Rensonnet v Uttl, 2016 ABQB 95

Court of Queen ’ s Bench of Alberta Citation: Rensonnet v Uttl, 2016 ABQB 95 Date: 20160218 Docket: FL01 17010 Registry: Calgary Between: Anne Rensonnet Plaintiff - and - Jan Uttl Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice G.H. Poelman _______________________________________________________ Table of Contents I Introduction . 3

II

Summary of Testimony . 4 A. Anne Rensonnet 4 1. History of Relationship . 4 2. The Cochrane House . 5 3. Parenting after Separation . 6 4. Schooling . 7 5. Surnames . 8 6. Finances . 8 B. Kailee Jacks . 9 C. Bara Cihlarova . 9 D. Andrew Johnson . 11 E. Merritt Penhall 11 F. Cory Clifton . 12 G. Megan James . 12 H. Jan Uttl 13 1. Personal Background . 13 2. Relationship with Anne Rensonnet 13 3. Parenting before Separation . 14 4. Parenting after Separation . 14 5. Child Support 15 6. Proposed Parenting Plan . 15 7. Parenting Conflicts . 16 8. The Cochrane House . 17 9. Name Change . 17 10. Mr.

Uttl’s Work and Finances . 18 11. Flight Risk . 19 I. Dana Cornea . 19 J. Stephan Price . 20 K. Francois Belanger 20 L. Charlene Belanger 20 M. Kira Watts . 21 N. Leslie Tuck . 21 O. Nicole Price . 22 III Assessment of Evidence . 22 IV Parenting . 23 A. Current Regime . 23 B. Positions . 24 C. Legal Principles . 24

D. Shared Parenting or Primary Care . 26 E. Parenting

Schedule . 28 F. Schooling . 28 G. Travel Restrictions . 29 H. Name Change . 30 V Child Support 31 A. Current Arrangements . 31 B. Mr. Uttl’s Income . 31 1. Legal Principles . 31 2. Determination of Income . 33 C. Retroactive Child Support 36 1. Legal Principles . 36 2. Application of Principles . 37 D. Future Child Support 39 VI Judgment 39 I Introduction [ 1 ] Ms. Rensonnet and Mr. Uttl had a common-law relationship from 2009 until 2013, during which they had two sons: the first born at the end of 2009, and the second born in mid-2011. [ 2 ] Following their separation, Ms. Rensonnet and Mr.

Uttl have disputed most aspects of how the children should be parented, including who has primary care and where they attend school. They also disagree on what child support Mr. Uttl owes from separation to trial, and what child support, if any, should be awarded for 2015. [ 3 ] I will begin my reasons with a review of the testimony of the many witnesses, followed by an overall assessment. I will then turn to consideration of and findings on the disputed issues of parenting and child support. II

Summary of Testimony A. Anne Rensonnet 1. History of Relationship [ 4 ] Ms. Rensonnet was born in Belgium, and moved to Toronto with her parents early in life. She was raised by two French- speaking parents, and is fluent in both French and English. [ 5 ] Mr. Uttl was born in the Czech Republic. His first language is Czech, but he also speaks English well. [ 6 ] The parties began cohabiting in January 2009, when Ms. Rensonnet moved into Mr. Uttl’s house in Cochrane (the “Cochrane House”), title to which was held by his former common law spouse.

They were both self-employed consultants and were able to work primarily from home. [ 7 ] Ms. Rensonnet and Mr. Uttl had planned a long European vacation the summer of 2013. Mr. Uttl went over in May, to enable him to spend additional time with his elderly father in the Czech Republic. [ 8 ] The parties were having difficulties with their relationship. It had broken down temporarily in 2012. On July 4, 2013, before joining Mr. Uttl in Europe, Ms. Rensonnet sent him an email that referred to the increasing level of acrimony between them.

She stated that she was “prepared to call it quits” and wanted to ensure that he still wished her to come to Europe with the children. [ 9 ] Ultimately, Ms. Rensonnet flew to Europe with the children and their nanny, Bara Cihlarova, on July 13, 2013. The family stayed together until July 22, when Mr. Uttl left for his father’s home in the Czech Republic with the children and Ms. Cihlarova. Ms. Rensonnet continued with her vacation in Europe. [ 10 ] Much of the testimony in direct and cross-examination focused on communication that occurred between the parties after they

went separate ways in Europe, before Mr. Uttl returned the children to Ms. Rensonnet. Many emails were exchanged wherein the parties disputed dates, arrangements, and locations. Mr. Uttl sent Ms. Cihlarova to Prague after only four or five days at Mr. Uttl’s father’s residence (elsewhere in the Czech Republic), and Ms. Rensonnet testified that she became increasingly alarmed about whether Mr. Uttl would return the children to her care. [ 11 ] Ultimately, Mr. Uttl and the children met Ms. Rensonnet and Ms. Cihlarova on August 25 in Europe. During their meeting, Mr. Uttl recorded all of Ms.

Rensonnet’s statements without her knowledge. The couple then went their separate ways: Mr. Uttl returned to Calgary on August 30, and Ms. Rensonnet returned on September 28 with the children. [ 12 ] While in Europe Ms. Rensonnet had arranged for her sister, Veronique Rensonnet, to enter the Cochrane House and remove all her personal property, and most of the children’s clothes and toys. Ms. Rensonnet wrote a lengthy memo to Veronique, beginning with the following instruction: “If in doubt, pack it and move it.

It will be infinitely easier for me to return items I found are not mine then to recover items left behind!” Ms. Rensonnet provided details on what to take from the house and where to find it. Veronique went to the house with a panel van shortly before Mr. Uttl returned to Calgary, and packed and removed the items. [ 13 ] On September 26, 2013, Ms. Rensonnet’s counsel obtained an ex parte order giving her interim day to day care and control of the children, giving Mr. Uttl alternate weekend and alternate Thursday access, and restraining Mr.

Uttl from removing the children from the province of Alberta or contacting Ms. Rensonnet’s employer. The order contained a police enforcement clause. [ 14 ] Ms. Rensonnet gave some of her reasons for seeking the order: she was worried because Mr. Uttl said he would be picking the children up at the airport; she was upset that they had no agreement on parenting; and she was feeling threatened. She was also concerned that the children would be very upset if Mr.

Uttl took them to the Cochrane House, because she had instructed her sister to move her possessions to a new rental home in southwest Calgary. [ 15 ] While the ex parte order came before the court for review on several occasions, it has remained in effect with the exception, by consent, that Mr. Uttl’s weekend access was extended to Monday morning, and travel was permitted to British Columbia. 2. The Cochrane House [ 16 ] When Ms. Rensonnet began cohabitating with Mr. Uttl, the house in which he resided was in the name of Susan Mulholland, a former common law spouse. It appears that for part of the time Mr.

Uttl and Ms. Rensonnet were cohabitating, Ms. Mulholland lived in a separate part of the residence. [ 17 ] In 2011, as requested and arranged by Mr. Uttl, title was transferred by Ms. Mulholland to Ms. Rensonnet. In the transfer documents, Ms. Rensonnet swore an affidavit that circumstances of the transfer were assumption of mortgage and cash, and that the value of the land was in her opinion $475,000. During cross-examination she acknowledged those statements were untrue. She paid no consideration for the transfer. Even when title came into her name, she understood that the house primarily belonged to Mr. Uttl.

It appears that the only “mortgage” or charge on the property was a $200,000 line of credit. [ 18 ] After Ms. Rensonnet and Mr. Uttl separated in late 2013, Ms. Mulholland registered a certificate of lis pendens against the property, alleging that Ms. Rensonnet had agreed to pay $275,000 for the 2011 transfer. Ms. Rensonnet denies that there was any agreement for her to pay money to Ms. Mulholland. [ 19 ] Much of the testimony and many documents were concerned with the quagmire that resulted when the parties disagreed on how to deal with rent from tenants who had moved into the Cochrane House in summer of 2013.

Mr. Uttl refused to accept the tenants’ payments for utilities and threatened to have them cut off. The tenants left, voluntary foreclosure proceedings began, and Mr. Uttl voluntarily vacated the property in early 2015. [ 20 ] For about six weeks he lived in a basement suite in Airdrie, and moved to northwest Calgary on May 1, 2015. 3. Parenting after Separation [ 21 ] As indicated above, the September 26, 2013 ex parte order as varied governed parenting arrangements following the separation. Ms. Rensonnet is primarily responsible for care of the children. Mr.

