Seitz v Seitz, 2017 ABQB 146

Court of Queen’s Bench of Alberta Citation: Seitz v Seitz, 2017 ABQB 146 Date: 20170303 Docket: 4806 017036 Registry: Lethbridge Between: Lana Rayelle Seitz Plaintiff - and - Devon Elwood Seitz Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.J. Hall _______________________________________________________ [ 1 ] The parties appeared before me in a special chambers application. The issues in the application are as follows: 1. Who should be the primary parent for the two youngest children of the marriage? 2.

Is the son, Wyatt, who is 20 years old and enrolled at the University of Lethbridge a child of the marriage? 3. Who should pay what amount of child support (section 3 and

section 7) to whom, including a retroactive claim by the mother? 4. Who should pay the costs of a practice note 8 assessment that was performed by Doctor Larry Fong? 5. What costs should be paid, and by whom?

[ 2 ] The parties were married on August 29, 1998 in Vulcan, Alberta, and were divorced on January 11, 2010. [ 3 ] The parties have 3 children being Wyatt now almost 21 years old, Jaxan, now almost 17 years old, and Teagan, approaching 15 years old. [ 4 ] The parties were awarded joint custody of the children in the divorce judgment, with primary care of the children awarded to the wife/mother. The husband/father was granted reasonable and generous access to the children as agreed between the parties. [ 5 ] The divorce judgment sets out

section 3 child support obligations of the father to the mother of $1,652 per month. Child support is directed to continue until each child has attained the age of 18 years, becomes self-supporting, or otherwise ceases to be a “child” under the meaning of the Divorce Act of Canada , or by further order of this Court, whichever shall first occur, provided that maintenance for each such child shall continue beyond the age of 18 years and until the age of 21 years, so long as each child continues living with the mother, is attending school or university, and is attaining passing grades.

The parties are required by the divorce judgment to exchange income tax returns and notices of assessment on or before June 30 of each year, so that adjustments can be made with regard to the amount of child support to be paid. [ 6 ] The parties established a routine whereby the father generally exercised his access to the children on alternating weekends, as well as sharing holiday time. [ 7 ] The mother and the three children reside together in Vulcan, Alberta.

The father resides in Okotoks, Alberta, so the parties are about a one hour drive apart from each other. [ 8 ] The father brought an application in May of 2014, wherein he sought day to day care and control of the two youngest children Jaxan and Teagan. He also sought a declaration that Wyatt was no longer a child of the marriage, being 18 years old at that time. [ 9 ] In the application, the father sought a practice note 8 assessment, a variation of child support and an imputation of income to the mother.

He referred, in his affidavit, to numerous concerns that he had about the children, as well as to a child protective services investigation of February 2014, which had occurred after Wyatt had been involved in a physical altercation with the mother’s common law spouse. [ 10 ] In response to that application and affidavit, the mother agreed to a practice note 8 assessment to be conducted by Doctor Larry Fong.

A consent order was obtained from Justice Langston on August 28, 2014, setting out the parameters of the practice note 8 assessment, with the obligation placed upon the father to pay the costs of the assessment at first instance. [ 11 ] On July 27, 2016 Doctor Fong provided his report, dated July 26, 2016, to the Court. It is very detailed, and is some 62 pages in length. [ 12 ] Overall the report shows the mother to come up lacking on a number of matters and issues. The report is far less critical of the father.

However, in the end result, Doctor Fong has recommended to the Court that Jaxan and Teagan continue to reside in Vulcan with their mother. [ 13 ] Some examples of what Doctor Fong determined, with respect to each parent, their parenting philosophies, parenting skills, and whether they were alienating the children, are as follows: Page 7 In clinical interviews the mother remained relatively aloof as to the ongoing academic needs of the children in school. ... However, there was some question in sessions that Ms. Seitz might not be as alive to the due diligence related to parenting her children as might Mr. Seitz.

