Sahni v Sahni, 2017 ABQB 296

Court of Queen’s Bench of Alberta Citation: Sahni v Sahni, 2017 ABQB 296 Date: 20170428 Docket: 4803 163249 Registry: Edmonton Between: Gaurav Sahni Plaintiff - and - Rati Sahni Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.C. Read _______________________________________________________ [ 1 ] Gaurav and Rati Sahni divorced in November 2016. They have one child who is presently 8 years old and in Grade 3. In a four-day trial, I was asked to address four issues: custody of the child; a parenting

schedule for the day-to-day parenting of the child; child support; and short term spousal support for Ms. Sahni. [ 2 ] The issue of overwhelming importance to the parents is custody and parenting of the child. I gave the part of the judgment dealing with custody and parenting orally on the last day of trial.

I have repeated it here for ease of reference. [ 3 ] This action has been under case management and both Madame Justice Yungwirth, the case manager, and Brenda Kaminisky, case management counsel, have worked closely with this couple to try to avert the necessity of a trial and, when that proved impossible, to try to ready the parties for trial. [ 4 ] Both parties had been represented by counsel but at trial, only Ms. Sahni had a lawyer. Mr. Sahni represented himself.

[ 5 ] During the trial, both parents focussed their evidence almost exclusively on incidents of conflict and bad behaviour by the other parent in the past. Much of what was offered was irrelevant as it was unrelated to their child’s care or any of the other issues before me. I have ignored this irrelevant evidence. [ 6 ] However, some of the evidence tendered was with respect to bad behaviour of the parties when they met to exchange the child from his mother’s to his father’s care or vice versa . This evidence is relevant because it affects the child. [ 7 ] One incident will suffice as an example.

On Mother’s Day 2016, the child was brought by his father to the exchange point, a police station, so that his mother could have him for the remainder of the day. This was in accordance with a court order made only a short time before. An altercation ensued between the parents. The mother called a police officer to intervene. Ms. Sahni was of the view that Mr. Sahni was impeding their son from getting out of his car to walk the short distance to his mother’s car. Mr.

Sahni was of the view that their son did not want to go to his mother and wanted to stay with him. [ 8 ] It does not matter which of them was correct. What matters is that each was intent on being the ‘winner’ in the situation. Mr. Sahni delayed in getting out of the car with their son. When he saw Ms. Sahni waiting in her car, he must have known that she would be concerned about what was going on. Predictably, Ms. Sahni over-reacted by calling the police.

Neither appeared to notice the misery of their young son, caught in the middle, and made to answer the question of the police officer, who put their son on the spot by asking whether he wanted to stay with his father or go with his mother. [ 9 ] Dr. Anne Daines completed a Practice Note 7 intervention shortly after this incident. She was able to speak to the child about how he felt when his parents were fighting on Mother’s Day. At first, he said he felt “normal” but later he said he had a bad feeling and after further working with him, Dr.

Daines reported that he expressed feelings of confusion and sadness about the transition conflict. [ 10 ] Dr. Daines and the other psychologists who have worked with this family say that the son exhibits “dissociation” as a coping mechanism in response to his parents’ conflict. Dr. Daines was of the view that the child’s initially stated reaction, that he felt “normal” provided a good example of this and should not be viewed as evidence that the conflict did not affect the child. [ 11 ] There is a long history of conflict between these parents, involving their son’s care.

This is clear from the experts’ reports of Dr. Daines and the other two psychologists who were tasked with providing therapeutic interventions under Practice Note 7 and an assessment under Practice Note 8. This was also clear from the evidence I heard. This conflict has not abated over time and is still very much a feature of the parties’ contact with one another. [ 12 ] It is equally clear, both from the experts’ evidence and from the testimony of both parents, that each blames the other for this conflict.

Neither has much insight into the role their own behaviour plays in it, even though they have been told on countless occasions by all of the psychologists that their behaviour is harming their son. Both acknowledge this harm verbally but neither seems capable of modifying their own behaviour sufficiently to lessen the conflict. [ 13 ] Mr.

Paul Preston, who completed a Practice Note 8 assessment beginning in December 2014, and culminating in a report issued in February 2016, was of the opinion that other than their conflict with each other, both parties were good parents and that their son needed his relationship with both parents. [ 14 ] In Mr. Preston’s view, their son found it traumatic when his mother was absent in India for five months beginning when he was 4 ½ years old and his trauma was worsened by his being told by a friend of the father’s, during his mother’s absence, that she had died in India. As a consequence, it was Mr.

Preston’s opinion that although the child’s bond with his mother remained close and important, he felt anger and ambivalence towards his mother. It was Mr. Preston’s opinion that the child’s relationship with his mother needed repair and this could best be achieved by therapeutic therapy involving them both. [ 15 ] By further order of the Court, Dr. Anne Daines, PhD, a registered psychologist, engaged in a therapeutic intervention with the child and his mother between April and June 2016. Her report was entered by agreement.

