Lukan v Kohlenberg, 2016 ABQB 482

Court of Queen’s Bench of Alberta Citation: Lukan v Kohlenberg, 2016 ABQB 482 Date: 20160829 Docket: 4803 153865 Registry: Edmonton Between: Leslie Michelle Lukan (formerly known as Kohlenberg) Plaintiff - and - Cory Dean Kohlenberg Defendant _______________________________________________________ Endorsement of the Honourable Madam Justice J.B. Veit _______________________________________________________ [ 1 ] Following the conclusion of the trial of this matter, two issues remain to be resolved. [ 2 ] The first is the time of the parenting exchange of the children.

In the trial decision I had indicated that a week on, week off regime where children are involved in recreational soccer with practices during the week and games on the weekend might work better with an exchange at school on Monday morning. I meant, of course, exchange at school on Monday when the children have school on Monday. At this hearing, the father indicates that he wants to have exchanges on Monday mornings at the school including on Mondays which are the last day of a long weekend; in other words neither parent would ever have a long weekend with the children.

Moreover, the father insists that, when school is in, rather than taking the bus to school, the children should be delivered on Monday morning to the school by the mother or her representative by 7:45 a.m. so that the father can spend some time with them before school starts because he hasn’t seen them for a week. [ 3 ] On this issue, for the following reasons, I adopt the mother’s proposal:

- an exchange after school on Friday will ensure that each of the parents will have a long weekend with their children as those opportunities arise; - the parents continue to have a difficult relationship as exemplified not only by the father’s position on long weekends and Monday morning exchanges, but also by his assertion during the course of this hearing that the mother lied during her testimony about bussing fees. The mother did not lie: Ms.

Lukan testified that there would be a bussing fare discount if the fare were paid by the end of June, as recorded by FTR recording 12:05:37 on June 27, 2016 in courtroom 416. [ 4 ] In light of the continuing difficult relationship between the parents, it remains important in the best interests of the children to minimize the opportunities for conflict between them: pick-up from the school remains the best overall way to achieve that result. [ 5 ] Unfortunately, the new parenting regime did not start after the trial, so that neither parent had a three week, or even two week, continuous time with the children during the summer holidays.

The week on, week off parenting

schedule will commence with the father’s pick up of the children at school in the afternoon of Friday, September 2 nd . [ 6 ] The second remaining issue is costs. The mother, usefully, made two formal offers of settlement on January 28, 2015 – one relating to parenting issues and one relating to property issues; acceptance of one did not require acceptance of the other. When these offers were made, Mr. Kohlenberg was still represented by one of his three successive lawyers. [ 7 ] Once he became self-represented, Mr. Kohlenberg peppered Ms. Lukan’s lawyer with communications.

Over one four day period, he left 32 messages on the lawyer’s phone. The tone of these messages can be gleaned from some of the written communications: - August 26, 2015: Finally, you are not acting civil and are defiantly not acting in good faith – both items that you need to abide to according to the Law Society of Alberta Code of Conduct. - March 22, 2016: “The only people mad at you for telling the truth, are those that are living a lie” . . . You have been more than difficult to work with, and that only negatively impacts the children involved. Therein lies the problem.

Your client is not doing what is beneficial for the children and you are KNOWINGLY supporting her. Family court cannot support that, and, if needed, I will contact Alberta Justice to discuss your actions, or lack thereof. I demand to be treated with respect and not with the arrogance and disdain that you have directed at me. [ 8 ] The mother’s lawyer had told Mr. Kohlenberg that if he had an offer of settlement, he should make it in writing. On June 14, 2016, Mr. Kohlenberg did make an offer in writing.

With respect to the parenting regime, he proposed a continuation of the 2-2- 5-5 regime with added time for him to take the children to extra-curricular activities, and to keep them overnight, if Ms. Lukan was working.

He also asked for the weekend of October 29 so that he could take the children to a Saskatchewan Rough Rider game in Regina. [ 9 ] With respect to communication, he agreed to Family Wizard, but added that there should be an additional communication at the end of each 5 day parenting period for exchange of significant details with respect to the children. [ 10 ] With respect to extra-curricular activities, he acknowledged that Ms.