Page 11 When comparing both parents ability to ensure their children’s needs on a daily basis, the availability of the mother versus the father suggests that she is more likely to be available on a full-time basis then the father, even though overall diligence regarding the children’s needs is more vigorous with the father. There are no indications that the father would be changing his work schedule, and the distance between the parents residence detracts from shared parenting (90km or one hour driving time).

Regardless of his work schedule, he does not currently experience the agreed upon parenting time (every second weekend) that he has with the children. Although ready and willing to see his children they do not wish to attend at his home, and for reasons noted in the assessment, he has not seen his children for any substantive period of time due to these parenting time difficulties. Page 13 In February 2009, there was an investigation regarding the concern of violence between Ms. Seitz and Jaxan, who at the time was almost 9 years of age.

At that time 12 year old Wyatt reported that he had observed his mother beat up his younger brother and that his brother had come from the outside and had dirtied the floor. His mother hit and kicked his brother causing his brother to have a bleeding nose. Apparently, his brother coughed up some blood onto the floor. His mother was observed to hit his brother again. They were living at the time in their grandparent’s home. Page 16 Notwithstanding, the children have indicated in the past that their mother has been forceful with them and on one occasion abusive to the extent that child welfare did intervene.

There have been no indications that this is similar in terms of parenting styles, with Mr. Seitz. There have been no altercations between the children and the step mother. There has been one incident that resulted in the RCMP and

child all for [sic] investigating Wyatt and the step father. There is some question whether alcohol use came into play during this altercation by all participants. Post separation the only positive history with child welfare has been the mother’s care of her children, regardless of the circumstances. If there was a current risk factor, and past history being a predictor of future problems, it would be the mother’s care. The current risk factors do not appear similar to the previous corporal punishment of Jaxan.

While the children do not visit with their father at current date, it would not be due to any risk factors of the father’s lifestyle or home environment. It would not be due to his parenting style. He does not engage in any known or current risk behaviors reflecting due risk to his children. Page 18 While the father in sessions remained cool, collected and focused, the mother more so was unfocused, angry, upset and on many occasions argued in session with the psychologist moving from topic to topic.

At times she was not even focused enough to understand the particular question and created answers not relevant to the topic at hand. The use of the materials were to focus her attention to detail and the particular concern of the moment. There may be indications that she may not quite understand the questions and while reacting to the best of her abilities reflect a more emotional sense than logical one. Page 19 Ms. Seitz indicates that she has been a parent to these children since date of birth and she should continue to do so.

Her parenting plan suggested no changes, a status quo view of parenting, and more sole custodial decisions, eliminating the significant others of Mr. Seitz. Many of the discussions with her during sessions revealed a mother who was upset, angry, and verbally forceful when confronted with her parenting abilities. She is very sensitive to those who might criticize her in this specific area. Asking her questions about the father’s concerns is easily seen by her as an attack on her decision making or parenting ability.

Page 20 The children have the closest connection to their mother, more so than to their father, in likelihood due to the reliance on her, as Mr. Seitz has been, through their formative years, lesser so involved due to the parenting regime. The children have a close connection to Vulcan as it is their most relevant home that includes close community, friendships and familiarity. Like Wyatt, one day, and more sooner than later, the children may leave Vulcan due to future plans, however for the moment this is their recognized home. The parenting plan of Ms.

Seitz indicated that the children are best served by being under her care and control as they always have been. Her parenting plan, although she reported a great deal of assistance by her spouse, when reviewed with this psychologist, contained solutions of which she had already in sessions concluded as something she would not abide. When asked about the parenting plan particulars she was not at all times aware of the content. Thus, Ms. Seitz indicates that the children’s needs are best met by what they want, what they ask for and that any parent should carefully regard their concerns.

She has no compunctions about telling the children her concerns as reiterated by the children. Page 21 [Mr. Seitz] had concerns that Teagan has a mind of her own, and now with the estrangement, she will have nothing to do with him, his wife, or his side of the family. Wyatt has already shown as an example of what Teagan might be. Jaxan appears the more likely to spend time with him, however he is unduly influenced by his siblings and mother.