She worked with the child and his mother in respect to their relationship but she also noted the extreme level of conflict between the parents. She recommended that the counseling intervention for the child and Ms. Sahni be discontinued or postponed in favour of intervention to reduce conflict between the parents. [ 16 ] Also by order of the court, Dr. Stephen Carter, PhD, another registered psychologist, attempted a therapeutic intervention with the parents to resolve conflict and address parenting issues and disputes.

He saw the parties individually and together between the end of November 2016 and the end of February 2017. He also identified the level of conflict between the parents as the greatest barrier to their being able to parent effectively. Ultimately, he concluded that the process he had undertaken with the parties could not succeed. He ended the therapeutic intervention and suggested that a two therapist approach could be utilized.

As an alternative, he suggested a rigid and detailed court order could be utilized to minimize the opportunity for the parents to continue their conflict, at least in ways that directly affected their son. [ 17 ] The current parenting regime was established by order of Justice Yungwirth. By her order, the father has primary residential care of the child. His mother has access to him each Tuesday and Thursday, picking him up after school and until the following morning drop off at school.

In addition, the mother has access every second weekend from Friday afternoon, when she picks him up after school, until Monday morning when, again, she drops him off at school. If there is a school holiday on Monday, her access continues until the Tuesday when, again, she drops him off at school. [ 18 ] Various orders have been made for summer holiday periods and other holiday periods so that these can be shared by the parties. [ 19 ] The father has three proposals for the future. All would have him be primary parent and decision maker in all aspects of their son’s life and give the mother access.

His first choice is for the mother to have access every alternate Thursday to Monday, with the mother picking the child up after school on Thursday afternoon and returning him to school on Monday morning. [ 20 ] His second choice is for the mother to have access on alternate weekends with the mother picking the child up on Friday after

school and returning him to school on Monday and on alternate weeks picking the child up after school on Thursday and returning him on Friday morning. This would be what would occur on the weeks when Ms. Sahni does not have the child for the coming weekend. [ 21 ] His third alternative is for Ms.

Sahni to have their son every alternate weekend from Friday after school until Monday return to school and with her, in addition, to have access every Thursday, picking him up Wednesday after school and returning him to school Friday morning. [ 22 ] Each of these alternatives would give the mother less time with their son than she now has. Mr. Sahni says the present regime keeps the child away from his “family” too much and interferes with his ability to engage in extra-curricular activities.

He points to the evidence as well that their son told one of the psychologists that the present regime was “not working for” him. [ 23 ] The mother also has three proposals. The first is for her to have day-to-day care and control of the child with the father to have access to him every second weekend from Friday after school until Monday return to school. This is the mirror image of the father’s first choice, simply substituting her as the primary parent. [ 24 ] Her second proposal would add one more weekend to Mr.

Sahni’s time with their child, so that he would have three weekends out of four on the same terms as already outlined. [ 25 ] Her third proposal is for shared parenting, with the child to be with his mother in week one from Monday after school to Wednesday when she drops him at school. The father would then pick him up after school and have him until Friday when he drops him at school. In week one, the mother would pick the child up after school on Friday and return him to school the next Monday. In week two, the Monday through Wednesday routine would be the same.

However, the father would pick him up after school on the Friday and return him to school the next Monday. [ 26 ] In all cases, both parties suggest that the pick-up and drop-off should be at the school during the school year. [ 27 ] The parties are able to agree that statutory and other holidays and professional development days (in other words all week days during the school year when their son is not required to attend school) should be treated as a part of the access day of the parent who would be dropping him off at school that day, were it a school day. [ 28 ] To their credit, the parties are also in agreement with respect to what should happen at Christmas and spring break so I need not outline their position at this point in the judgment.

They differ in respect to what should happen during summer vacation from school. The father says that in July, the

schedule should be the same as during the school year. He says that in August, their son should spend alternating weeks with each parent.

During this period, either party can take him out of town for a vacation but neither can ever take him out of the country. [ 29 ] The mother suggests that in July, he go back and forth between his parents’ homes on a week on/week off basis but that in August, each parent should have a two week block during which they can take him on holiday, including going outside the country if desired and provided that proper information is given to the non-travelling parent. [ 30 ] The test is what is in the child’s best interests. [ 31 ] Other than their conflict, the evidence is that both are good parents and can meet the needs of their son.

Both clearly love him and want what is best for him. He is blessed to have a paternal grandmother who lives in his father’s home with him and another child, a 3 year old girl, who he calls his sister but who is, in fact, not related to him, also living in his father’s house. In addition, there are two other adults in that house, friends of his father’s, who are husband and wife and the parents of the girl. They also act as substitute parents to the child when his father is not home and this is beneficial. Mr.