Uttl has them in his care every other weekend, and every other Thursday. [ 22 ] Mr. Uttl’s efforts to set aside or significantly vary the ex parte order have been unsuccessful because disputed evidence made a trial necessary. Ms. Rensonnet refused to consent to change the order to divide parenting time more evenly. Her reasons, given throughout her testimony, may be summarized as follows:

a) She was the one who handled all aspects of caregiving before separation. Even when she was spending more time working, she took responsibility for the children’s food, medical and sanitary needs. For the most part, she has always been the one spending the great majority of time with the children.

b) Mr. Uttl does not deal with small children as well as Ms. Rensonnet does. She acknowledges that Mr. Uttl now is much more involved in primary parenting, and does a better job when he has the children than he did before separation.

c) Ms. Rensonnet has taken the initiative in seeking help through programs to assist separated couples in dealing with their differences. For example, she wanted to participate in the New Ways for Families (“NWFF”) program, and fully completed the part she was able to do on her own. Mr. Uttl refused to participate voluntarily, but did the individual portion under court order. Neither of the parties have completed the NWFF parent and child portion because Mr. Uttl does not want the children to be involved.

d) Ms. Rensonnet sought a bilateral assessment to assist in determining parenting arrangements. Mr. Uttl was not prepared to

cooperate, and Ms. Rensonnet did not pursue the assessment because, while it was ordered, it was conditional on her paying the entire amount, which she could not afford.

e) When Mr. Uttl was in Airdrie for six weeks, Ms. Rensonnet tried to be cooperative in arranging other pick up and location points and times, as the children were often with Mr. Uttl’s brother, Bob Uttl, in northwest Calgary. Mr. Uttl was unwilling to discuss any changes without a new court order and removal of the police enforcement clause.

f) Ms. Rensonnet suggested the parties begin using the “Family Wizard” program, designed to assist in communication and record- keeping regarding parenting by separated couples. Mr. Uttl did not want to participate.

g) Ms. Rensonnet permitted Mr. Uttl to travel to British Columbia with the children, a variation of the ex parte order, to spend time with Mr. Uttl’s family members.

h) Ms. Rensonnet lives in an ideal area where she and the children are surrounded by many friends and supporters. There are many parks and outdoor places for the children to play.

i) Ms. Rensonnet offered to be flexible in modifying meeting places and times to accommodate Mr. Uttl’s teaching

schedule while he taught a course at SAIT Polytechnic. He was, again, resistant to any suggested changes, unless Ms. Rensonnet was willing to change the ex parte order and remove the police enforcement clause.

j) Mr. Uttl declined a number of invitations Ms. Rensonnet passed on to him to bring the children to birthday parties they were invited to during his parenting time. He simply indicated he had other plans for them on those days.

k) Mr. Uttl declined to take his eldest son to a preschool “meet and greet” event that was during his parenting time. However, he did attend that son’s preschool graduation.

l) Ms. Rensonnet is keeping the children active in many activities, both structured and unstructured. These include sports, arts, outdoor activities like horseback riding and camping, crafts, and activities and tasks around the house, including gardening and meal preparation. The children have a good routine, waking up with “cuddle time,” going about their scheduled activities, play time and chores, and closing the day with additional evening routines including more cuddle time. There is stability and routine in their lives.

m) Ms. Rensonnet says that she takes every opportunity to speak positively to the children about their father. One of the things she learned from NWFF is to come up with positive statements about Mr. Uttl. She attempts to say positive things to the children in a regular way, such as recognizing how good he is at outdoor sports and other activities, such as camping in the mountains, which he uses as teaching opportunities. She recognizes that the children are “part mom and part dad” and tries to be positive about their dad’s qualities.

n) She teaches the boys how to make responsible choices about their own spending. She has begun giving them allowances, and they receive money from deliveries to the bottle depot. Understandably, Mr. Uttl has a very different perspective on these matters. [ 23 ] Ms. Rensonnet was questioned about incidents that tend to show her commitment to co-parenting as weaker than she professes. One example is schooling, to which I will turn presently. Other examples are various annual passes for parks and ski hills, which Ms. Rensonnet purchased but did not inform Mr. Uttl about until he had bought his own passes. 4.

Schooling [ 24 ] Ms. Rensonnet very strongly believes that bilingualism (French and English language fluency) is a significant benefit for the children, opening many career opportunities and helping develop cognitive skills. Ensuring the children are able to speak French fluently is also important to her, because of her personal French background. [ 25 ] Her preferences are for schools in the Francophone system, rather than French immersion. The Francophone system begins teaching English in grade one, while in the French immersion system it is not begun until grade three. [ 26 ] Ms.

Rensonnet acknowledges that she did not notify Mr. Uttl that she was enrolling the children in French programs until after they were registered. She advised him after the registration was completed, on two separate occasions – that is, once for each child. Ms. Rensonnet stated that before separation, the parties had not had many discussions about what type of schooling the children would have. They had considered home schooling because of their love of travel. [ 27 ] Mr. Uttl strongly objected to each of the steps taken by Ms. Rensonnet concerning the boys’ schooling.

First, he objected to the absence of any consultation, let alone consent. Second, he expressed concern about his inability to participate fully in the boys’ educational development, because he could not speak or understand French. Ms. Rensonnet attempted to respond to his objections by pointing out the advantages of French education and the ability of Anglophone parents to play a constructive role, but she did not offer to reconsider her decision. [ 28 ] Currently, the eldest son is in the Francophone kindergarten program, and the younger son is in the Francophone preschool program.

He attends its daycare program two or three days a week as well. 5. Surnames [ 29 ] Both children have the surname “Uttl”. Ms. Rensonnet believes their last names should have each parent’s names, hyphenated. She does not care about the order. [ 30 ] For purposes other than strict legal requirements, she uses “Rensonnet-Uttl” as the last name. In cross-examination, Mr. Uttl

pointed out a number of occasions where both children’s last names are indicated as “Rensonnet.” Ms. Rensonnet insists that these are examples of mistakes, where staff of organizations routinely inputted her last name as the surname, and that she has never allowed this to happen knowingly. 6. Finances [ 31 ] Ms. Rensonnet testified that the line 150, “total income,” entry on personal income tax returns would not be an accurate indication of income for child support purposes for her or Mr. Uttl.

Both of them operate their business through companies, are self- employed, and can expense various items that are not tax deductible for most employees. [ 32 ] Ms. Rensonnet’s income has varied, she says, according to economic conditions and her pregnancies and maternity leaves. She received no benefits for maternity leaves.

Further, her income determination is complicated by the fact that her personal corporation has an August 31 year-end, and she takes remuneration out of her corporation in various ways to minimize tax obligations. [ 33 ] She estimated her typical full time income potential at approximately $90,000 per year. When working less than full time, because of childcare responsibilities, her income is usually in the $75,000 to $80,000 range. Recently, she has found that as a self- represented litigant dealing with this case and others commenced by Mr.

Uttl, her income is more realistically about $50,000 per year. [ 34 ] She prepared a document that shows her line 150 income for each taxation year between 2004 and 2014; her company’s total business revenue for fiscal years ending August 31, 2007 through August 31, 2015; and what she terms “business income,” consisting of consulting revenue less legitimate business expenses. She suggests that her income for child support purposes was $37,228, $75,103 and $65,800, for the 12-month periods ending on August 31, 2013, 2014 and 2015 respectively. B. Kailee Jacks [ 35 ] Ms. Jacks is a friend of Ms. Rensonnet.

They met because their children attend the same Francophone school. [ 36 ] Ms. Jacks was very complimentary of Ms. Rensonnet’s parenting. She described her as a calm parent, interceding in her sons’ conduct when necessary, and then explaining and discussing their actions with them. She involves the boys in many activities, both inside and outside the home. The boys are always excited about how they have helped their mother with various things, such as making snacks for school. They have a child-friendly home, focused on fostering children’s activities and displaying the boys’ artwork.

It is a tidy but child-focused home. [ 37 ] Both boys are doing very well. They are progressing in a manner similar to Ms. Jacks’ boys; they are happy and well mannered. [ 38 ] Ms. Jacks has never seen Ms. Rensonnet talk about separation in front of her children. If that subject is under discussion, it always stops if the boys come within hearing distance. [ 39 ] Ms. Jacks talked about what she sees as the benefits of the Francophone school, as compared with the French immersion system.

These benefits include starting English in grade one, rather than waiting until grade three, as is done in French immersion schools. Ms. Jacks’ husband does not speak French but it has not been an issue. She explains things to him where necessary, and while the staff speak mainly French, they find a way to accommodate a parent who does not speak or understand French. She acknowledged, in cross-examination, that she discussed having her children attend the Francophone school with her husband, and he agreed. C. Bara Cihlarova [ 40 ] Ms. Cihlarova resides in Prague, in the Czech Republic.