Page 35 While the father wants to continue making decisions together (parenting) as contemplated in their parenting arrangement by way of mediation, the mother in her affidavits and as well during sessions with the psychologist clearly indicates she no longer wants to co- parent with Mr. Seitz. Essentially the main reason for this is because he has made an application for parenting which has affected her deeply. As well, she suggested that she will never engage Mr. Seitz with the step mother being present in any sessions due to her perception and feelings about the step mother.

Her parenting plan, and her explanations, provided no idea of how to resolve this conflict once the Court or legal counsel were no longer present. Page 36 [Mr. Seitz] wanted to communicate directly with [Ms. Seitz] in terms of what children need but his emails, phone calls, or other methods of communication have all been refused. Ms. Seitz does not necessarily disagree. While Mr. Seitz provided much documentation regarding his ability to contact Ms. Seitz, she on the other hand simply indicated she refused to communicate with him and that’s why she has not replied to any communications regarding the children.

The concept of sharing the decision making component of parenting and as well the amount of time children spend with the nonresidential parent is further complicated by the children’s age and stage of development. The children are currently approximately 13 and 16 years of age where children have much more input and desires in terms of what is important in their life. In this particular instance it is further complicated by the estrangement of the children to their father and their refusal to attend any parenting time with him on any regular basis.

Page 37 The mother’s attitude, if not behaviours, have changed dramatically since February 2014, where upon she has become much more disengaged in terms of the way she wishes to share parenting, if not encourage her children to be with their father. This disengagement

moves from less facilitative, less proactive towards the other parent, less boosting the image of the father, less effort in communication, and less flexible time sharing. This disengagement has as well moved to restrictive and that her behaviours, or comments to the children, may well marginalize the father, and her emails, of which at least Wyatt is privy to, lead to the children feeling alienated to their father.

Her outright refusal to communicate with the father, or at least her statements as such, including the children in decision making directly with their father, have all contributed to this convoluted parenting relationship. Page 38 There is compelling evidence that the children feel alienated from their father. In session, they corroborated a number of concerns that seem similar to all three children. For example, they all indicated that their brother (Jaxan) was forced to eat with a fork versus a spoon and that this was inappropriate.

Some of the current concerns such as this were considered trivial, however significant in that the children felt that this was inappropriate, however could not explain any risk factors associated with that parental request. Page 41 The parenting plans were provided to the psychologist. While the father provided his parenting plan in a timely manner, the mother had to be constantly encouraged to provide her thoughts of what would be in the best interest of her children.

She expressed difficulty in being able to put to paper her thoughts regarding this issue/task and was encouraged to consult with her legal counsel on this parenting plan. While this psychologist sent to the mother documentation at the first instance in this assessment and as well on at least one other occasion, she appeared to struggle with this important project. Page 43 The children refused to attend with their father. The mother indicated she would not encourage the children to attend or force them to attend with their father. The mother indicates that she will not correspond with the father any longer.

She provided no information as to how her suggestions could be implemented in terms of the children having more parenting time, in that those terms of reference were in a previous court order and are the current subject of difficulty to date. Page 56 The father indicated he was at a loss to figure out how to now resolve parenting time with Teagan, who is so dissatisfied with visiting, and that her negative views of him, his wife and his family all suggest rougher versus smoother parenting times if the court enforces the parenting time.

Children at 14 often “walk with their feet” so to speak when they don’t want to do something. Teagan’s involvement in this custody dispute, the information she has received, that which is hard to comprehend for adults, all has increased the ill feelings she has for her father. Her visiting with her father is compromised by the current perceptions and feelings she has for her father/family of origin that would or could result in friction within his home resulting in uncertainty. There is no reason the children would not be cared for by their father.

His approach however, as more authoritative, in the children’s lives, when brought up much more permissively, in conjunction with this type of parenting that they have known for most of their formative years, may appear difficult for them and result in more conflict. Teagan has already stated in more or less terms, that she has a mind of her own and will do as she wishes. There are reasons the children should not reside with their father, the more important concern is that Teagan is estranged, perhaps even alienated or portraying alienating feelings and perceptions of her father.