Sahni has enrolled their son in a number of activities that are interesting for him and he and the other people in his home are available to get him to these activities. [ 32 ] At his father’s home, the child has his own bedroom, many toys and friends who live in the neighbourhood. One friend in particular is someone who is particularly close to him. [ 33 ] By contrast, his mother lives by herself in a one-bedroom apartment. The child has his own bed there and many toys but he does not have close neighbourhood friends. Ms.

Sahni’s family lives in India so their son does not have the benefit of seeing them when he is at his mother’s. Nor does Ms. Sahni have the family support that Mr. Sahni has to aid her in caring for the child when she must be at work. She does have friends who fill this role. The child also has friends within close driving distance of Ms. Sahni’s home. Ms. Sahni has arranged some extra-curricular activities for their son as well. [ 34 ] None of the psychologists expressed any concerns about the adequacy of the accommodations Ms.

Sahni has to meet their son’s needs and, in any event, relationships are much more important for the child than is his accommodations. [ 35 ] Many efforts have been made by skilled professionals to work with this couple and to try to reduce the continuing conflict. [ 36 ] None of these efforts has succeeded.

I have to wonder whether future efforts will be any more effective and wonder, as well, if the parties have the funds to continue counselling that is not funded by a private or public health care plan. [ 37 ] I am reluctant, for these reasons, to order the parents into counselling, assuming I even have the jurisdiction to do so. However, I do strongly advise both parties to seek individual psychotherapy as recommended by both Mr. Preston and Dr. Carter, if they have the funds to do so.

Both would benefit from it personally and the possibility always exists that it will aid them to gain enough insight to understand their own role in continuing to engage in conflict with the other parent. I hope each will someday understand that each is 100% responsible for his or her own actions and words and, thus, 100% responsible for any negative effect on their son of what they say and do. 1. Custody and Access:

[ 38 ] I have concluded that since dual counselling suggested by Mr. Pearson is likely too expensive for the parties and, given their track record, may not be successful, I will instead formulate a clear, detailed and hopefully dispute-proof parenting order that gives the parents no discretion to operate outside of its terms. [ 39 ] To aid them in abiding by the terms of the order and to regulate disputes, I will require the parents to retain a parenting coordinator who shall be a lawyer, a psychologist, or a social worker and who shall have experience acting as a parenting coordinator.

The parenting coordinator shall work with the parents for a period of one year after he or she is retained. The parenting coordinator will meet and communicate with the parties at such times and with such frequency as the parenting coordinator deems appropriate and will permit the parties to communicate with the parenting coordinator only in a manner and at a frequency deemed appropriate by the parenting coordinator. The goal of the parenting coordinator will be to resolve parenting issues as they may arise.

If the parties cannot agree within one month from the last day of trial, on a parenting coordinator, either may apply to the court for one to be named. Any such application must be made within two months of the last day of trial. It is absolutely necessary to get this parenting coordinator into place as soon as possible. [ 40 ] The parents will share the costs of the parenting coordinator with Mr. Sahni to pay 55% of the costs and Ms.

Sahni to pay 45% of the costs, this being the approximate ratio of their respective incomes for 2016 and estimated for 2017. [ 41 ] The most important thing for the child is to obtain counselling since it seems evident that he may have to continue to endure the conflict between his parents. Therefore, I order that the child be enrolled in play therapy with a therapist recommended by Mr. Pearson. This therapist will agree not to disclose anything that the child says or any issue that arises in play therapy to either parent.

Both parents will sign a waiver agreeing not to request such information from the therapist. The waiver will include a clause pursuant to which the parents agree that they will never call the play therapist to give evidence in any court proceeding. The play therapist may disclose things that the child says or issues that arise to the parenting coordinator, but only if the play therapist is of the view that this is necessary and in the child’s best interests. [ 42 ] The parents will share the cost of the play therapist so that Mr. Sahni pays 55% of the cost and Ms.

Sahni pays 45% of the cost. [ 43 ] I share the conclusion of the many experts about the importance in a parenting order of reducing the occasions for conflict between the parties, as these can affect the child. [ 44 ] I can only do this by limiting the number of transitions of the child between his parents. In doing so, I must also bear in mind Mr. Preston’s recommendation that at their son’s age, he should not be absent from either parent for an extended period of time.

This may be especially true for the child who, by all accounts, was very negatively affected by his mother’s long absence in India when he was only four years old. [ 45 ] I am aware also of Mr. Preston’s opinion in 2016 that until the child’s relationship with his mother was repaired from this trauma, he thought that granting 50% of the access time to the mother might actually do further harm to their relationship. However, it is my view the repair has now occurred. I am prepared to accept Dr. Daines’ opinion that the relationship between the child and his mother is largely intact and positive.