She is 23 years old. [ 41 ] She originally came to Canada in March 2013 through the initiative of Mr. Uttl. She was hired to work as a nanny and to join the family on their travels. Mr. Uttl agreed to pay for her work, in addition to paying her traveling and room and board expenses. [ 42 ] When she arrived in Cochrane, Ms. Cihlarova was surprised that her help with the children was not required full time. Ms. Rensonnet was working a few hours a day, but mainly when the boys were asleep. Nevertheless, Ms.

Cihlarova spent a lot of time with the boys because she enjoyed doing so. [ 43 ] She described a broad range of activities that she and the children and Ms. Rensonnet enjoyed together: playground activities, joining neighbors, joining the other family who lived as tenants in the residence, hiking and some musical performances. She remembered Mr. Uttl going on only a couple of these outings. He was working much more than Ms. Rensonnet. [ 44 ] During the trip to Europe in the summer of 2013, Ms. Cihlarova traveled with Ms. Rensonnet and the children. They met Mr.

Uttl in Europe where he had already been for some time. While Mr. Uttl was with the children at his father’s residence, he cut Ms. Cihlarova’s time shorter and suggested she go to Prague. In cross-examination, he suggested that she was spending no time with the children, but rather staying in her room to study for an upcoming exam. Ms. Cihlarova responded that she was always available to help, but had been asked by Mr. Uttl to stay away from the boys when they spent time with Mr. Uttl’s father. When the boys were with Ms. Cihlarova, they would naturally speak English; but they did not speak Czech, and Mr.

Uttl’s father did not speak English, so that interfered with their time together. [ 45 ] Because the parties were separating while in Europe that summer, Ms. Cihlarova was unable to return to Canada, although she wanted to. Mr. Uttl had initially told her that she did not need a work permit; however, because of a warning given to her by Mr. Uttl or his brother, she was now concerned that she could be reported for being in Canada unlawfully if she returned without a work permit.

[ 46 ] Ms. Cihlarova eventually returned to Canada from March 2014 through to January 10, 2015. During this time she lived in Calgary with Ms. Rensonnet and the children. She returned because she was friends with Ms. Rensonnet and missed the children. She came to work as a nanny in their large house. She described it as neat and clean, but very child-centered. [ 47 ] Ms. Cihlarova explained that the children had looked stressed around the time of the initial separation in Europe. Even in March 2014, they seemed stressed and upset about the separation.

They were unhappy and uncomfortable when they had to go for visits with Mr. Uttl. [ 48 ] When this occurred, Ms. Rensonnet would try to assure the children that they would be fine and would have fun with their dad. She would refer to activities like camping that they would be doing, and assure them that everything would be fine. [ 49 ] Ms. Cihlarova has never heard Ms. Rensonnet say anything negative about Mr. Uttl in the presence of the boys. To the contrary, she is often complimentary. On one camping trip, Max was trying to complete a difficult task, and Ms.

Rensonnet made a comment to the effect “oh, you are just like your dad – your dad is very good at these types of things.” [ 50 ] Ms. Cihlarova described one incident around the end of March 2014 when the youngest son did not want to go with Mr. Uttl. Ms. Rensonnet carried him to Mr. Uttl’s car, trying to calm him and assure him that he would be fine with his dad. Ms. Cihlarova stated that Mr. Uttl did not get out of the car or make any attempt to comfort his son. He did not encourage him that things would be fine or tell him what they would be doing. Ms.

Cihlarova thought that as a father, he should have attempted to comfort his son. [ 51 ] Ms. Cihlarova said there was much improvement in exchanges between the parties by January 2015, when she returned to Prague. By this time, the boys would watch for Mr. Uttl when they knew he was coming, and were waiting for him. [ 52 ] She spent time summarizing the activities that she, Ms. Rensonnet and the boys did together, including playground visits, visits to Fish Creek Park, boating, skating, skiing, musical theatre, and bike rides. [ 53 ] She described Ms. Rensonnet as a very patient parent.

She allows the boys to do tasks like preparing their own snacks and meals, and is patient with them as they learn. She tries to give them choices on what to do, and when they disagree, helps them to find a solution. She is not the type of parent who gives orders and asks them to obey. [ 54 ] Ms. Cihlarova returned to Calgary for a vacation in June and July 2015 as a vacation. She once again stayed with Ms.

Rensonnet and the boys. [ 55 ] She was able to describe very well the individual characteristics of each child, including their personalities, the things they liked to do, and some of the challenges she faced with each of them. She reviewed some photographs of activities, many of which she took or was involved in, and described what was occurring. [ 56 ] It was evident throughout Ms. Cihlarova’s testimony, particularly when she spoke about the boys and looked at the photographs, that she loves them deeply. It was clear in the way some topics and photographs lit up her face.

She did not say anything about these feelings, but they could not have been more apparent. [ 57 ] She showed no hostility to Mr. Uttl, even though his cross-examination was at times very accusatory and even sarcastic. Just as in direct-examination, her answers remained fully responsive, balanced, forthright and confident, although English is not her first language. D. Andrew Johnson [ 58 ] Mr. Johnson is a professional engineer. He lives in St. Albert, Alberta. [ 59 ] He met Ms. Rensonnet through her sister. He arranged to hire her in 2005. They were both working for Suncor on a large Fort McMurray project. Ms.

Rensonnet reported directly to Mr. Johnson, and he picked her up on the way to work. They usually saw each other 10 out of every 14 days. [ 60 ] She did her work well and on time, and generally got along with everyone. She continued working on the project after Mr. Johnson left. [ 61 ] He has also joined her in some of her outdoor activities: skiing, paddling, and so forth. [ 62 ] He met Mr. Uttl through Ms. Rensonnet. Mr. Uttl rented an industrial condominium Mr. Johnson owned in Canmore. Mr. Uttl paid the utilities, taxes and condominium fees. The value of the rental was about $1,350 per month. Mr.

Johnson was supposed to receive shares in a corporate venture instead of rent. However, he received no compensation, either in rent or shares. [ 63 ] He described one of Mr. Uttl’s projects as the development of a heart monitor that can connect to Wi-Fi. He saw some equipment he owned including a milling machine and a CNC lathe at the Cochrane House. E. Merritt Penhall [ 64 ] Mr. Penhall, who is now retired, owns the house where Ms. Rensonnet and the boys are currently tenants. He describes himself as a friend as well as a landlord. [ 65 ] He drives by regularly and sometimes drops in to check on things.

His visits are usually anywhere from five to thirty minutes in length. He sees the children often, and they are excited to show him what they are making and tell him about what they are doing. They sometimes help him with jobs like putting in new sod. They hug him when he leaves. He describes them as content, happy, polite,

welcoming boys. [ 66 ] Mr. Penhall raised his children in the same house. He says the location is very good: there are many parks in the area, including Fish Creek Park, and a nearby community centre. It is a good, quiet and safe neighborhood. [ 67 ] About six months after Ms. Rensonnet moved in, they reached a verbal agreement pursuant to which she will be able to purchase the house from Mr. Penhall when difficulties with her previous home are resolved. F. Cory Clifton [ 68 ] Mr. Clifton is twenty years old. He has two children, aged about one and three.

He, his former spouse and their children became tenants of part of the Cochrane House in the summer of 2013. Although Mr. Uttl suggested that they were only tenants of Ms. Rensonnet, Mr. Clifton pointed out he signed the lease with both Ms. Rensonnet’s and Mr. Uttl’s names on it. [ 69 ] Mr. Clifton and his former spouse, together with their children, quickly became friends with Ms. Rensonnet, her sons, and Ms. Cihlarova. The children were together at least four to five hours each day, especially in the summer.

They played indoors, outdoors in the large yard, and were continually involved in various activities and crafts. Ms. Rensonnet was an active, encouraging parent with these activities; Ms. Cihlarova was very good with all of the children, who loved to be with her. She would often look after the kids when Ms. Rensonnet was working in the kitchen. [ 70 ] After the separation, Mr. Clifton still saw Ms. Rensonnet and her children when they came over for exchanges. [ 71 ] By way of email dated November 1, 2013, Ms. Rensonnet advised Mr.

