children try out for club soccer. Club soccer takes a lot of time and, therefore, commitment from both parents.

That level of common commitment is not present in relation to this child. Not only would club soccer require more time during the week, it would also require more time during the summer. It is not appropriate for the father to make arrangements for extracurricular activities which impinge on the mother’s parenting time.

The evidence at this trial is that the mother does not make similar commitments for the children in relation to the father’s parenting time. [ 20 ] The mother’s suggestion that the children be enrolled in community soccer in Sherwood Park, which is closer to her residence, is inappropriate: the children have been playing with their age cohort in the father’s community for several years. They have doubtless made friends and contacts there and those relationships should continue if possible.

Moreover, their father coaches them in their current teams and he might not be able to be their coach if they moved to Sherwood Park. In any event, the mother is not particularly supportive of soccer as an extra-curricular activity, so her wishes in relation to this issue are not particularly weighty. [ 21 ] By way of follow-up to the last point, each of the parents can organize extracurricular activities for the children for the time they are parenting the children.

For example, the father can enroll the children in ball hockey, in addition to soccer, but he must accept that the mother will have no obligation to bring the children to soccer and ball hockey during her weeks. The mother can enroll the children in cubs and brownies and in swimming; she should not expect the father to take the children to those activities. Each parent will not “blame” the other, in front of the children, for any inability or unwillingness to participate in activities which the other has chosen. Each parent will provide to the other a

schedule of activities in which the children are enrolled with particular attention to important events linked to those activities. [ 22 ] Because of the inability of these parents to cooperate in the parenting of their children, it is important to minimize the occasions on which stress may be experienced by the parents and by the children relative to parenting exchanges. Therefore, the only deviations from the week on/week off parenting arrangement will be the Christmas holidays and the summer holidays.

For additional certainty, no exceptions to the week on/week off regime will be made for Easter and Thanksgiving, or for Mother’s Day or Father’s Day or the children’s birthdays, or for “long” weekends. Similarly, there will be no adjustment with respect to the last weekend in October’s football game in Saskatchewan; this is not because of the expected temperature for the game. Rather, this is because the level of animosity between the parents just makes it too difficult to adjust the parenting schedule.

Making an exception for this one game would only lead to the possibility that the mother would ask for a special dispensation in relation to some event that she considers important for the children. [ 23 ] In January 2013, the parties obviously thought that it might be useful to use the services of a parenting coach; it would still be in the children's best interests, of course, if the parents could maximize the opportunities for development made available to their children while minimizing the stress on the children, by choosing extracurricular activities together.

Realistically, however, given the experience of the past nearly 6 years, that is highly unlikely to happen. In the result, the children are likely to be exposed to different activities by each of their parents; this is not a bad thing, and could be an enriching thing, if the parents are able to manage these differences having the children’s best interests in mind.

In any event, by the time the children reach their teenage years, they will be in a position to choose to continue some or all or none of the activities the parents have chosen for them. [ 24 ] As to summer holidays, the historical arrangement between the parents was to the effect that they would provide information to one another by May 1 of each year of the two weeks during which they intended to take holiday time with the children.

That arrangement will continue, with the following adjustment: each parent will take their two week “holiday” time immediately following their one week rotation time, thereby giving each parent a three week summer access period. [ 25 ] In order to minimize stress, and also to have a record of exchanges between the parents, all communications between the parents will be made with the use of Family Wizard. [ 26 ] Finally, it is important to emphasize that the father must not fail to exchange the children merely because the mother is not there to receive them: the mother is entitled to send a nanny, or a babysitter, or her partner, to receive the children.

Any repetition of the father’s failure to turn the children over will not lead to a make-up period for the mother, but will lead to a re-assessment of whether a shared parenting regime can continue if the father is not supporting that regime. 3.

Bussing is an extraordinary school expense which should be treated as a s. 7 expense and shared proportionately between the parties according to their incomes; school fees are not a s. 7 expense, but because of the potential vagaries of timing, each parent will pay the school fees for the children in alternate years; the children’s day care expenses, which could be a s. 7 expense, will continue to be paid according to the parties’ established practice

a) Bussing [ 27 ] Because the children are attending a school which is out of boundary from each of the parents’ residences, the mother has been incurring a bussing expense which will be approximately $850.00 for the 2016-17 school year. A discount was available if the fee was paid by the end of June, 2016, but the father has declined to pay his share.