It was her view in June 2016 that there is no necessity to continue the relationship therapy between Ms. Sahni and their son and the much more important therapy should be between the parents to try to reduce their level of conflict. [ 46 ] I accept her opinion over that of Mr. Preston for two reasons. Dr. Daines saw the child after Mr. Pearson did and, unlike his, her mandate was specifically to deal with the relationship between the child and his mother. Further, her expertise was agreed to as was her report. There is no valid reason not to accept her conclusion. [ 47 ] As we know, from Dr.

Carter’s evidence, the therapeutic attempt to reduce the parents’ conflict ended in failure. I must accept, therefore, that the conflict between the parents is likely to continue. [ 48 ] It is my view that it is in the child’s best interests to spend approximately half his time with each of his parents. Both are good parents. His bond with his mother is strong and must be supported. His bond with his father is also close. These are the two most important people in his life.

He deserves to have a relationship with each and deserves to be permitted to continue to love both of them. [ 49 ] Joint custody will continue. Although the evidence is that the parents’ conflict is fierce, it seems to revolve mainly around physical time with the child and obtaining information about him and his activities. There was little evidence of conflict centred around decision making per se. Neither parent has shown an inability to make good decisions on their son’s behalf in terms of his care, his activities and his education.

Both should continue to do so. [ 50 ] There is another reason, though, to continue with joint decision making. [ 51 ] Mr. Sahni takes his responsibilities as a parent very seriously. He has created a home that meets his and their son’s needs and, by all accounts, is supportive to both. However, I was disturbed to hear him call the group of people he is presently living with their son’s family. I was also disturbed to hear him continually refer to the child as ‘my’ son. I do not doubt that the child is close to the other people in the home.

However, the people he refers to as his aunt and uncle are simply friends of his father. The girl is not his biological sister, although he refers to her as such. Mr. Sahni has to realize that their son’s family includes his mother and her role cannot be minimized by him. [ 52 ] Some of the decisions Mr. Sahni has made in the past seem to have been designed to limit the amount of contact the child has with his mother and to exclude her from decision making and from obtaining information about their son.

I am concerned that if he continues to act as primary parent to the child, these efforts to limit the child’s time with his mother will continue and Mr. Sahni will undercut Ms. Sahni’s role in the child’s life. This cannot be permitted to occur. [ 53 ] I acknowledge that Ms. Sahni also sometimes referred to the child as ‘my son’, although sometimes she corrected herself to say ‘our son’. Both parties have to bear in mind that the child is a son to both of them. Nothing can or should change that.

[ 54 ] I have concluded, additionally, that, since they cannot get along, they will have to have parental parenting of the child. The risk that they will fail to cooperate on day-to-day decisions is high. This could expose the child to conflict. Thus, each will make all day- to-day decisions for their son during the time he is in their care. Neither will need to consult the other parent in making these decisions. [ 55 ] If, when he is at school, an issue arises, the school will first telephone the parent who dropped the child off at school that morning to deal with the issue that has arisen.

This includes dealing with illness or any discipline matter that may arise. If the school cannot immediately contact the parent who dropped off the child, using the contact information they have provided to the school, then the school may telephone the other parent. The parent who is first actually contacted by the school will make whatever decisions that need to be made and will not need to involve the other parent in the decision making.

However, the parent who has made the decision will report to the other parent by email, explaining what has occurred and what decisions have been made, as soon as reasonably possible. [ 56 ] The school will be provided with a copy of the parenting order in this matter. In addition, both parents will provide the school with their contact information and it will be each parent’s responsibility to keep this information up to date and accurate.

The school will provide both parents with information about field trips, special events, and parent-teacher interviews and will ensure that both parents have access to their son’s report cards and any other school-generated information regarding their son. [ 57 ] All major decisions such as what school he should go to, what his cultural and religious upbringing should be, whether he should undergo any elective or non-urgent medical procedure or surgery, or whether he should be permitted to travel outside the country or engage in any physically dangerous pastime such as sky diving, will require the parties to agree.

Such agreements will be facilitated by the parenting coordinator, who will establish the rules pursuant to which the parents will try to reach agreement. If they cannot reach an agreement, then the decision will be made by reference to the Court on notice to the other party. [ 58 ] I conclude that, during the school year, the child should spend time with his mother from Monday, when she picks him up after school, until Wednesday, when she drops him off at school. His father should spend time with him from Wednesday, when he picks him up after school, until Friday when school is dismissed.

In week # 1, his mother will pick him up after school on Friday and return him to school on Monday morning.

In week # 2, the father will pick him up after school on Friday and return him to school on Monday morning. [ 59 ] Subject to the specific provisions I have made for summer holidays and for spring break, Christmas, and Mother’s Day and Father’s day, all of which I will outline below, if during the school year there is a school holiday of any sort, (i.e. professional development day, teacher’s convention, statutory or other holiday), when the child does not go to school, then the parent who has him in their care before school on the day of any such non-school attendance day will continue to have the care of him for the non-attendance day.