This has been accentuated with the mother’s involvement of the children in this dispute and as well her perceptions, ideas and perspectives of the parenting problems to date comingled in a way that further estranges the children. The mother’s insight, at least during this assessment is poor. Her emotional outrage and feelings are getting in the way of resolving the conflict.

Her temperament and low frustration for tolerance, along with low self-esteem she blames on others, result in more protracted difficulties as it relates to sharing information and parenting time. [ 14 ] It can be seen from the report, and two court attendances to order compliance, the mother was uncooperative through a great deal of the assessment, which, it would appear, accounts, in the main, for the significant delay between the order of Justice Langston, and the delivery of the practice note 8 report from Doctor Fong. [ 15 ] Doctor Fong’s report indicates that the mother shows no inclination whatsoever to sharing decisions with respect to the children.

She shows no inclination towards communicating with the father. She has failed to produce a parenting plan. She has no regard at all for the father’s interests in parenting the children. She has allowed the children to become embroiled in the custody battle, to review documents within the court proceedings such as affidavits, and she has alienated the children towards their father. [ 16 ] The rationale for Doctor Fong’s recommendations is set out at page 57: The recommendations are made because the child’s best interests are met differently by both parents.

Each parent has very different skill sets for the children. With high conflict family such as this, suggestions to the court help the parents and children with more certainty at a time when there is so much upheaval and uncertainty. These recommendations are made in conjunction with the information received (limitations) and the information appears germane and relevant to the suggestions made for these children spending time with their parents. When psychologists provide recommendations to the Court they are done so as to inform the Court of the opinions of the psychologist as to the best interests of a child.

The recommendations are not made with respect to a parent’s needs, but that of a child. There are always limitations to an assessment and the data received by the parent’s or other sources are what was considered. Often a parent’s wants and needs are quite different from what the psychologist might determine that a child needs. The psychologist, at the start of the assessment indicated that one set of parent’s would not be happy with the recommendations, but that the best interests of the children would be the guiding principle for this assessment.

[ 17 ] Doctor Fong considered the best interests of the children, and his recommendation is that the children continue to reside with the mother in Vulcan, Alberta, and continue with their schooling there. He has made a number of recommendations regarding parenting time, time of visitations, and the like. [ 18 ] One matter of concern was never addressed by Doctor Fong, since it did not arise until October 14, 2016. Jaxan had left a voicemail on his father’s cellphone, and had not hung up the phone thereafter.

The conversation between Jaxan and his mother (apparently with Teagan present) was recorded. [ 19 ] A sampling of that recording is as follows: Mother: You son of a bitch, I didn’t tell you to leave a fucking message after, don’t you fucking grab me when I’m fucking driving.

Jaxan: I’m sorry, I’m sorry Mother: Son of a bitch why would you talk when I’m talking why would you do that Jaxan: I’m sorry I’m sorry Mother: Why would you do that Jaxan: I’m sorry I’m sorry Mother: Why Jaxan: I’m sorry can I have my phone back Mother: You son of a bitch no you sure as fuck can’t as I am yelling at you in the background son of a bitch how fucking stupid are you are you fucking clueless Jaxan: Mom Mother: You get in that house and get in that room and don’t show your face to me again you son of a bitch Jaxan: I’m sorry Mother: Fucking son of a bitch fucking asshole Jaxan: He didn’t, he didn’t listen to me though, mom Mother: I didn’t ask you to leave a message Jaxan: Can I phone back mom Mother: The one time you actually fucking do as you’re told, you’re not having anything, you won’t have an iPad either tonight or all fucking weekend.

