JJB v DAL, 2017 ABQB 759

Court of Queen’s Bench of Alberta Citation: JJB v DAL, 2017 ABQB 759 Date: 20171207 Docket: FL03 28736 Registry: Edmonton Between: JJB Applicant - and - DAL Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] JJB applies by way of a special chambers application for various changes in the parenting arrangement for the parties’ child KTL. JJB and DAL are KTL’s parents. They cohabited briefly after KTL was born, but soon separated.

According to JJB, she has been the primary parent for ten year old KTL since his birth; according to DAL they have had a shared parenting arrangement since the child’s birth. Background [ 2 ] For the purposes of this application, the parties agree on very little. Until July 2016, the parties’ parenting plan appears to have been satisfactory to both of them. The arrangements basically involved KTL spending a lot of time with his father when his father was in town, and living with his mother when DAL was working away.

The parties disagree over the extent to which DAL was away, and when his employment arrangements changed such that he began to work regular weekday hours in Edmonton.

[ 3 ] In July 2016, at DAL’s request, the parties entered into a consent order that provided that KTL would be with his mother from after school Mondays until she dropped him off for school on Fridays. DAL would pick KTL up from school Friday and drop him off at school Monday morning. In addition, DAL would pick up KTL from JJB’s home every Tuesday through Friday mornings at 8:15 and take KTL to school. He would also pick KTL up from school Monday through Thursday and take him to after-school activities, or to DAL’s home if there were no activities.

JJB would pick KTL up from DAL’s home between 5:30 and 6:00 pm, after she finished work, Monday through Thursday nights. [ 4 ] Essentially, DAL had all weekends with KTL as well as every day after school from 3:30 or so until 5:30 or 6 pm.

JJB would have KTL Monday through Thursday from 5:30 or 6 pm until DAL arrived the next morning at 8:15 to take KTL to school. [ 5 ] To their credit, the parties have been able to agree on a division of holiday times, and there is no dispute over that on an ongoing basis. [ 6 ] JJB applied by way of a notice of application filed August 28, 2017 to vary the parenting arrangements to give her every other weekend. She says in her affidavit in support that she was pressured into agreeing to the

schedule in the 2016 consent order, and realized after it was entered that she did not have any of the “fun” time with KTL. She has other concerns, relating to the involvement of DAL and his new partner at KTL’s school, as well as DAL’s involvement with KTL’s homework. [ 7 ] DAL filed an extensive affidavit in response on October 13, 2017. He disputes that KTL was ever in his mother’s primary care and says that from birth, he and JJB have shared parenting on an equal basis.

He complains that JJB has involved the police when he has not let her take KTL on her time because of circumstances he concluded made it in KTL’s best interests not to go with his mother. [ 8 ] The parties differ on whether DAL has been willing to allow JJB access to KTL on weekends. [ 9 ] A complicating feature in the parenting arrangement is KTL’s apparent commitment to hockey. Hockey appears to dominate his out-of-school time, involving several practices a week and two games a week, plus tournaments. He attends programs during the summer months as well, to prepare him for the winter schedule.

His hockey activities are supported by both parents, and his father is an assistant coach. [ 10 ] In addition to hockey, KTL plays soccer and other sports. He is taken to these activities mainly by his father, as most start before JJB picks him up at DAL’s house between 5:30 and 6 pm or on the weekends, which are currently DAL’s time. Positions of the parties [ 11 ] JJB wants to have alternate weekends with KTL. She recognizes that having this additional time with KTL would reduce DAL’s time with the child. She is thus prepared to give DAL Monday and Tuesday following his weekend with KTL.

That would mean that DAL would pick up KTL after school Friday and JJB would pick KTL up from DAL’s house on Wednesday afternoon. That would give DAL Monday and Tuesday nights every other week, to offset the loss of every second weekend. [ 12 ] DAL recognizes that the existing

schedule may not be fair to JJB because she has no scheduled weekend time. He is concerned about losing time he has with KTL. He proposes that the parties share parenting on a week-on/week-off basis. JJB’s week would start when she picks KTL up from DAL’s house between 5:30 and 6:00 pm on Monday. It would end when DAL picks KTL up from JJB’s house at 8 am the following Monday.

However, his 8:00 am pickups would continue every weekday morning, and he would pick KTL up from school every weekday afternoon and keep him until JJB arrived between 5:30 and 6:00 pm. [ 13 ] For DAL’s week, he would pick up KTL from JJB’s residence at 8:00 am Monday morning, and keep him until JJB picked him up from DAL’s residence late on the following Monday afternoon. [ 14 ] For JJB, the problem with DAL’s proposal is that she would lose nighttime hours with KTL. The present

schedule has KTL with her Monday through Thursday evenings and nights, and with DAL Friday through Sunday evenings and nights. Over a two-week basis, she has eight nights and DAL has six. [ 15 ] If she were to agree to DAL’s proposal, she would only have seven nights over a two-week period and would have to go a full week without spending much time with KTL. She says that will be hard on her and KTL. [ 16 ] There was some discussion at the hearing as to whether JJB would “trade” DAL the Monday and Tuesday evenings and nights following his weekend, should they begin to share weekends on an alternating basis.