If the school non-attendance day is a Friday, then the weekend access will occur as usual so that whichever parent is to have the upcoming weekend will exercise access on that weekend, with the exchange to occur at 5 pm at the police station as I will describe more specifically in a few minutes. [ 60 ] This

schedule will enable the child to spend only a few days at a time without seeing the other parent. The maximum amount of time during the school year when he will be away from either parent is five days. The exchanges will always occur at school and there will be no necessity for the parents to be together.

Thus, the possibility of conflict during transitions should be minimized. [ 61 ] Both parties may enroll him in any extra-curricular activity that occurs solely during their parenting time with him. [ 62 ] If it is desired by either party to enroll him in an activity that will take place during the other parent’s access time, they can only do so by agreement. Such agreements can only be reached with the aid of the parenting coordinator who will establish the rules pursuant to which the parties will attempt to reach an agreement.

If there is no agreement, then the child may attend only that portion of the activity during which the parent requesting the activity has him in their primary care. [ 63 ] I recognize that this order may curtail the child’s extra-curricular activities and will negatively affect his ability to participate in team sports such as soccer and hockey which, I understand, he loves.

I am hopeful that, knowing his interests, both parents will strive to foster the child’s interests by reaching agreement. [ 64 ] Neither parent will be present at any extra-curricular activity or other school or cultural event which occurs during the other parent’s parenting time. In no case shall both parents be at the same event together. [ 65 ] The child’s routine and emergency health and dental care shall be dealt with in accordance with the agreements made between them when they met with Dr. Carter. These terms are as follows:

a) For 2017 and all odd-numbered years thereafter, Ms. Sahni shall take the child to all routine dentist appointments. In 2018 and all even-numbered years thereafter, the Mr. Sahni shall take the child to all routine dentist appointments. This provision shall apply to a maximum of two routine dentist appointments per year.

b) For 2017 and all odd-numbered years thereafter, Mr. Sahni shall take the child to all routine appointments with a doctor. In 2018 and all even-numbered years thereafter, Ms. Sahni shall take the child to all routine appointments with a doctor. This provision shall apply to a maximum of two routine appointments with a doctor per year.

c) Within 24 hours after an appointment described in sub-paragraphs (

a) and (b), the party who took the child to the appointment shall email the other party a list of results/concerns/treatments communicated by or prescribed at the appointment by the dentist or doctor. The parties shall cooperate to submit all expenses from the appointments to both parties’ medical benefits providers.

d) For non-routine emergency appointments with a doctor or dentist, the parent with whom the child is residing at the time of the appointment shall take him to the doctor or dentist and notify the other party as soon as possible and in any event not later than two hours after the appointment has ended. For emergency hospital or emergency clinic care, the parent with whom the child is residing at the time of the appointment shall call the other party immediately.

[ 66 ] The parties are agreed as to Christmas and spring break. The Christmas vacation period shall be divided into two equal parts. The first period will begin after school is dismissed on the last school day before Christmas. It shall end at noon on the day and at the time that is exactly half of the Christmas vacation period. The second period will begin when the first period ends and will end when the child is dropped off at school on the first day that school recommences after the Christmas vacation period. In 2017 and all odd numbered years, Ms. Sahni will have the first period. In 2018 and all even numbered years, Mr. Sahni will have the first period. [ 67 ] The regular access

schedule is suspended during the Christmas break period. It will be recommenced immediately after the Christmas break period. In other words, if the week immediately before the start of the Christmas break period was week # 1, the week immediately after will be week #2, even if because of when Christmas fell, Ms. Sahni did not have the opportunity to enjoy the weekend with the child or vice versa . [ 68 ] Spring break access will begin at school dismissal on the first day of the period designated by the child’s school in their calendar as spring break.

It will end when school recommences on the first day after spring break, as defined in the school calendar. Exactly one half of each spring break will be spent with each parent. In 2018, and in all even numbered years, Mr. Sahni will have the first half of spring break. In 2019 and in all odd numbered years, Ms. Sahni will have the first half of spring break. The regular access

schedule will be suspended for spring break and the same rules respecting recommencement of the regular

schedule shall apply. In other words, if the week before spring break was week #1, then the week immediately after will be week #2, regardless of whether the parent who would otherwise be entitled to exercise access on the weekend before spring break could in fact do so. [ 69 ] Mother’s Day weekend each year will be with the mother, whether or not it would otherwise be her weekend. Father’s day weekend will be with the father each year, whether or not it would otherwise be his weekend.