I said keep phoning did I ask you to leave a message, no, we phone and fucking hang up. Jaxan: I’m sorry Mother: Sorry away from me. Jaxan: I don’t get an iPad tonight mom Mother: You get nothing Jaxan: I’m sorry Mother: You son of a bitch like you can’t hear me talking in the background Jaxan: Can back mom Mother: Get out of this fucking truck and get the fuck away from me Jaxan: I’m sorry Mother: Seriously get out of my truck, get Jaxan: I’m sorry Mother: Shut the door Jaxan: I’m sorry Mother: Shut the fucking door Jaxan: I’m sorry

Mother: Shut that fucking door right now you son of a bitch shut it [ 20 ] Faced with this recording, the mother has apologized and acknowledged that her conduct was improper. She says that she has attended counselling to correct her actions. [ 21 ] However, the chance recording of her treatment of her somewhat disabled son, is appalling and disturbing: even more so because she is being critical of her son for leaving a message on the father’s telephone.

If this parenting behaviour is caught on one chance recording, how often does it happen when not recorded? [ 22 ] It is to be noted that Jaxan suffers from Asperger spectrum and ADHD. He participates in a special program at his school in grade 11 called “the rise and shine program”. The daughter, Teagan has Legg-Calve Perthes disease, which affects the ball and joint of her left hip. [ 23 ] The Court considers that the mother has strung this matter out as long as she could, in order to strengthen her status quo arguments.

The mother has, in the meantime alienated the children against their father, and appears to have done so successfully, so much so that the daughter, Teagan, has no interest in spending time with her father. [ 24 ] The son, Jaxan, was physically assaulted by the mother in 2009. The recording referred to above, of October 2016, shows that the mother continues to be verbally abusive of Jaxan. [ 25 ] Jaxan has special needs, which are presently being satisfactorily met at his school, and the special program in which he is enrolled.

The father has determined that similar facilities are available for Jaxan in Calgary, albeit not in Okotoks. [ 26 ] The children have lived all of their lives in Vulcan, and it is in Vulcan that their supports, community interests, schools and friends reside. [ 27 ] Notwithstanding the mother’s failings as demonstrated above, the Court must consider the best interests of the children. In this case, the Court considers that the best interests of the children are met by the children continuing to live in Vulcan with their mother.

They have by now become so indoctrinated to the present parenting regime and so alienated from their father as to make the alternative, of primary parenting by the father, to be unworkable. While Jaxan might accept a change in parenting, Teagan will not; and I do not think that separating the children from each other is in their best interests. [ 28 ] I have reviewed the recommendations of Dr. Fong, contained at pages 58 to 62 of his report; which recommendations are numbered 1 to 42. Of those recommendations, the following numbered recommendations are to be incorporated into my order: 4.

All major decision must include both parents; 5. As provided in the Fong report; 6. As provided in the Fong report; 7. As provided in the Fong report; 8. The parents shall share educational needs decision making for both Teagan and Jaxan; 9, 10, 11. The parents shall share medical needs decision making for both Teagan and Jaxan; including emergent care; 14, 15. Teagan and Jaxan will continue to attend upon their father for his parenting time. The mother will encourage and facilitate those attendances; 16.

Teagan is to immediately commence counselling with a psychologist or regulated health care professional with the primary goal being reunification between father and daughter; 17. Father’s weekend access to Teagan and Jaxan is Friday after school to Friday at 1800 hours; 18-32. As provide d in the Fong report; 33. The parents are directed to use Our Family Wizard: https://www.ourfamilywizard.com to communicate between them; 37-40. As provided in the Fong report; and 41.

If the parties cannot agree on any parenting issues, they are to be resolved by Arbitration conducted in accordance with the Arbitration Act , RSA 2000, c A-43. Payment for the Fong Report [ 29 ] Reading of the Fong report leads me to the conclusion that it was necessary and appropriate that the assessment be conducted in the interests of the children.

It further leads me to the conclusion that the mother was uncooperative with Doctor Fong, thereby increasing the costs of his report and lengthening the time it took him to complete the report. [ 30 ] Further, the conduct of the mother as indicated in the recording of October 2016, convinces me that the concerns of the father are indeed genuine and well founded. [ 31 ] While I have determined that it is in the best interests of the children, at their ages of 14 and 16 respectively, to continue to

reside with the mother, I conclude that the mother has alienated the children, and dragged this matter out to the point where it now is intheir best interest, where it likely would not have been, were they younger, and not alienated from their father. [32] Accordingly, I direct that two thirds of the costs of the Fong report be borne by the mother, and one third borne by the father.Since the father has paid for the report, he must be repaid for two-thirds of the cost by the mother. Is Wyatt a Child of the Marriage? [33] After high school, Wyatt was not enrolled in a full time post-secondary education.

