Olydam v Olydam, 2016 ABQB 571

Court of Queen’s Bench of Alberta Citation: Olydam v Olydam, 2016 ABQB 571 Date: 20161014 Docket: 4803 159130 Registry: Edmonton Between: Francie Marie Louise Olydam Applicant - and - Shannon James Olydam Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Douglas R. Mah _______________________________________________________ [ 1 ] At the conclusion of the Special Chambers Hearing on October 6, 2016, I indicated to the parties that I would dictate this Memorandum of Decision for placement on the Court file.

The purpose of doing so is that if a subsequent application is brought on the same topic, the Judge hearing it will have the benefit of knowing what happened the previous time. Background [ 2 ] The Applicant, Francie Marie Louise Olydam, is the mother and the Respondent, Shannon James Olydam, is the father of two children, ages 10 and seven. The parties were married on August 20, 2005 and separated on November 13, 2010. They executed a Settlement Agreement regarding custody, spousal support, child support and matrimonial property, effective January 28, 2011.

On February 6, 2012, Justice Graesser granted a Divorce Judgment which provided for joint guardianship of the children and shared parenting and joint custody on an alternating week basis.

[3] Implementation of the custody/parenting aspects of the Divorce Judgment followed a set of rules stipulated in the January28, 2011 agreement. Of particular importance are the following paragraphs: 4.1 The parties promise that they will respect the rights of the children and that each party will endeavour to instill in the children,respect for both parents, and that neither party shall by any act, remark, comment, omission, or innuendo attempt to alienate the childrenfrom the other parent.

The children shall be taught to continue to love and to respect both parents. 4.2 Francie and Shannon will share parenting time equally, having alternating weeks with the children. 4.3 Every Friday, the parent who has had the children that week will drop them off at the other parent’s home by 6:00 p.m. [4] Dropping off the children under paragraph 4.3 appeared to operate satisfactorily for some five years.

What precipitates thisapplication is an incident in early 2016 during a drop-off by the Applicant at the Respondent’s house, involving an unpleasant exchangebetween the Applicant and the Respondent’s new partner, Ms. H. The Respondent sought to remediate the situation by asking both theApplicant and Ms. H to stand back during the drop-off and not engage one another. The Respondent says in his Affidavit evidence thatMs.

H agreed to do this. [5] In response to the incident, the Applicant took out this application, originally returnable in morning Family Chambers onMarch 18, 2016, to in essence vary the Divorce Judgment to require the Respondent to do both pick-up and drop-off the children at theApplicant’s residence every Friday. [6] There was a second aspect to the application, namely, that the Applicant be given custody of the children during thoseperiods of time that the Respondent is out of town working.

However, that branch of the application was withdrawn at the hearing as theApplicant conceded that the Respondent was not working out of town. [7] On March 18, 2016, Justice Crighton granted an Interim Order directing the Respondent to do the drop-offs. I interpret thisorder to mean that he is to deliver the children every Friday at the commencement of the Applicant’s parenting week and pick-up thechildren every Friday at the commencement of the Respondent’s parenting week, in either event at 6:00 p.m. at the Applicant’sresidence. The Applicant now seeks to make this new arrangement permanent.

The Respondent, in response, seeks to revert to the termsof paragraph 4.3 of the Settlement Agreement. Position of the Parties [8] The Applicant cites two grounds: • The intervention or presence of Ms. H during the drop-offs at the Respondent’s residence necessitates the variation because suchdrop-offs can no longer be conducted in a respectful manner; and • The Respondent has fallen behind in child support payments. [9] In response, the Respondent says: • The conflict between the Applicant and Ms.

H does not meet the test of “material change in circumstances” as set out in Section17(5) of the Divorce Act and interpreted in cases such as Gordon v Goertz, (SCC), [1996] 2 SCR 27 and otherauthorities cited in the Respondent’s brief; • and neither is any purported default in child support payments sufficient to meet the material change test. Decision [10] My observation at the hearing was that, as family law files go, this one was not bad.

What I meant was, for a period of somefive years, the parties had more or less dutifully followed the Divorce Judgment and the rules set out in the settlement agreement withoutrequiring the Court’s intervention. I did admit to being taken aback by the fact that a special chambers application had been initiated todeal with whether the children should be dropped off at one residence or the other, on every second Friday. This was particularly sobecause, as the Affidavit evidence indicates, the two residences are some five minutes driving distance from one another.

One wouldhave thought that reasonable people could have worked this out; however, the Applicant felt it necessary to bring the matter to court toaddress the conduct of Ms. H. [11] I will first deal with the ground relating to the purported child support arrears. I had no evidence before me as to how muchthe arrears are and from when they originated. In my view, whether the Respondent is up-to-date or not in child support payments isirrelevant to the issue of who should do the drop-offs and where the drop-offs should take place.

Even if the Respondent were up-to-date, the main problem, that is the Applicant’s conflict with Ms. H, would still exist. We would still be here. In effect, the Applicant isasking me to penalize the Respondent for default in child support obligations by making him do all the driving. I do not see how the twoare connected. The Applicant has other remedies, such as enlisting the intervention of MEP, which she has identified herself and which ismore appropriate. [12] I will now deal with the matter of the conflict with Ms. H. First, I note that Ms.