Clifton that his previous six-month lease was being extended on a month-to-month basis. She asked him to continue to pay her the rent, and to forward $200 per month to Mr. Uttl for utilities, as they were in his name. [ 72 ] Mr. Clifton testified that he offered Mr. Uttl the utilities payments, but he refused them. Mr. Uttl suggested that he had told Mr. Clifton to use Interac, but Mr. Clifton denied that. [ 73 ] Mr. Uttl told Mr. Clifton that he would turn off the utilities. Mr. Clifton thus felt obliged to move out, as it was the middle of the winter and he had young children. He left in March 2014. G.

Megan James [ 74 ] Ms. James has a daughter who attends the Francophone school in the same year as one of Ms. Rensonnet and Mr. Uttl’s boys. She testified that her daughter is a good friend of both children. She commented that the two boys are outgoing and well adjusted. There is no conflict between them and other children. As far as she can see, they are not in need of counselling. [ 75 ] Ms. James has become good friends with Ms. Rensonnet. They see each other at the school, have play dates together at their respective houses, and see each other at birthday parties and other school activities. [ 76 ] Ms.

James spoke about the types of things Ms. Rensonnet does with the children: biking, trampoline, toys, parks, swimming lessons, and attendance at Calgary Philharmonic concerts. Her approach to parenting is to be calm and respectful with her children. [ 77 ] Ms. James enrolled her daughter in the Francophone school because she and her husband are French speakers and want their daughter to speak French as well. They know from experience that bilingual people generally attain better positions, higher salaries and more employment opportunities. H. Jan Uttl 1. Personal Background [ 78 ] Mr.

Uttl was born in 1960 in what is now the Czech Republic. His family was poor by today’s standards, but his father nevertheless took him, his brother, and a friend of theirs on a number of long outdoor excursions, such as bike trips, which made them the envy of “richer” peers. Mr. Uttl said that he now has two boys, and “big boots” to fill. [ 79 ] He is well educated: a college diploma in automation and control systems (1979), and a Masters in Science and Engineering in computer sciences and electrical engineering (1984), both from Czech institutions.

He has had a variety of jobs, including software developer, project manager, research engineer and instructor at SAIT Polytechnic (both before his relationship with Ms. Rensonnet and currently). [ 80 ] Most of Mr. Uttl’s employment history is in Canada. He arrived in Toronto in 1985 and was joined there by his brother Bob in 1986. They often traveled to the Rocky Mountains, and both of them eventually moved to Alberta. [ 81 ] Initially Mr. Uttl lived near Edmonton, where he had a common law relationship with Mirka Smidova, who had a young girl from another relationship. Mr.

Uttl later moved to Cochrane around 1995 where he met Susan Mulholland. They became common law partners until the relationship ended in 2006. 2. Relationship with Anne Rensonnet [ 82 ] Mr. Uttl and Ms. Rensonnet met in late 2008 while hiking in the Rocky Mountains. It seemed to be a good match: both

worked part time from home as consultants; both loved the outdoors and traveling; and both wanted to have children. [ 83 ] Ms. Rensonnet moved into Mr. Uttl’s Canmore house in January 2009. Their informal financial arrangement was that Mr. Uttl would look after the costs of shelter, including all housing costs, taxes and services. Ms. Rensonnet provided all the food. Mr. Uttl also took care of both parties’ vehicles, as he is good with automobile repairs. [ 84 ] In 2012, the parties began to contemplate a separation. However, while Mr. Uttl was away on an extended trip to Europe, Ms.

Rensonnet had a miscarriage with what they hoped would be their third child. They stayed together until 2013, when Mr. Uttl received Ms. Rensonnet’s July 4 email indicating that she wished to separate. [ 85 ] As mentioned above, Ms. Rensonnet arranged for her sister to move her and the children’s possessions out of the Cochrane House while she and Mr. Uttl were still in Europe. [ 86 ] Mr. Uttl returned to Calgary just before midnight on August 29, 2013. When he arrived home, a panel truck was parked outside the home with the license plate removed, and the lights in the house were on.

He called the police, who confirmed that Veronique Rensonnet was in the home. When Mr. Uttl only went inside once he was informed by police that she had left. [ 87 ] He was upset that most of his clothes and most of the children’s possessions, including toys, had been taken. His office had been broken in to as well. Veronique had apparently needed to remove a printer, and accidentally disconnected a server. 3. Parenting before Separation [ 88 ] Mr. Uttl testified that by late 2012, after the parties had put off their separation at least temporarily, Mr. Uttl and Ms.

Rensonnet equally shared parenting responsibilities. On October 30, 2012, Ms. Rensonnet sent a group email to a number of friends. She reported that “upon his return, Jan insisted on his 50% as he doesn’t want me to hold him to account later. So far he took the kids for 3 or 4 days at a time and essentially took them on a trip”. On November 7, 2012, she again wrote to a number of friends, indicating that Jan “seems pretty happy to keep the current arrangement of taking care of the kids 3 or 4 days at a time and then switch to me ....

As expected taking care of them for a few days at a time means he is much more involved in their daily routine and is getting to know, anticipate and meet their needs. It feels less like it’s ‘my job.’ ’’ [ 89 ] Mr. Rensonnet wrote another group email on March 14, 2013, reporting that the next day started her 3 days “for me” while dad spends time with his kids. Finally, on July 28, 2013 when both parties were in Europe, Ms. Rensonnet wrote to a friend saying, in part: Just barely started the conversation on what happens when we get back to Canada. He is going for 50%....

I can accept 50/50, but not if it means he’s farming the kids off to a nanny and not actually spending any more time with them than as it was. ... now if he actually spends more time with them this way, then all the better for him and the kids. 4. Parenting after Separation [ 90 ] Shortly after his return to Calgary in August 2012, Mr. Uttl received an email from Ms. Rensonnet’s lawyer that proposed a parenting plan. Mr. Uttl responded with his disagreement. In his view it was very different from what the parties had discussed on earlier occasions.

Around the end of September, he was served with the ex parte order. [ 91 ] After separation, Mr. Uttl continued to live in the Cochrane House until he was forced to leave because the parties could not resolve the disputes over tenants, rent and utilities. He moved temporarily to a basement in Airdrie. Ms. Rensonnet expressed complaints about whether his unit was approved for a basement residence. After approximately six weeks, Mr. Uttl moved to his current residence in northwest Calgary, close to SAIT. It has three bedrooms, a large living room, and a large dining area in the kitchen.

He built child- sized tables for his boys and his niece to play on, giving them each “offices” in the dining area. Mr. Uttl has friends and relatives nearby, including his brother Bob and his family. He and his sons also have friends in the Scenic Acres, Tuscany and Bowness areas of northwest Calgary. [ 92 ] Mr. Uttl and the children have received much support from their friends and relatives. In addition, they spend much time with them doing various activities, including trips out of the city. [ 93 ] Mr. Uttl has care of the children every second weekend and every second Thursday.

He finds that he does not need childcare for the children during his parenting time, nor does he think this would be necessary if he and Ms. Rensonnet had equal parenting time. His brother Bob and his family, Ms. Smidova, who has known the children all their lives, and other friends are available to look after them. [ 94 ] Mr. Uttl disagrees with Ms. Rensonnet’s suggestion that the boys prefer shorter amounts of time with him. He testified that he has never experienced the reaction described by Ms. Rensonnet and Ms. Cihlarova.

Rather he stated that the boys are quite happy with him once they have been in the car for a few minutes, and have often expressed a wish for more time with him and the friends and cousins they see while with him. [ 95 ] Most of the time Mr. Uttl spends with his children involves outdoor trips and activities. When the weather is good, they often camp, go to the mountains, hike and bike ride. During the winter, they spend much time skiing. Mr. Uttl enjoys teaching children and he considers it very important that he teach them skills he knows well. These include skiing and other forms of outdoor activity.

He has taught many of his friends’ children the same activities and believes he is a skilled teacher. [ 96 ] Mr. Uttl encourages the boys to participate in a wide range of outdoor activities. He ensures that they are properly protected, and teaches them how to stay safe. In his words, parents should “world-proof the children, rather than child-proof the world.”

5. Child Support [ 97 ] Mr. Uttl began paying child support to Ms. Rensonnet in July 2014. He currently pays $238 per month, based on a guideline income of $16,000 per year. [ 98 ] He testified that he actually pays more than the stated amount, because when he takes charge of the boys, they do not come appropriately dressed for a weekend. He has therefore bought footwear, clothing (including down coats), skis, ski boots, helmets, bikes, and many other things. In addition, he purchases ski, park and museum or activity centre passes. 6. Proposed Parenting Plan [ 99 ] Mr. Uttl believes that he and Ms.

