McKernan v Ludwig, 2016 ABQB 537

Court of Queen’s Bench of Alberta Citation: McKernan v Ludwig, 2016 ABQB 537 Date: 20160926 Docket: 4803 137521 Registry: Edmonton Between: Cherie Faith McKernan Plaintiff - and - Peter James Ludwig Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Sterling M. Sanderman _______________________________________________________ [ 1 ] I was appointed to case manage this matter in late 2009. From my perspective, the main focus of the case management was to ensure that Mr. Ludwig was able to maintain a meaningful relationship with his daughter.

She celebrates her 15 th birthday in December, 2016. Although some success was obtained in the earlier stages of case management, Mr. Ludwig’s daughter has not seen him since late 2015. This appears to be a conscious choice on her part. Mr. Ludwig has shown remarkable maturity in relation to this development. He understands that this is a complex issue and has not rushed back to court in order to force his daughter to do something against her will.

He realizes the potential harm in following this course of action. [ 2 ] The maturity that he shows is refreshing; for in the past, both litigants have exhibited behaviour that has been counterproductive to the overall development of their daughter. They have acted selfishly and immature in the past. Numerous court appearances have been made in order to resolve issues that have been exacerbated by the way the parties treat one another. The Court has received affidavit evidence and viva voce evidence in the past. The parties have been extremely litigious.

They have wasted their time, energy and resources pursuing many matters that have little consequence in their daughter’s life.

[ 3 ] The conduct of both parents has been wanting. Both have been more interested in keeping score and getting the upper hand. Motivation of this sort blinds the two of them to the needs of their daughter. No doubt, she has been greatly affected by the conduct of both parents. Neither comes to court with clean hands and both should be ashamed of how they have neglected the best interests of their daughter. [ 4 ] I have continued to keep this matter in case management since 2009 in order to prevent Mr. Ludwig from losing complete contact with his daughter.

As long as there was any possibility of establishing regular, meaningful contact between the two, I wished to provide that opportunity. That time has now passed. [ 5 ] Hostility and confrontation permeates the relationship between the parents. They have chosen to quarrel about the most insignificant and innocuous matters over the past seven years. Whether they enjoy conflict or simply must come out ahead is unknown to me. Whatever drives the dispute between the parties has not abated since case management began. [ 6 ] A number of orders have been given in the past. Some of them have been very specific.

This degree of specificity has been necessary to prevent quarrelsome conduct between the two in relation to the

interpretation of clauses that are normally found in orders dealing with access. In some cases, the Court can rely upon responsible litigants to resolve minor issues between themselves in a fashion that truly reflects a joint concern about the best interests of their child. Unfortunately, this is not one of them. [ 7 ] The latest application was brought in the first instance by Ms. McKernan. She wanted her daughter’s passport returned to her by Mr. Ludwig so she could travel out of the county. She is to hold their daughter’s passport in even-numbered years. Mr. Ludwig holds it in odd-numbered years.

By the Order granted in June of 2014, Mr. Ludwig should have returned the passport to Ms. McKernan in January of 2016. He did not. In January of this year she asked for its return. She had to bring a court application to get a positive response from Mr. Ludwig. He raised issues of vagueness in her travel plans as a reason for not forwarding the passport to her. Eventually, it was sent to her after the court application was brought. Ms. McKernan seeks to invoke the penalty clauses contained in the June 2014 Order for Mr. Ludwig’s non-compliance. Mr. Ludwig responds by setting out in excess of 15 ways in which Ms.

McKernan has not complied with the same order. One could characterize the behaviour of each as juvenile and counterproductive to any meaningful discussion in relation to creating an environment in which their daughter would benefit. [ 8 ] As all these matters arise from alleged breaches of an order that was crafted in order to regularize Mr. Ludwig’s contact with his daughter, I made inquiries with Dr. Bonnie Haave, who had been seeing the parties’ daughter in order to try and provide guidance in order to foster a proper relationship between father and daughter. Dr. Haave has provided her opinion to counsel.

It is Dr. Haave’s opinion that further attempts at this time to improve the quality of the access between father and daughter have little chance of success. My decision in relation to the original application has been delayed in order to allow Dr. Haave to provide her opinion in relation to the wisdom of continuing the relationship between father and daughter. [ 9 ] It would not be prudent to continue this access regime. The court order is not being followed. The actions of both parties have contributed to the failure of the court order. Consequently, it is pointless to keep it in place.

It will continue to be disobeyed. [ 10 ] Mr. Ludwig’s daughter does not have to visit her father in accordance with the terms of the June 13, 2014 Order. Her decision to break off contact with him is her loss. She is free to contact him at any time in order to re-establish a relationship with him on terms that the two can work out. As the child of the marriage matures, she will hopefully realize that it is in her best interests to develop a meaningful relationship with her father.

Hopefully, she will revisit her decision to break off contact and will seek out this man who wishes to play an important role in her life. [ 11 ] No penalty will be imposed upon Mr. Ludwig for failure to return the passport. Although he is in breach of the Order, his breach pales in significance to that which he has lost. [ 12 ] As this matter was in case management only to ensure that the father/daughter relationship could be maintained, the complete breakdown of this relationship removes the need for case management. The function of the Court in this regard is at an end. Heard on the 2 nd day of August, 2016.

Dated at the City of Edmonton, Alberta this 26 th day of September, 2016. Sterling M. Sanderman J.C.Q.B.A. Appearances: Brook S. Mishna, Mishna Briere & Oehm LLP

for the Plaintiff, Ms. McKernan Kelly W. Wong, Kelly Wong Law Office for the Defendant, Mr. Ludwig