H is not a party to these proceedings and noapplication was brought against her. Therefore, I do not have the power to make an order compelling Ms. H to do or refrain from doinganything. However, having said that, to me, the Respondent had a reasonable plan in place to deal with this issue. (

a) Asking Ms. H to stand back at the Respondent’s residence when he is home to receive the children; and

(

b) Asking Ms. H, when he can’t be there to receive the children, to engage with the Applicant in a polite and civil manner. [ 13 ] I agree with the Respondent’s approach for two reasons. First, it has not been shown to me why it wouldn’t work. Since the incident in question, Ms. H has not been given the opportunity to show that she has mended her ways.

Second, when I look at the Settlement Agreement together with the Divorce Judgment (and I note that both parties were represented by counsel at the time of the Settlement Agreement), I see an intention that both parties equally share the benefit and burden of equal parenting time. This would include the driving. The Settlement Agreement at paragraphs 4.1 through 4.15 is the mechanism by which the joint custody and equally shared parenting provisions of the Divorce Judgment are to be implemented. This mechanism worked well for something in the area of five years.

It was sent off the rails because of a deteriorating dynamic between the Applicant and Ms. H which culminated in the one incident.

It makes sense to me, rather than throw out the mechanism, that the parties should address the cause of the incident and preserve the equality of parenting benefit and burden intended in the Settlement Agreement and Divorce Judgment. [ 14 ] The upshot is that I am not satisfied based on the way the Supreme Court of Canada has directed me in Gordon v Goertz to apply Section 17(5) of the Divorce Act that there has been a “material change in the circumstances” by the children or in the way either or both of the parties can meet their needs. Further, mere friction between the Applicant and Ms.

H does not meet the burden of “material change in circumstances” discussed in Ryan v Ryan , 2008 ABCA 54 . Accordingly, I am not going to order the Respondent to do all the driving and dropping off. The application to vary the Divorce Judgment is therefore dismissed. What this leaves the parties with is the process outlined in

Section 4.3 of the Settlement Agreement. How to Deal with the Conflict Issue [ 15 ] In reviewing the Affidavits filed, I noted that the conflict between the Applicant and Ms. H was not restricted to the incident or even encounters during the drop-offs. There were text messages shared among all three persons which displayed indelicate language. These text messages were rife with blame and recrimination on both sides. [ 16 ] During the hearing I discussed two options that were available to me. First, I could express hope that the parties and Ms.

H comply with the spirit and letter of paragraph 4.1 of the Settlement Agreement and follow a set of expectations that I outline. The second option would be to convert those expectations into a series of detailed rules embodied in a court order. The downside to the second approach is that it might cause either party to haul the other into court at the slightest perceived breach. [ 17 ] Both Mr. Olydam and Ms. Olydam strike me as mature, intelligent, responsible and reasonable adults who have the best interests of their children at heart.

As I said during the hearing, whether they like it or not, they are bound to each other through their children for at least another eight years in the case of the oldest child, and another 11 years in the case of the youngest, or until the children are respectively old enough to make their own choices. [ 18 ] The Applicant said during the hearing that all she wants is for the behavioural standards stipulated in paragraph 4.1 of the Settlement Agreement to be adhered to, and that this should extend to Ms.

H. [ 19 ] Rather than order the parties to comply with specific behavioural rules, I will instead express the Court’s expectations as to how the parties should govern themselves going forward. While Ms. H in not a party to the Settlement Agreement, one should hope that she feels at least a moral obligation, as the Respondent’s partner, to respect his wishes by keeping the peace. My expectations are: 1. Ms. H will keep a respectful distance when the Applicant is doing the drop-off at the Respondent’s residence and the Respondent is there to receive the children. 2. The Applicant and Ms.

H will refrain from engaging each other if they happen to see or encounter one another during a drop-off, when the Respondent is present. 3. If the Respondent is not available to receive the children during a drop-off at his residence and there is a need to communicate information concerning the children at the time of the drop-off, both Ms. H and the Applicant will deal with each other in a polite, civil and business-like manner. 4. The parties and Ms.

H, when communicating with one another about or in front of the children, will do so in a polite, civil and business-like manner whether that communication is in person, over the telephone, by text or email. 5. Ms. H will refrain from communicating with the Applicant in any way unless it concerns an important matter involving one or both children and the Respondent himself is not available to do the communication, in which event such communication in whatever form will be polite, civil and business-like. [ 20 ] These expectations are in the nature of recommendations. If Ms.

H fails to meet these expectations, then the Applicant says she will bring another application to vary the Divorce Judgment. Consequently the burden is on the Respondent to do what he can to encourage Ms. H to comply. If not, the consequences will fall on the Respondent. None of this is beyond the capability of people acting reasonably and in a civil manner. [ 21 ] Although I dismissed the application, I order that no costs be paid. Mr. Cheng is directed to prepare the Order, which I expect will be a simple Order documenting the dismissal of the application, and I invoke rule 9.4(2)(c).

I also requested that either Mr. Cheng or Mr. Olydam provide a copy of this Memorandum to Ms. H for her review when available. Heard on the 6 th day of October, 2016.

Dated at the City of Edmonton, Alberta this 14 th day of October, 2016. Douglas R. Mah J.C.Q.B.A. Appearances: Francie Olydam Self-Represented Litigant Andrew Cheng Ascension Law for the Respondent