Rensonnet should share parenting time 50/50. The children could attend a school close to where he lives; there are English schools in the area, as well as English with German or Spanish options. He has read the opinions of experts who express the view that equal parenting time is the best arrangement. [ 100 ] He would continue his work at SAIT, which gives him flexibility. In addition, the children are very happy to spend time with Bob Uttl, who picks them up regularly; with Ms. Smidova; or at the home of Leslie Tuck, one of Mr.

Uttl’s friends. [ 101 ] He points out that all parents have their own skills and strengths. In the case of these parties, each would model differently to the children, which would be beneficial to the children. He acknowledges that he and Ms. Rensonnet have unique skills sets that will benefit both of their children. Mr. Uttl denied that his relationship with Ms. Rensonnet regarding the children is “high conflict.” The appearance of conflict has been manufactured, he said, for the courts, and stems from two years of litigation prompted by Ms. Rensonnet’s application for the ex parte order. [ 102 ] Mr.

Uttl believes that with an alternating

schedule (whether week on, week off, or 3/4/4/3 days) each parent could determine what the children will do during their time. A regular

schedule will allow them to plan separate groups of activities. When asked what would happen if the children want to participate in an activity during the other parent’s time, Mr. Uttl said that “we’ll negotiate,” and believed it could be “worked out.” 7. Parenting Conflicts [ 103 ] Mr. Uttl’s testimony covered many points on which the parties have had disagreements – sometimes relatively short term, other times more protracted. It would be futile to recite these in detail, or to attempt to cover the arguments each side put forward. A brief

summary of areas of conflict is important, however, as it gives context to much of the evidence. [ 104 ] There was considerable conflict and hostility over Mr. Uttl’s changes of residence. First, the parties could not agree on what to do with the Cochrane House. Ms. Rensonnet then raised concerns about Mr. Uttl’s accommodation in Airdrie, which led him to move to Calgary. Following that move he warned his new landlord that Ms. Rensonnet would likely be making inquiries about the suitability of that space. She did make such inquiries. [ 105 ] On one occasion, Mr.

Uttl was returning from a trip to Hawaii and his flight was delayed. The delay affected the time he planned to pick up the children, so he emailed Ms. Rensonnet that his brother Bob would pick them up. She replied that she would not release the children to anyone other than Mr. Uttl, and had her lawyer send a letter to that effect. [ 106 ] Notwithstanding this warning, Mr. Uttl’s brother attended at the house, where Ms. Rensonnet refused to turn the children over to him. Ms. Rensonnet was warned that the police would be contacted. [ 107 ] The original ex parte order prohibited Mr.

Uttl from removing the boys from Alberta. He requested a modification so he could travel to British Columbia to visit his brother Bob, who visited a cottage with his family in that province. Ultimately the parties achieved a consent order, but only after a lengthy exchange of emails. The parties could not restrict themselves to the one issue, but brought many other disagreements into the conversation. Mr. Uttl’s emails tended to be insulting and bitter in tone, blaming most of their troubles on the ex parte order. Unfortunately this tone has been typical of his email communication.

He testified that he considered negotiations with Ms. Rensonnet to always be difficult. [ 108 ] The parties have had disagreements over proposed changes to the time of parenting, whether it be a change in hours on a day, or changes to accommodate the childrens’ activities. [ 109 ] Mr. Uttl complains about the way the children are clothed and prepared for their visits with him. He says he is criticized for not returning them adequately cleaned. [ 110 ] The parties have had very different approaches to preparing the children for the exchanges. Ms.

Rensonnet would take 10-15 minutes to complete the exchange for approximately the first year following the separation. The children were often not quite ready and she would spend too much time with farewell hugs and kisses. Mr. Uttl believes the exchanges should be very short, brisk and business- like. He based this suggestion on manuals for parents involved in high conflict relationships. [ 111 ] A major area of dispute has been attendance of the children at preschool and now, for the eldest child, in kindergarten. Ms.

Rensonnet registered the boys in a Francophone preschool and then the eldest child in Francophone kindergarten. She did not consult with or give notice to Mr. Uttl. [ 112 ] There have been lengthy exchanges between the parties over school disagreements. Mr. Uttl’s concerns are that he will be unable to take

part in his children’s education because he does not understand French. Ms. Rensonnet believes he is not being reasonable because the school would do its best to accommodate him. Neither party has compromised their position on this dispute.

[ 113 ] When Ms. Rensonnet suggested a

schedule change that would require Mr. Uttl to take the boys to preschool, he objected strenuously. The parties could not even agree on whether the suggested alternate

schedule offered the same parenting time, let alone whether the quality was affected. [ 114 ] In July of this year, Ms. Rensonnet and the children were not home when Mr. Uttl arrived for a pick up. The parties appeared to have different understandings of a court order setting vacation time. When Mr. Uttl arrived and found no one home, he sent Ms. Rensonnet an email while at the front of the house, but did not attempt to call her. He then went to a police station, where a police officer asked for Ms. Rensonnet’s telephone number and called her. She returned to her home with the children shortly thereafter. 8.

The Cochrane House [ 115 ] As discussed, title to the Cochrane House was in the name of Susan Mulholland, Mr. Uttl’s previous common law partner. Mr. Uttl testified that Ms. Rensonnet pushed to buy the residence from Ms. Mulholland because she was concerned that Ms. Mulholland might ask her to leave if something happened to Mr. Uttl. [ 116 ] Mr. Uttl acted as the “middle man”, arranging for the documents to be signed. He said the terms of the transaction were $475,000 in mortgage and cash, although he appears to have simply been referring to what the transfer documents indicate.

He gave no testimony about any obligations either party undertook to the other. [ 117 ] Mr. Uttl testified that the arrangement he had had with Ms. Mulholland was that she shared in expenses. She continued to reside in the house sometime after their relationship ended. He said Ms. Mulholland did not pay “rent” but contributed about $700 per month to expenses. [ 118 ] The space that she occupied varied over time. She had a number of people living with her during her occupancy, including a boyfriend, a husband, and an assisted living room mate she was paid to provide care for. Ms.

Mulholland’s area had its own bedrooms, kitchen and bathroom. [ 119 ] Ms. Smidova also lived in the Cochrane House for a certain period of time. Her daughter and her son-in-law also lived there for a time. [ 120 ] As stated earlier, Mr. Uttl left the Cochrane House in February 2015 during a voluntary foreclosure. He would not agree to terms Ms. Rensonnet had proposed for allowing him to remain and refused to accept payment for utilities from the tenants. 9. Name Change [ 121 ] When Mr. Uttl was questioned about Ms.

Rensonnet’s proposed change of the children’s last name, he would not say how this would be detrimental to the children. He did not express any view on the proper order of the hyphenated names if a change occurred. 10. Mr. Uttl’s Work and Finances [ 122 ] In October, Mr. Uttl participated in leasing an industrial condominium in Canmore, for work to be done on a project with Holter Monitor technology. His role in the project was to design and build the prototype. A number of corporate entities in which Mr.

Uttl had shares were involved, but he was unable to provide specific information. [ 123 ] Most of the funding for the project was advanced by Gerry Gerling. Out of the funding, Mr. Uttl received an annual salary of $24,000 for the years 2011 and 2012. He acknowledged that he also received benefits from various expenditures that were paid by the corporate vehicle through which he worked, Biomea Inc. These benefits included but are not limited to personal use of the condominium in Canmore, which had living space used by Mr. Uttl and Ms. Rensonnet from time to time. [ 124 ] Mr.

Uttl said that in 2013 and 2014 he earned no income, other than what he received from selling some assets, primarily shares and a European cottage. In 2015, his total income was approximately $35,000, his salary for part time teaching at SAIT. He believes he will be able to begin teaching full time in the next year or two, as some faculty members are about to retire. Based on information he obtained from SAIT’s website, he believes that he should make approximately $75,000 per year if he works full time as a SAIT instructor. [ 125 ] He believes that Ms.

Rensonnet reasonably estimated her income as set out in her testimony. [ 126 ] Mr. Uttl was challenged in cross-examination about what assets he has owned since separation, and how he has disposed of them. His evidence on these points was generally vague, as unresponsive as possible, and evasive. [ 127 ] He has not produced all of the documents that would make up the expenses claimed in Biomea’s financial statement.

He suggested that some of the documents must have been stolen when Veronique Rensonnet was moving things out of the Cochrane House. [ 128 ] He was unable to give the exact shareholdings of the parties involved in the small corporations with whom he was doing business. He acknowledged purchasing a cottage in Austria in August 2011. He said he has no paperwork for either the acquisition or its disposition in 2013 or 2014. [ 129 ] He believes he paid about 80,000 Euros for the cottage.