On Mother’s Day weekend, the mother will pick him up when school is dismissed on Friday and return him to school on Monday morning. On Father’s Day weekend, the father will pick him up on Friday when school is dismissed and return him on Monday to school. After the Mother’s Day weekend, the next weekend will be designated as week #2. In other words, the father will have access to the child on the weekend following Mother’s Day. The weekend after Father’s Day will be designated week #1. Thus the mother will have access on the weekend following Father’s Day. This will mean that the parties’ regular

schedule may change after each of Mother’s and Father’s Day as the

schedule will continue thereafter with week #1 following week #2 as usual. [ 70 ] As school will be closed and cannot be used as a transition place during Christmas and spring break, I direct that transitions occur in the parking lot of the West Division Police Station located at 16505 100 Avenue in Edmonton. Both parties will be alone when exchanging the child of the marriage. Neither party will leave their car. The parties are directed to park their cars within reasonable proximity to one another, within the confines of the parking lot. The child will exit one car and walk to the other parent’s car by himself.

Neither parent will do anything to impede or discourage him from leaving his or her car. Both will encourage him to exit their car promptly. Neither party shall leave the parking lot until they see him get into the other parent’s car. [ 71 ] Summer vacations will be defined as beginning on the day and time when the child is dismissed from school in June until the date and time that he is expected to return to school in late August or early September, all as defined in and directed by his school calendar. [ 72 ] While it would be ideal for the child if the parties could agree that the same

schedule as existed during the school year could continue for one summer month, as suggested by Mr. Sahni, I am concerned about the transitions. With no school to use as a transition place, the parties will have to use the West Division Police Station. Transitions at the police station are not desirable. The video made last Mother’s Day and the fact that the parents could not always govern themselves even with the psychologists in attendance make it clear that the parents cannot be trusted to behave even in the parking lot of the police station.

Thus, I want to limit the number of transitions. [ 73 ] I order, therefore, that the parties shall equally share access on a week on/ week off basis during the summer vacation period, with the exchange of the child occurring each Friday at 5 pm at the West Division Police Station parking lot and with the same rules to apply as outlined above. This summer regime is the same one that the parties had under the order made by Justice Yungwirth on March 16, 2016. [ 74 ] This will be the

schedule for the entire summer. I have decided against permitting a two week vacation period for both parties at this stage of the child’s development because, relying upon the opinion of Mr. Pearson, I conclude that it would be too long a period for him to be away from the other parent. [ 75 ] During their summer access times, both parents may travel with the child. Such travel will only occur in Canada or in a country that is a signatory to the Hague Convention. Out of country travel must be agreed to by the other parent.

If a parent wishes to travel with the child during any access period, they will give notice to the other party by email at least 2 weeks before the planned departure and will give the other parent specific information about the destination, the mode of transport to and from, including specific ticket information if the travel is by public transport such as by air, and where the child will be staying at the destination and en route. They will also provide the other party with a contact telephone number so that the non-travelling party can call to speak to the child no more than once per day.

The child shall also be provided with a contact number for the non-travelling parent so that he can contact the non-travelling parent at any reasonable time he wishes. [ 76 ] The parties will continue to communicate only by email except in emergencies under the same terms as ordered by Justice Yungwirth in her order of November 24, 2016. Specifically, the rules respecting communication between the parties, are as follows: Except as otherwise provided in this Order, the parties shall communicate only by email in accordance with the following rules:

a) There is a maximum of one email per day from either party;

b) There is a maximum of one issue per email;

c) There is a maximum of 40 words per email;

d) The recipient of the email must respond within 24 hours but shall not respond within 3 hours;

e) Only topics pertaining to the child shall be addressed;

f) The emails shall be future-focused and polite;

g) A party’s response to an email message from the other party shall consist of “yes”, “no”, or a counter-proposal;

h) In emergency situations that immediately affect the child and cannot wait, the 3-hour rule and one email per day rule shall not apply;

i) In extreme medical emergencies for the child, telephone contact between the parties shall occur as soon as possible. If the party making the telephone call cannot reach the other party by telephone, that party will leave a message and will also send an email to the other party; and

j) Neither party will show the email messages to the child or discuss them with the child. [ 77 ] Both parents will communicate with one another in a respectful fashion and neither shall ever say or write anything derogatory about the other parent to the child or to the attention of anyone if such communication could reasonably be heard, obtained or otherwise perceived by the child. Neither shall comment in any fashion about the other on any form of social media or in any other public forum.

Nor shall either comment in any fashion about the other parent’s behaviour to the child’s teachers, the school administration at his school, or any coaches or instructors that he may have at any extra-curricular activity. [ 78 ] The restraining order granted by Justice Gill on March 10, 2017 will continue until September 1, 2017. It may be renewed on application by either party. [ 79 ] There will otherwise not be a police enforcement clause. [ 80 ] Both parties will encourage and facilitate the child’s access with the other parent.