Lukan had only arranged for activities for the children during her time with them whereas he had enrolled them in a variety of activities – indoor and outdoor soccer, skating and ball hockey – which involved the children going to those activities while they were with the mother. He proposed that this continue but that the children not be involved in any other extra-curricular activities without the consent of both parents [ 11 ] With respect to travel, he stated that he was amenable to complying with a previous court’s order that he sign the children’s passport applications.

He proposed that each parent should be required to consent to the other’s travel with the children outside the country. [ 12 ] With respect to the holiday schedule, he requested an amendment to deal with Hallowe’en. [ 13 ] With respect to school, he proposed that the children’s school be changed. [ 14 ] With respect to child support, he agreed to a simple offset.

With respect to extracurricular activities, he proposed that each parent would continue to pay the expenses for those activities in which the parent has enrolled the children. [ 15 ] With respect to property, he proposed that the pensions be divided. [ 16 ] With respect to costs, he proposed to pay approximately one third of the costs which had already been ordered by various courts. [ 17 ] With respect to the trial, he proposed to adjourn the trial sine die if Ms. Lukan agreed with his proposals. [ 18 ] On June 24, Ms. Lukan advised Mr.

Kohlenberg that she could not accept his offer in its entirety. [ 19 ] At the costs hearing, Mr. Kohlenberg stated that he could not afford to pay costs and that he expected to go on stress leave, perhaps as early as August 26, and that, because he would then only be earning 70% of his regular salary, Ms. Lukan would be required to pay him more child support. I explained to Mr.

Kohlenberg at the hearing that impecuniosity, even if proved, does not justify a denial of a costs award: the most that might happen is that the person who has the benefit of the award would have difficulty collecting it. [ 20 ] Because the property issue was narrow – relating only to pensions with institutional employers - and because Mr. Kohlenberg agreed to divide his pension - even though he would have done better financially if he had accepted Ms. Lukan’s offer - costs will only be awarded on the basis of Column 1 rather than Column 2. [ 21 ] As can be seen from the trial decision, Mr.

Kohlenberg's offer was not matched by the court's decision.

[ 22 ] For the following reasons, I award Ms. Lukan double costs from January 28, 2015 on Column 1: - talk about settlement is not the equivalent of a settlement offer: Bergen v Gaetz 2016 BCSC 896 at para. 26 . Mr. Kohlenberg’s repeated assertions that he was willing and anxious to settle the dispute is not helpful and cannot be considered to be a settlement proposal; - the fact that Mr. Kohlenberg’s settlement proposal was made within 2 weeks of the proposed commencement of the trial does not necessarily invalidate the offer.

In some cases, an offer made such a short time prior to the scheduled commencement of trial might have failed the “genuine offer” test set by our Court of Appeal in Allen (Next Friend of) v University Hospital Board 2006 ABCA 101 . However, this trial was only ever going to involve the two principals as witnesses, so there would have been no problems connected to the dismissal of other witnesses; - in the result, however, Mr. Kohlenberg’s settlement proposal did not equal or better the court’s judgment, except on very minor points which were essentially not in dispute.

A trial was necessary to settle these matters, and Ms. Lukan was successful at trial. Ms. Lukan is therefore entitled to double costs on Column 1 from [ 23 ] In conclusion on the costs issue, I will ask Ms. Lukan’s lawyer to recalculate costs on the basis which I have outlined above, including with double costs from January 28, 2015. I will then give judgment to her for that amount. [ 24 ] There is also the issue of the costs of the August 26, 2016 hearing. Ms. Lukan was successful on that appearance and is entitled to costs of that appearance which I set at $500.00. Heard on the 26 th day of August, 2016.

Dated at the City of Edmonton, Alberta this 29 th day of August, 2016. J.B. Veit J.C.Q.B.A. Appearances: Anne Ferguson Switzer, QC (McAllister LLP) for the Plaintiff Cory Dean Kohlenberg on his own behalf