He used Canadian dollars to purchase the Euros, but would not say how many Canadian dollars he used. [ 130 ] He said he borrowed some of the money from someone else, but he was the sole title owner. After some hesitation, he identified the lender as Jana Kravochvilova, “a friend”. Then, he indicated that she was a part owner, of about a half interest, although not on title.

[ 131 ] When Mr. Uttl left Europe in 2013, he signed a document leaving it with someone to sell, with the price blank. He could not name the person with whom he left the document. He did not have a copy of the document. [ 132 ] He has been advised that the cottage was sold. He said it was sold for about 84,000 Euros. In November 2014, he went to Europe and obtained some paperwork regarding the sale of the cottage, but states that he has none now. [ 133 ] When ordered by the court to contact the lawyer who acted on the transaction to get documents, Mr.

Uttl sent an email to a list of lawyers in the area inquiring whether any of them had documents, claiming not to know who represented him. His inquiries were unsuccessful. [ 134 ] He gave directions for distribution of sale proceeds. He cannot recall what directions he gave, and does not have a copy of the document.

He suggested at one point that the money was consumed in litigation expenses, but could not identify how the money got from Europe to his lawyers. [ 135 ] When asked if he might still have the right to use the cottage, he said he did not know, but perhaps he could ask the person that he dealt with, if he could use it if he wanted to pursue that option in the future. [ 136 ] He produced some, but not all, of his bank statements. There are no bank statements showing payment for any items by debit over the past six months.

He said that he uses cash for virtually everything. [ 137 ] He was also ordered to produce his European bank accounts, or any bank accounts he has had anywhere in the world, for 2014 and 2015. He claimed he did not remember where he had his accounts. He sent an email to a number of institutions asking if they held any accounts (active or dormant) in the name of Jan Uttl.

Not surprisingly, no institutions disclosed information in response. [ 138 ] He said he funds his activities, which include many trips out of the country, as well as his personal expenses and the things he buys for the children, by the proceeds of the sales of his assets, credit card loans, and other loans. 11. Flight Risk [ 139 ] Mr. Uttl strongly denies that there is a risk he would leave the jurisdiction with the children. [ 140 ] He denies that a recent change in Czech citizenship rules would allow him to obtain citizenship and passports for the children, simply by virtue of Mr.

Uttl’s status as a Czech citizen. He refers to his love of the Rocky Mountains, his long-term residence in Cochrane, his work at SAIT, and his circle of friends and relatives as evidence of strong ties to the community. Furthermore, he stated that he would never deprive the children of their mother. I. Dana Cornea [ 141 ] Ms. Cornea is a friend of Mr. Uttl. They met in 2007, when her first son was not quite a year old. [ 142 ] Ms. Cornea and her husband Leslie Tuck both enjoy active, primarily outdoor-oriented recreational activities. These include mountain biking, skiing and family camping. [ 143 ] Ms.

Cornea met Ms. Rensonnet when Ms. Rensonnet began her relationship with Mr. Uttl. She considers Ms. Rensonnet a friend as well. As couples and families, they did a number of activities together. Ms. Cornea has not continued her relationship with Ms. Rensonnet after the separation, but still considers her to be a friend. [ 144 ] Ms. Cornea stated that she and her husband gave all of their clothes from their youngest child, now aged six, to the children of Mr. Uttl and Ms. Rensonnet. [ 145 ] Ms. Cornea speaks highly of the characters of both parties. She described Mr.

Uttl as a kind, generous man, whom she often trusted with her children. She also stated that Ms. Rensonnet was kind and generous, and she much appreciated her approach to parenting. [ 146 ] She said both children seemed to be doing very well and, from her perspective, need no therapy or counselling. She has seen them about four or five times since the parties separated. [ 147 ] She has not observed Mr. Uttl involved in scheduled, organized group activities. J. Stephan Price [ 148 ] Mr. Price is another friend of Mr. Uttl.

They met in spring of 2003, through mutual friends, while backcountry skiing at Rogers Pass. [ 149 ] Mr. Price has two children, aged thirteen and fourteen. Before Mr. Uttl had children, he would involve Mr. Price’s children in whatever they were doing. [ 150 ] Mr. Price met Ms. Rensonnet at the end of 2008, during one of his family’s many Christmas skiing trips. Over the years, he has had a number of conversations with Ms. Rensonnet. The two families did some activities together. He has not had contact with her after the separation. [ 151 ] He has seen Mr. Uttl and the boys about four times since the separation.

The boys seem happy, energetic, very inquisitive, and get along well with each other.

K. Francois Belanger [ 152 ] Mr. Belanger is another friend of Mr. Uttl. They met in 2003 on a ski trip. Mr. Belanger is also an outdoor enthusiast. [ 153 ] He has two children aged seven and nine. Before Mr. Uttl had children, he was very kind, looked after Mr. Belanger’s children on occasion, and helped teach them about backcountry activities. Mr. Uttl has joined Mr. Belanger and his family on a number of backcountry ski trips, hiking trips, and other outdoor day trips. [ 154 ] Mr. Belanger also came to know Ms. Rensonnet. She interacted very well with Mr. Belanger’s children, acting in a kind manner.

He has not had contact with her after the parties separated. [ 155 ] Mr. Belanger has continued to meet several times a year with Mr. Uttl since separation. He sees the children about two times a year. He described them as curious, outgoing, liking to play, and interacting well with other children. [ 156 ] When asked how Mr. Uttl would deal with problems, Mr. Belanger gave as an example an occasion when the children would not eat and Mr. Uttl talked quietly to them about the importance of eating. L. Charlene Belanger [ 157 ] Ms. Belanger is married to Francois Belanger. She met Mr.

Uttl in 2003, while on a multi-day safety awareness course. She was impressed with his expertise and cautious approach to concerns about avalanche risks. [ 158 ] Before Mr. Uttl was in a relationship and had children, Ms. Belanger and her husband would often leave their children in Mr. Uttl’s care during parts of trips together (for example, a cycling trip in Moab). They had implicit trust in him. [ 159 ] Ms. Belanger also said that Ms. Rensonnet was great in the way she interacted with Ms. Belanger’s children.

She did so in a way that was stimulating to them, and often played games with them. [ 160 ] She could not comment on how Mr. Uttl was with scheduled activities, as she has spent time with him only on day trips. When asked how he handles misbehaviour, she described him as very patient. He looks his child in the eye, and talks to him rationally about the subject at issue. He is very patient with children. [ 161 ] She has not seen Ms. Rensonnet since the separation. The relationship with her deteriorated as the tensions grew between the parties. [ 162 ] She sees Mr.

Uttl and his children approximately once every six months. The two sets of children play well together. The children of the parties are wonderful little boys – curious, open, and interacting well with other children. They have grown and matured well. She has no concerns that would require professional attention. M. Kira Watts [ 163 ] Ms. Watts is a single parent of a four year-old son, and a friend of Mr. Uttl. She met him in 2005 on a mountain hiking event. [ 164 ] About one and a half years ago, when she separated from her husband, Mr. Uttl contacted her.

Now they spend time together “officially” with their children. Often, they also go with Bob Uttl and his wife and children. All of these children love to spend time together. [ 165 ] She shares Mr. Uttl’s interest in outdoor activities. Her son really likes Mr. Uttl, and is sad when they separate. [ 166 ] She explained that Mr. Uttl is very creative in developing activities for the children, and encouraging them in new learning experiences, such as building fires and dirt biking. [ 167 ] As an elementary teacher and a former camp counsellor, she has much experience with children. She finds Mr.

Uttl’s boys happy and well adjusted, not in need of any form of therapy. N. Leslie Tuck [ 168 ] Mr. Tuck is married to Ms. Cornea. Mr. Tuck is a small business owner, operating a repair shop in the Bowness area of Calgary. [ 169 ] Until May of this year, he had been primarily a stay-at-home dad for about seven years. He sometimes looked after other children in the neighborhood in addition to his own. [ 170 ] Like Mr. Uttl, whom he met in spring 2007, his favourite activities involve the outdoors. He travels with his trailer, enjoys mountain biking and skiing. [ 171 ] Mr.

Uttl has always been very caring with the Tuck children. He looks out for them, and is good at helping them to learn and grow. Ms. Rensonnet, when Mr. Tuck came to know her in 2009, was also good with their children. [ 172 ] Mr. Tuck’s wife’s sister has children, and they get “tons” of clothes and toys passed on to them; and they, in turn, pass on clothes and toys to Mr. Uttl’s sons.