[ 28 ] The size and nature of the bussing fee makes it an extraordinary school expense. If the children were attending a school which was within the residential school boundary of either of the parents, no fee of this magnitude would be imposed. [ 29 ] The issue is, then, whether this extraordinary expense qualifies as a s. 7 expense because it is necessary in the children’s best interests and reasonable in light of the means of the parents. [ 30 ] I have concluded that it is a necessary and reasonable expense. [ 31 ] It is obviously necessary for the children to get to school.

The mother’s employment means that she is not always able to take the children to school. The mother’s partner is retired; he may be able to take the children to school. In any event, however, given that the children have been taking the bus to go to school for at least the last school year, the children have doubtless made friends with some of the other children who take the same bus.

Taking a school bus presumably adds to the socialization of young children and is therefore a teaching moment – how to behave while waiting for the bus, how to behave on the bus, etc. – which these parents, one of whom makes nearly $100,000.00 yearly and one of whom makes approximately $130,000.00, can afford.

b) School fees [ 32 ] There is no suggestion in the evidence that school fees for these children are extraordinary expenses; therefore, there is no basis for sharing those fees between the parents proportionately according to their incomes. However, the problem is that, in a week on/week off parenting schedule, the obligation to pay school fees may fall disproportionately on one parent according to the parenting schedule. In order to be fair, each parent will pay all of the school fees in alternate years. For the 2016-17 school year, the mother will pay the school fees.

c) Day care expenses [ 33 ] As the parties have done historically, the children’s day care expenses, where necessary, will continue to be paid by each parent for the care they require rather than be treated as a s. 7 expense. The mother will continue to contribute to the father’s day care expenses when she asks the father to care for the children on what would ordinarily be “her” time. So far as I am able to discern, the father has never asked the mother to care for the children on “his” time, but, obviously, if any recourse by him to the mother became necessary, he should make a similar contribution.

d) Health care expenses [ 34 ] If one parent wishes to be reimbursed by the other for any health care expenses - for example glasses, orthodontic expenses, EPI pen - that parent will consult with the other prior to incurring the expense. 4.

In the circumstances here, the mother is given leave to apply for passports for the children without the father’s consent; the passports will be held by the mother; each parent can take the children out of the country without the consent of the other [ 35 ] The mother is given leave to apply for passports for the children without the father’s consent and to hold the children’s passports; each parent is given leave to take the children out of Canada without the other parent’s consent. [ 36 ] In January 2013, in a consent order, the father agreed to cooperate in obtaining passports for the children, to sign the applications for the passports and to hold the passport for the older child.

He has never complied with those obligations. Even during the course of the trial, when the applications were handed to him, while he was testifying, he refused to sign them. [ 37 ] In those circumstances, the court orders that the mother is entitled to apply for passports for the children without the father’s consent. When the passports are received, they will be held by the mother. If the father wishes to travel outside Canada with the children, he will request the passports from the mother at least two weeks prior to the anticipated departure.

That request will be in writing and will be accompanied by an outline of the proposed travel plans. [ 38 ] Neither parent requires the consent of the other to travel with the children outside of Canada. The fact that the mother’s partner is from England does not raise any realistic concerns about the possibility that the children would be taken to England to live.

However, if the parents do travel outside of Canada with the children, and indeed if they travel outside Alberta for longer than one week, they will provide to the other parent a general outline of the travel plans, i.e. date of departure, date of return, method of communication during travel. 5.

An accounting for child support will be prepared as of July 31 based on a simple set-off between the parents according to their incomes; whichever parent owes the other retroactive child support will pay off that retroactive portion at the rate of $500.00 per month commencing August 1, 2016; from August 1, 2016, the parent earning the larger gross income will pay a simple set-off to the other [ 39 ] The parents must pay simple off-set child support given the shared parenting regime and their respective salaries; the parent who owes the off-set has varied over the course of time as their incomes have fluctuated. [ 40 ] The information available at the trial calculated only the incomes of the parents and their respective child support obligations up to 2014.

Given that the father’s income decreased slightly in 2014 from 2013 and that the mother’s income has increased by about one third from 2013 to 2014, and increased further since then, it would be inappropriate to require the father to pay the amount he would have been required to pay calculated as of the end of 2014. [ 41 ] The parents will now prepare an accounting for child support as of July 31, 2016. In order to facilitate this, the father will bring his employment income information up to date as of that date. Should he fail to do so, it will be presumed that his income for 2015

and 2016 was $96,000.00 for each year. [ 42 ] Based on the July 31, 2016 calculation, the parent which owes the other child support will pay that amount at the rate of $500.00 per month, commencing August 1, 2016, until the amount owed has been paid off. [ 43 ] Starting August 1, 2016, the parent earning the greater income – which at the moment appears to be the mother – will begin paying a simple set-off to the other. 6.