However, that is explained by the fact thathe was involved in a motor vehicle accident causing him serious injuries, and which kept him out of the University of Lethbridge wherehe had been enrolled. He therefore lost a year of school. He has since been enrolled full time since September of 2016, and is succeedingat school with a grade point average which is described as being 3.14 out of 4. [34] The divorce judgment provided that, so long as Wyatt was enrolled in a post-secondary institution and attaining passingmarks, he would continue to be a child of the marriage until age 21.

Counsel for the mother therefore maintains that he should continueas a child of the marriage at least through this scholastic year. [35] Wyatt has refused to have anything to do with his father. His only communications with his father have been vulgardenunciations. He has indicated that he wants nothing further to do with his father. Wyatt reported his father to the police, suggesting hisfather had sexually interfered with one of Wyatt’s friends.

No charges were laid. [36] The oft quoted decision of Master Joyce in Farden v Farden, (BC SC), [1993] BCJ No 1315 (SC) dealswith circumstances where the child has refused to be involved in any respect with his father. Master Joyce found that the applicantmother had not met the burden of establishing that her son continued to be a “child of the marriage” since the evidence was insufficient toestablish that he was pursuing a course of studies that may lead to some appropriate career. He found the son was proceeding with hisfurther education at “a leisurely pace”.

He was not taking a full course load. [37] Master Joyce then also noted: “The son has refused to consider any sort of relationship with his father. I conclude from the reasons of his Honor Judge Hyde that thefather was not guilty of any conduct which disentitled him to access. The trial judge found as a fact that the mother had alienated the sonfrom the affection of his father. As a boy he may have had little control over the situation. However, he is now an adult. He shows a totalunwillingness to attempt to reinstate any relationship.

He would be content to take money from the father but otherwise refuses toacknowledge him as a parent. In my view this is an additional factor which I can take in to account in dismissing the application.” [38] I am of a like view with respect to Wyatt. Wyatt has effectively disowned his father. His father’s obligations to pay childsupport in respect to Wyatt, therefore ended when Wyatt reached 18 years of age. Continuing Child Support for Teagan and Jaxan [39] The father’s obligation to pay child support will continue with respect to Teagan and Jaxan.

I have not been provided withreliable details as to whether, or to what extent, there are arrears in

section 3 or

section 7 child support. However, to the extent that thereare arrears owing by the father to the mother, the amount that I have assessed against the mother in respect of Doctor Fong’s report, oftwo thirds of the costs of that assessment and report, are to be deducted from any arrears. Further, to the extent that there still remains anamount payable by the mother to the father in relation to her two thirds share of Doctor Fong’s report, that amount is to be retired by thefather reducing

Section 3 child support payments by their full amount per month, until the mother’s share of the Fong report has therebybeen reimbursed to the father. Costs [40] Both parties seek costs from the other, and indeed they seek costs on a Solicitor/Client basis. [41] While there has been high conflict between the parties, I do not see any basis upon which Solicitor/Client costs would beappropriately ordered in this circumstance. [42] Normally, the party who was successful would be awarded costs from the unsuccessful party, and in this case on the mainissue of primary parenting, the mother has been successful.

However, I find that the mother’s behaviour towards the father, and inalienating the children, and in abusing Jaxan (physically in 2009 and verbally in 2016) disentitles her to any costs. In fact, I award costsof this special application to the father in column 2 of

schedule C in the Rules of Court. Heard on the 31st day of January, 2017. Dated at the City of Calgary, Alberta this 3rd day of March, 2017.

R.J. Hall J.C.Q.B.A. Appearances: Brad K. Hembroff for the Plaintiff Lori G. Andreachuk, Q.C. for the Defendant