Neither parent will leave the decision about whether to go to the other parent’s in the child’s hands. He is too young to be making such decisions and should not have to take that responsibility. [ 81 ] If either parent breaches the terms of this access order by refusing to allow the other parent their designated time with the child, such an action, on proof, will be a contempt of court and may be punishable by this Court. Neither party will involve the police to enforce this order.

It is too traumatic for the child to have this happen. [ 82 ] The provisions of this judgment respecting parenting time will come into effect on Tuesday, April 18. 2. Child Support: [ 83 ] Both ongoing and retroactive child support are at issue. i. On-going Child Support: [ 84 ] Neither parent had filed their 2016 income tax return as of the trial date, although both had received and exchanged T4 statements. Mr. Sahni orally estimated his 2016 earnings at $45,000. Ms. Sahni estimated her 2016 earnings to be $38,000.

I accept these estimates for the purposes of setting on-going child support for the next few months. [ 85 ] Based upon these incomes, the amount payable per month for child support is $359 per month by Mr. Sahni and $296 per month for Ms. Sahni. Because the parents share parenting, on an ongoing basis beginning May 1, 2017, Mr. Sahni should pay to Ms. Sahni the set off amount of $63 per month. [ 86 ] The parties will exchange a complete copy of their completed 2016 income tax return as soon as they have been filed but in any event no later than May 1, 2017.

As soon as each party receive his or her 2016 notice of assessment for 2016, that party shall provide it to the other party. By no later than July 1, 2017, the parties will re-calculate the actual amount payable for 2017 based upon the notices of assessment and will begin paying child support in accordance with that revised calculation beginning on July 1, 2017.

If there has been an over-payment or under-payment for 2017 based upon the calculations done in accordance with the notices of assessment, the amount payable will be adjusted to take into account the over-payment or under-payment in such a fashion that the over-payment or under-payment will be corrected at a rate of $10 per month until the over or under payment has been repaid in full. [ 87 ] In each succeeding year, the parties will exchange completed income tax returns by no later than May 1 of that year and the related notices of assessment by no later than July 1 of that year.

In future years after 2017, the parties will register in the child support recalculation program so that the calculation of child support payable can be dealt with in the most cost efficient manner possible and without the necessity of any court application. ii. Retroactive Child Support and Spousal Support: [ 88 ] Ms. Sahni began to pay child support in the amount of $162.00 per month in October 2014. This was based upon Mr. Sahni’s income being found to be $38,000 per annum and Ms.

Sahni’s income being found to be $18,000 per annum. [ 89 ] In a decision made February 16, 2017, the case management judge made a very helpful order in respect to these parties’ obligation to pay child support. This order was based upon the parties’ agreements as follows:

(

a) The child resided primarily with Ms. Sahni from February 13 to July 12, 2013 (a period of five months) (

b) The child resided primarily with Mr. Sahni from July 12, 2015 to December 31, 2013 ( a period of 7 months). (

c) The child resided primarily with Mr. Sahni throughout 2014 and 2015 (

d) In 2013, Mr. Sahni’s guideline income was $41,270 and Ms. Sahni’s was $4,630 (

e) In 2014, Mr. Sahni’s guideline income was $43,614 and Ms. Sahni’s was $21,722 (

f) In 2015, Mr. Sahni’s income was $50,185 and Ms. Sahni’s was $31,417 [ 90 ] Ms. Sahni claims spousal support for the period from February to July 2013. Mr. Sahni claims that Ms. Sahni was intentionally under-employed during that period and suggests that I impute income to her. [ 91 ] I decline either to order spousal support or to impute income to Ms. Sahni during that period. Mr. Sahni said during argument that he paid the mortgage, the utilities, and the insurance on the house while the child and Ms. Sahni resided there in 2013, after the separation and until Ms. Sahni left for India. Ms.

Sahni argued that he had missed some mortgage payments and these had to be paid out of the proceeds when the house was sold. The evidence in respect of this was so incomplete as to be almost non-existent. [ 92 ] Whatever actually happened, without a complete record, it is very difficult for me to determine exactly what Mr. Sahni paid on Ms. Sahni’s behalf. However, the parties appear to agree that in 2013, Mr. Sahni paid at least some of the mortgage and other payments on the house in which Ms. Sahni resided. This was a benefit to Ms. Sahni.

These parties did not have big incomes in 2013; I suspect money was very tight on both sides. In the circumstances, I decline to order spousal support payable. [ 93 ] Neither will I find that Ms. Sahni was under-employed in 2013. Again, the evidentiary record is incomplete. However, it is clear from her evidence that Ms. Sahni was surprised to be served with a Statement of Claim for divorce on her return from a trip to India in February 2013. She may well have quit her previous employment in order to travel to India, as is asserted by Mr.