The children will remain at Lakeland Ridge School until each of them reaches Grade 9 unless the parents agree on a change of school [ 44 ] The children will remain in school at Lakeland Ridge until further order of the court or the consent of both parents. [ 45 ] In preparation for the 2013 hearing which led to the consent order of January 10, 2013, the father swore an extensive affidavit in October 2012 in which he extolled the virtues of Lakeland Ridge including its high level of resources, its access to technological aids, and the fact that Lakeland Ridge was on a three year program to become a “lighthouse school”. [ 46 ] The father is no longer teaching at Lakeland Ridge.

He now says that the school which he proposes the children should attend – a school which is closer to the school at which he is currently teaching - has, in comparison to Lakeland Ridge, a hockey rink. With respect, that does not compare in pedagogical terms with the benefits the father has previously outlined for Lakeland Ridge. [ 47 ] The father also states that he could more easily get to a new school in case there is any health emergency for either of the children.

With respect, as a teacher himself, he must surely acknowledge that professionals at Lakeland Ridge are trained in dealing with health emergencies for students. The actual care the children will receive in a health emergency is undoubtedly excellent at any of the schools in the district. [ 48 ] In any event, of course, what the court must focus on is what school choice is in the children’s best interests.

The school which one of the children has been attending for the last three years, and the other for one year, has two features which are important: on the one hand, the teachers and the administration are knowledgeable about these particular children, including the allergy issue involving one of them. The teachers and the administration are also knowledgeable about these particular parents, which is also important especially in a high conflict situation.

On the other hand, the children are familiar with this school and with their classmates; this stability is important in the lives of all children, but is especially important where the relationship between the parents is as fraught as is the one afflicting these parents. [ 49 ] Finally, the January 2013 consent order stated that the children would attend Lakeland Ridge until further order of the court or agreement between the parties. Because no material change of circumstance has arisen, and no consent has been given, in relation to any change of school, there is no basis to change the previous order. 7.

Each party will share in the other’s pension for the period from marriage until separation [ 50 ] As is the standard in matrimonial property disputes, each of the parties is entitled to share in the property acquired by the other spouse during the marriage. Here, Mr. Kohlenberg acknowledges that the only item of matrimonial property to be divided between himself and his former spouse is their pensions. There is no objection by either of the parties to the usual division of pension increases during the marriage. [ 51 ] The parties will share in their respective pensions according to the proposal made by Ms.

Lukan. 8. Costs previously awarded by the court to the mother will be paid by the father on August 1, 2016 [ 52 ] The father will, on August 1, 2016, pay to the mother the costs which have previously been awarded to her by court order. [ 53 ] There have been three previous court orders awarding the mother costs for various hearings: on October 2, 2015, this court ordered Mr. Kohlenberg to pay costs of $150.00, forthwith; on August 21, 2015, this court ordered Mr. Kohlenberg to pay costs of $500.00 forthwith; on August 11, 2010, this court ordered Mr. Kohlenberg to pay costs of $500.00. Mr.

Kohlenberg has not made any of these payments. [ 54 ] A court order to do something is not a suggestion; it is a command. Where the command is to do something “forthwith”, the thing must be done immediately. Where no date has been set for compliance with a court order, it is assumed that compliance will occur within a reasonable period. A more than reasonable time has elapsed since August 2010. Mr. Kohlenberg will therefore pay Ms. Lukan the total of the costs awarded to date, or a total of $1,150.00, on August 1, 2016. 9.

Costs of this hearing [ 55 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. [ 56 ] I observe that although Ms. Lukan has been successful on most, if not all, issues and therefore would normally benefit from an award of costs on a party and party, or tariff, basis, each of the parties made reference during the trial to formal or informal settlement offers which may have an effect on costs. Therefore, I give to the parties the opportunity of reaching agreement on costs, or, if that is not possible, to bring the issue of trial costs before me for decision.

Heard on the 27 th, 28 th and 29 th days of June, 2016. Dated at the City of Edmonton, Alberta this 11 th day of July, 2016. J.B. Veit J.C.Q.B.A. Appearances: Anne Ferguson Switzer, Q.C., McAllister LLP for the plaintiff, Ms. Lukan Cory Dean Kohlenberg, on his own behalf