[ 173 ] He has not noticed a significant change in Mr. Uttl’s boys since separation. They seem happy and content, and play well together. He acknowledged that he sees them less now than before – he last saw Mr. Uttl’s boys in spring 2015. O. Nicole Price [ 174 ] Ms. Price’s husband is Stephen Price. Ms. Price is a mother of two daughters, and also loves outdoor activities. It was in that connection that she met Ms. Rensonnet and Mr. Uttl. She volunteered that she also was previously married and divorced. [ 175 ] She first met Mr. Uttl on a skiing trip in 2003.

Over the years, they have acquired many mutual friends. She described them as having a very large community of friendships, most dating back to the 1990s. [ 176 ] Ms. Price and her husband always travel with their children. They do many road trips. [ 177 ] Mr. Uttl was one of the few friends they had who, as a bachelor, was happy to go with families on trips. He would often look after their daughters so that Ms. Price and her husband could go on a hike or bike ride together.

He taught them many useful things during those times. [ 178 ] She was referred to an email she wrote on September 16, 2013, commenting on the effect of the separation and Veronique Rensonnet’s moving things out of the house. In the email, she stated that Mr. Uttl usually lives in a “relatively chaotic state at the best of times.” She explained that their lives are full of activities, and do not involve any form of schedule. III Assessment of Evidence [ 179 ] My findings on the evidence and reasons therefore will be given later in this judgment, as they relate to the issues to be decided.

The following is an overview of my assessment of the witnesses who testified at trial. [ 180 ] Ms. Rensonnet called six witnesses other than herself; Mr. Uttl, seven witnesses in addition to himself. None were relatives. Rather, they were friends, one with a former business connection. [ 181 ] All were honest and reliable witnesses on the matters they addressed. It was apparent they knew what would be asked. They were, however, genuine in their answers.

The demeanor, of course, varied over this large number of witnesses, but always demonstrated the answering of simple questions on things about which they could speak by first-hand knowledge. Their evidence was credible and reliable, and helpful on many of the matters at issue. [ 182 ] The parties’ testimony requires more careful evaluation. They are disputing issues that concern the most important things in their lives, in which are involved their emotions and feelings of self-worth. It is not surprising that their testimony must be viewed through a critical lens. [ 183 ] Ms.

Rensonnet’s testimony was well organized, supported by many exhibits. She has been preparing her case since the separation – initially with counsel representing her, now with the assistance of counsel not on the record. She is an intelligent, well- organized person who, I am sure, has also done much without counsel’s assistance. [ 184 ] Her demeanor was earnest, respectful and responsive to questions. In my view, her testimony was truthful throughout. She is unlikely, in my view, to deliberately mislead or deceive the court. [ 185 ] That does not make all of her testimony reliable.

Her perceptions, apprehensions and rationalizations make her unreliable on some matters of fact, and necessitate careful scrutiny of her views of the children’s best interests. [ 186 ] Much of the current legal setting was cast by the ex-parte order, which Mr. Uttl unsuccessfully attempted to set aside. That order is also the root of many disagreements between the parties. Ms. Rensonnet seeks to justify the apprehensions on which she relied to obtain the order. She has made the most significant decisions for the children, and thus feels the need to justify them when they are challenged.

Much of her evidence is a subtle form of argument. [ 187 ] Ms. Rensonnet wants to be in control of her children’s lives, because she considers it in their best interests. She does not say that, and maybe does not think it. But it is evident in the facts. The decisions about where the children would live, where they would go to school, and their time with each parent were made by her – unilaterally and pre-emptively. [ 188 ] Much of her evidence, directly or indirectly, goes to why she acted as she did, and why her decisions were in the children’s best interest.

And she gives examples of areas of where she has tried to “co-parent,” as she describes her efforts. [ 189 ] Mr. Uttl was also an intelligent, articulate witness. Like Ms. Rensonnet, a considerable part of his evidence is coloured by his own perceptions and rationalizations and must be assessed carefully in light of those. His testimony, exhibits and submissions heavily focus on resentment of Ms. Rensonnet obtaining the order and his inability to set it aside. His reaction to many of Ms.

Rensonnet’s actions and proposals, illustrated in numerous email exchanges, has been to question her motives and blame disagreements on her “pre- emptive strike” or “Molotov cocktail.” For these reasons, I must be careful when considering his testimony. As with Ms. Rensonnet, his perspective often clouds reality. [ 190 ] Unfortunately, as will become plain, I also doubt Mr. Uttl’s honesty regarding his financial affairs. I find that he has worked at concealing his assets, income and spending patterns. When questioned about these matters, his testimony became evasive, contradictory and incredible.

His testimony about these matters is, in my view, unworthy of belief on many points.

IV Parenting A. Current Regime [191] An ex parte order was granted on September 26, 2013, varied by a consent order pronounced on July 25, 2014. Pursuant tothese orders, Ms. Rensonnet has interim day-to-day care and control of the children. Mr. Uttl has access on alternate weekends from 10a.m. Friday morning to 8 a.m. Monday morning, and Thursdays during the day on the off week. [192] There was also an order granted on June 16, 2015 which, among other things, set out the parenting

schedule for July and August2015. B. Positions [193] Ms. Rensonnet submits that the children should be in her care, with the exception of alternate weekends and every Wednesdayovernight. She also proposes detailed arrangements, alternating between odd and even years, for Christmas, Easter and spring breaks.Her summer holidays proposal involves a maximum of ten consecutive days with Mr. Uttl until 2018, and then a gradual annual increaseof the maximum time until each parent has the children for thirty consecutive-day periods. [194] Mr. Uttl proposes equal parenting time, on either a fourteen day (two, two, five and five)

schedule or alternating full weeks. C. Legal Principles [195] The Family Law Act, S.A. 2003, c. F-4.5, governs parenting of children of common law spouses. In most cases (as here), theanalysis is the same as for children of a marriage governed by the Divorce Act, R.S.C. 1985 c. 3 (2nd Supp).

The Family Law Act sets outlegal principles in more detail, but they are consistent with the principles set out by the courts under the more general provisions of theDivorce Act. [196] In making parenting orders under sections 32-34 of the Family Law Act, “the court shall take into consideration only the bestinterests of the child”: section 18 (1).

To determine those best interests, the court must have regard to a wide range of factors, includingneed for stability, history of care for the child, cultural, linguistic, religious and spiritual upbringing and heritage, nature of therelationship between the child and others, the ability and willingness of each parent to communicate and cooperate on issues affecting thechild and the benefit to the child of developing and maintaining meaningful relationships with each parent: section 18 (2). [197] Parenting orders may cover “the powers, responsibilities and entitlements of guardianship,” including “an allocation ofparenting time”: section 32 (2).

Thus, orders encompass the categories traditionally described as custody, including decision-makingauthority on major areas such as health, education, religion and welfare, as well as day-to-day residence and care responsibilities. [198] The dispute in this case concerns both decision-making authority, or custody, and the allocation of parenting time. Mr. Uttlproposes joint custody, with resort to the court if the parties are unable to agree. Ms. Rensonnet’s proposal also contemplates jointcustody, with detailed dispute resolution procedures ultimately leading to a binding decision by a parenting coordinator.

However, sherecognizes that binding arbitration cannot be ordered where the parties do not agree, and thus argues that she should be granted soledecision-making authority on most issues. [199] Mr. Uttl proposes that parenting time be shared equally between the parties, while Ms. Rensonnet submits that she should haveprimary care with limited, specified access to Mr. Uttl. He submits that the court must not rely on any presumptions, such as maintainingthe status quo under which primary care and responsibility is with Ms.

Rensonnet: Cavanaugh v Balkaron, 2008 ABCA 423, [2008] A.J.No. 1393; and Botticelli v Botticelli, 2009 ABQB 556, [2009] A.W.L.D. 4199. He also relies upon the “maximum contact principle,”where the court strives to maximize the time children spend with each parent and indicating that shared parenting is the preferredarrangement: Botticelli v Botticelli; and Gordon v Towell, 2010 ABQB 396, 29 Alta. L.R. (5th) 141. [200] Mr. Uttl is correct in emphasizing that, in effect, the best interests of a child is the only consideration.

His argument againstpresumptions is, however, inconsistent to the extent that he uses the maximum contact principle itself as a presumption. [201] Relying on the best interests of the child as the only consideration does not answer many questions.

There are many factors thatinform what is in the best interests of a child, as the Family Law Act, the Divorce Act and the cases decided thereunder demonstrate.These factors often do not point in the same direction. [202] Further, the maximum contact principle has been given particular significance in divorce proceedings because, as the SupremeCourt of Canada has pointed out, its codification in section 16 (10) of the Divorce Act “stands as the only specific factor whichParliament has seen fit to single out as being something which the judge must consider” in determining a child’s best interests: Young vYoung, (SCC), [1993] 4 S.C.R. 3, [1993] S.C.J.