Sahni, but there is no evidence she did so in order to avoid paying child support. Indeed, what evidence there is, points to her going to India to try to get counsel from her father respecting the failing marriage. In the circumstances, no one could reasonably have expected her to become immediately employed, given that she and Mr. Sahni had just separated and she had the child in her full time care. [ 94 ] Mr. Sahni should have paid child support in the amount of $326 for 5 months (February to July) in 2013. He did not. Ms. Sahni’s income in 2013 was too low for her to have been obliged to pay child support.

Thus, Mr. Sahni owes arrears of child support in the amount of $1,630 for 2013. [ 95 ] For 2014, Ms. Sahni should have paid child support in the amount of $189 per month or a total of $2,268 for the year. [ 96 ] For 2015, Ms. Sahni should have paid child support in the amount of $251 per month or a total of $3,012 for the year. [ 97 ] For the period from April to December 2016 and for January to April 2017, Ms.

Sahni claims that she had access to the child for more than the requisite 40% of the time and that, therefore, child support should be calculated based upon the parents sharing parenting time. [ 98 ] She says, based upon the order for parenting time made in March 2016, she effectively had the child for 168 out of a total of 336 hours a week. I am not sure where these numbers come from. [ 99 ] By my calculations, there are only 168 hours per week (24 multiplied by 7) and 722 hours per month (168 multiplied by 4.3 weeks). By the order of the case management judge made March 16, 2016, Ms.

Sahni had access to the child each Tuesday and each Thursday from school dismissal to the beginning of school the next day. I did not have any evidence about exact times of dismissal and recommencement of school but assume for the sake of this calculation that school was dismissed at 3 pm and recommenced at 9 am the next day. That would be a total of 18 hours on each of those two days or 36 hours per week or 155 hours per month. In addition, she had access every second weekend from Friday at the end of school until Monday at the beginning of school.

Using the same assumptions respecting school dismissal and beginning times, this works out to 66 hours every second week or 139 hours per month. The total would be 294 hours per month. By my calculations, this works out to just over 40% of the month. This calculation does not take into account the extra days, during the summer and other holidays when Ms.

Sahni had the child in her care. [ 100 ] I conclude that there has been a shared parenting situation since April 2016. [ 101 ] By this order, I set child support payable for 2013 and vary the amount of child support payable for 2014, 2015, 2016 and until April 30, 2017. I direct counsel for the Defendant Ms. Sahni to calculate the arrears or over-payment made and, once this has been determined to do the following. If there has been an over-payment by Ms. Sahni to Mr. Sahni, I direct that Mr. Sahni repay this over- payment at the rate of $100.00 per month commencing June 1, 2017.

So long as he makes these payments regularly, I request that the Maintenance Enforcement Program (“MEP”) take no other collection proceedings. [ 102 ] If there has been an under-payment by Ms. Sahni to Mr. Sahni, I direct that the under-payment be set off against the child support payable by Mr. Sahni on an on-going basis until the amount underpaid, has been paid in full. 3. Other Matters: [ 103 ] The parties requested that I deal with some other minor matters.

[ 104 ] There is an RESP in both parties’ names for their son’s education. I direct that this RESP be maintained and not collapsed by either party until it is used for his education. Both parties are entitled to receive statements respecting this account. Either party may commence another RESP account in their own name for the benefit of the child. If either party does so, they are required to give notice to other party by email that they have done so and to provide the name and location of the financial institution where such RESP is held.

Neither shall be required to disclose any information to the other party about the amount of contributions to this individual RESP or its accumulated value. [ 105 ] The child’s present Canadian passport has expired. Neither party can apply for a new passport for him from Canada or from any other jurisdiction, without the consent of the other party, which consent shall not be unreasonably withheld. The party that applies for the passport and pays for it shall have possession of the passport.

If either parent wishes to travel outside the country with the child and obtains the other parent’s approval to do so, the travelling parent shall be provided with the child’s passport at least one week prior to the travel dates. The non-travelling parent will also provide the other party with a letter of permission sufficient to permit the travelling parent to take him out of the country.

After travel has been completed, the travelling parent will return the passport to the other parent, if the other parent had the passport in his or her possession immediately before the travel. [ 106 ] The mother applied to hyphenate their son’s last name to include her maiden name. The father was opposed. The child does not have a middle name. I order that the child’s name be changed so that his full name will be [child’s first name] Nagpal Sahni. Nagpal shall be his middle name and shall not be a hyphenated part of his last name. [ 107 ] Costs may be spoken to, if desired.

Heard on the 10 th – 13 th days of April, 2017. Dated at the City of Edmonton, Alberta this 28 th day of April, 2017. D.C. Read J.C.Q.B.A. Appearances: Mr. Gaurav Sahni, on his own behalf for the Plaintiff Katie Noel, Katie Noel Professional Corporation for the Defendant, Ms. Sahni