No. 112, para 204. That specific

section does not apply in this case,although it is well established that maximum contact with each parent is an important factor. As with every other factor, it must give wayto the overriding best interests consideration. Section 16 (10) makes this clear, providing that the court shall give effect “to the principlethat a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.” [203] Thus, as with the status quo, there is no presumption in favour of equal parenting time.

In fact, the cases caution against equalparenting in high conflict relationships. Fraser C.J.A. held that “as a general proposition, joint custody and shared parenting arrangementsought not to be ordered where the parents are in substantial conflict with each other,” and joint custody requires a sincere and genuinewillingness by both parents to work together to ensure the success of the arrangement: Richter v Richter, 2005 ABCA 165, 371 A.R. 1,para 11. Other provinces have taken the same approach: Vollmershausen v Vollmershausen, 2013 ONSC 4273, 229 A.C.W.S. (3d) 1069,

paras 9 and 15 to 25; Stewart v Stewart, (BC CA), [1994] B.C.J. No. 481, 2 R.F.L. (4th) 53; and Poirier v Poirier,2011 SKQB 298, 381 Sask.

R. 111, paras 47 to 48. [204] The authorities that caution against an order of joint custody or shared parenting where the parents cannot cooperate are, ineffect, applying principles identified in section 18 (2) of the Family Law Act, such as sections 18 (2)(a), (b) (ii), (vii) (B), and (viii) (B). [205] Where shared parenting and joint custody are not indicated because of the parents’ demonstrated inability to workcooperatively, without conflict, the court must determine who should have primary care and decision-making responsibility.

Thestatutory factors must inform that determination, some having more bearing than others in any particular case. For example, the factorsrelating to family violence have no application here. [206] One factor is the child’s need for stability under section 18 (2)(b)(i), which is also implied in the need to consider the history ofcare for the child under section 18 (2)(b)(ii).

The cases recognize stability and the status quo, to the extent it provides a positiveenvironment, as an important consideration: Mcinulty v Dacyshyn, 2013 ABQB 538, [2013] A.W.L.D. 5030, para 13; S. (V.) v S. (G.),2011 ABQB 818, [2012] A.W.L.D. 3828, paras 17 to 20. [207] Having regard to the existing arrangement, particularly when it has been in place for some time, is not to defer to a presumption.Rather, “the status quo is a factor to be considered when determining the best interests of the child”: Ackerman v Ackerman, 2014 SKCA86, [2014] 10 W.W.R. 429, para 32. [208] There are other factors to be considered.

An important one is the ability and willingness of a parent to communicate andcooperate on issues affecting the child: section 18 (2)(b)(viii)(B). Both parties have fallen short on this consideration. That is certainlythe case with Ms. Rensonnet having made a number of unilateral, pre-emptive decisions – but Mr.

Uttl’s hostility, resentment andargumentative communications are also concerns. [209] Thus, as the statute and cases emphasize, the court must be careful to consider all relevant factors, but not fall into the trap ofmerely applying presumptions without analysis of all the factors going to the best interests test in each case. The sole consideration,ultimately, remains the best interests of the child. D. Shared Parenting or Primary Care [210] Ms. Rensonnet and Mr. Uttl are both excellent parents. That comes through strongly from all the testimony and exhibits,including many engaging photographs.

Furthermore, each of them commends the quality of the other as a parent. It is one of the ironiesand tragedies of this case that despite their mutual regard as parents they are unable to work together. [211] Two and a half years of separation have demonstrated they can agree on very little, other than their mutual respect. Despite Mr.Uttl’s argument to the contrary, this is a high conflict separation. It is not violent, and is often civilized in appearance. Nevertheless, theparties come to deadlock on even the simplest issues, such as adding “Rensonnet” to the children’s last name.

They have been unable toshare passes to parks and attractions. [212] Much of this may have been caused by the ex parte order, which Mr. Uttl characterizes as completely unjustified. There arevalid questions about whether Ms. Rensonnet had good reasons to resort to this remedy. There are also concerns, however, about howMr. Uttl has responded. [213] Even now, in response to questions during final submissions about how shared parenting would work, Mr. Uttl suggested thatMs. Rensonnet would be fine once “the order” was over.

But his plan contemplates continued use of the court as a referee when theparties are unable to agree. [214] As outlined above, the authorities hold that there should be no shared parenting and joint custody where the parties are in a highconflict relationship over parenting issues. I have found this relationship to be high conflict in nature. It would be unfounded speculationto think that might change after final judgment, and improper to take that gamble at the risk of the children. [215] Thus, one parent must have primary care and decision-making authority.

It is unfortunate that a choice must be made betweentwo excellent parents. However, it is necessary to reduce areas of conflict and exposure of the children to that conflict. [216] I conclude that primary care must be with Ms. Rensonnet. She has demonstrated excellent parenting skills over a sustainedperiod. She has established a beneficial rhythm of life with a balance of structured, unstructured, educational and recreational activities.The children are thriving in her care. [217] Of course, to Mr. Uttl’s chagrin, this partly recognizes the status quo, which Ms.

Rensonnet established unilaterally (startingwith the ex parte order). As indicated above, the status quo is a factor. But in finding Ms. Rensonnet should continue as the parent withprimary care, I am not simply taking into account stability. The evidence shows that the children are doing well under Ms. Rensonnet’scare. There is no evidence to favour a change. The only reason to do so would be to punish Ms. Rensonnet for unilateral decisions, or toequalize parenting time Mr. Uttl has “lost.” Neither reason puts the best interests of the children at the forefront.

I would have tospeculate that their best interests favour changing their lives by putting them into Mr. Uttl’s care, when no evidence supports thatconclusion. [218] As the children continue to grow, they will become engaged in more activities. Mr. Uttl’s proposal is not realistic, and not intheir best interest. His suggestion that the children can be put in separate activities for the time they spend with each parent would lead toparallel, compartmentalized lives. Further, it would severely restrict the type of activities in which they could engage. [219] None of this means that Mr. Uttl is an unfit parent.

The evidence is to the contrary. But there are factors that reinforce my viewthat it would not be in the children’s best interests to be transferred to his primary care.

[ 220 ] Because of his more scheduled work commitments, his parenting would involve less consistency. He relies on others to assist when he has other commitments – such as his brother, sister-in-law, and former common law spouse. There is no evidence to suggest these individuals do not provide good care, but it is less uniform and consistent than what Ms. Rensonnet is able to provide with her flexible, home-based consulting work. [ 221 ] Mr. Uttl’s proposal involves uncertainties and concerns regarding schooling.

In response to questions during his submissions, he said if the court directed that the children continue to attend the Francophone school, he will transport them as required. It is evident, however, that he would not support that educational program. Further, he has no clear plan for a different program, although he mentioned some possibilities. All that is clear is that he opposes Francophone schooling. [ 222 ] Changing primary parenting to Mr. Uttl would involve a significant move for the children, to another area of the city. Mr.

Uttl has not confirmed where that would be, as it would depend on where they would attend school. Thus, it cannot be said to be in the best interests of the children, particularly having regard to the fact that they are thriving in their current environment. [ 223 ] These children are in the fortunate position that either parent could provide well for them. Nevertheless, it must be determined in whose primary care their best interests would be served, and I conclude that to be Ms.

Rensonnet’s. [ 224 ] She will also have sole decision-making authority regarding the upbringing of the children, except where I indicate otherwise. As section 32 (4) of the Family Law Act contemplates, Mr. Uttl remains entitled to make inquiries and receive information about significant matters that arise in connection with Ms. Rensonnet’s exercise of her powers and responsibilities. Further, as difficult as it may be, Ms. Rensonnet must in good faith consult with Mr. Uttl within a reasonable time before making significant decisions regarding the children. [ 225 ] Ms.

Rensonnet advised the court that she is willing to defer to Mr. Uttl on issues related to the religious upbringing of the children, because he was raised in a church-going family while she is not religious. Thus, matters of the children’s religion will be the sole responsibility of Mr. Uttl, and Ms. Rensonnet must act reasonably to accommodate any preferences Mr. Uttl expresses. [ 226 ] Because it has been a source of significant conflict, I will address separately the issue of the children’s schooling later in these reasons. E. Parenting

Schedule [ 227 ] The

schedule resulting from my decision will largely be based on Ms. Rensonnet’s proposal, which addresses the needs where there i

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