That suggestion was ultimately not acceptable. [ 17 ] For DAL, he is unwilling to lose three nights and two full days every other week and get nothing in return. If that were to occur, he would have only three nights and two full days every other week. That to him is unfair, considering all of the before-school and after-school driving he does and the extra parenting work resulting from him having KTL every day after school.

Case law [ 18 ] JJB’s lawyer referred to two cases, Zukiwski v Benson , 2006 ABQB 667 , and Eberle v Pascoe , 2009 ABQB 137 . [ 19 ] Zukiwski v Benson involved shared parenting between parents with “ongoing enmity.” Burrows J set out an excellent formula for parenting decisions, which I heartily endorse: [12] The parent with whom the child is residing shall decide who the child will associate with, consent to health related treatment for

the child, give consent of a parent or guardian, receive and respond to notices to a parent or guardian, deal with any legal proceedings relating to the child, appoint a person to act on behalf of the guardian in case of emergency or temporary absence and receive any health, education or other information that may significantly affect the child, when the need for such action arises during the time the child is residing with that parent.

Where the decision will impact significantly on the other parent, the deciding parent shall consult with the other parent before making the decision, unless it is impractical to do so. The parent taking any action of the type referred to shall inform the other parent of the action taken in writing. I direct that a log book containing such notices be passed between the parties with the child.

Decisions in relation to the child’s education, the child’s extracurricular school activities, the child’s cultural upbringing, and the child’s spiritual upbringing are to be made by the parties cooperatively after consultation. If necessary consultation between the parties in relation to these matters may be by written communication. [ 20 ] Eberle v Pascoe reinforces the need to consider the best interests of the child, and noted that continued shared parenting required the parents’ cooperation to ensure that the child “achieved the best possible success in school” (at paragraph 15).

That does not necessarily mean that the parents must share homework responsibilities. Analysis [ 21 ] It is clear from the dynamics that JJB is threatened by the increasing role JJB’s new partner plays in KTL’s life.

JJB is resentful that the new partner volunteers at KTL’s school and provides care for KTL when he is on DAL’s “time” but when JJB would be available to take KTL herself. [ 22 ] JJB is also concerned about being squeezed out of a meaningful role in KTL’s life because DAL is doing homework with him every day after school and takes KTL to almost all of his recreational activities. [ 23 ] JJB wants a right of first refusal for anytime DAL was not able to provide care for KTL instead of KTL being with DAL’s partner, as well as to be able to take KTL to his activities when they are on her time.

She wants some sort of prohibition against DAL doing all of KTL’s homework. Additionally, she wants more opportunities to volunteer for activities at school. [ 24 ] It is also clear that DAL is concerned about structure for KTL and control over his activities. It is very important to him that KTL have routine and stability, including getting his homework done right after school and having dinner at a regular time. He wants his partner to have a fulsome role in parenting KTL with him.

DAL sees himself as the more involved and available parent to KTL. [ 25 ] DAL has arranged his life to be able to take KTL to school, pick him up from school, and take him to all of his regular activities. He does KTL’s homework with him and gives him dinner every night. Because of JJB’s work schedule, she cannot get KTL to school or collect him from school herself. She has a two-year-old child and has responsibilities to get her to and from child care and activities, as well as look after KTL when he is with her. [ 26 ] It is certainly unfair that JJB not have regular weekend time with KTL.

She has indicated that her work

schedule gives her every other weekend off. In my view, she should have weekend time with KTL. [ 27 ] Should there be some compensating time for DAL out of the loss of every other weekend? Without giving DAL some additional time, JJB would end up with 11 of 14 nights, as well as two full days within that period. But DAL also has two to two and a half hours of quality time with KTL every school day. [ 28 ] I see the exercise I am tasked with as one of satisfying the parents in their quest for equality. One of the pieces of the puzzle that is missing is how KTL feels about all of this. He is ten.

Currently, he sees his father every day, but for holiday times spent with his mother. He sees his mother 8 days out of 14, plus other times when his mother is able to attend his weekend activities. [ 29 ] His mother’s proposal has him see her 12 days out of 14 , and his father 12 days out of 14.

Both parents would have the opportunity to see him on their “missing” days. [ 30 ] His father’s proposal has him see his father 11 days out of 14 and his mother 8 days out of 14. [ 31 ] I use these totals based on the fact that both proposals have DAL continue to take KTL to school every weekday morning and pick him up from school every weekday afternoon.

On either proposal, the only days DAL would not see his son would be the Saturday and Sunday KTL is with his mother. [ 32 ] On JJB’s proposal, she would see KTL every day but for the Saturday and Sunday KTL is with his father. [ 33 ] On DAL’s proposal, JJB would only see KTL on eight days, as on DAL’s week, she would not see KTL after Monday morning before school until the following Monday after school. [ 34 ] Of course, none of this analysis deals with hours of parental time. How counting hours has anything to do with KTL’s best interests is not clear to me.

Both the Divorce Act and the Family Law Act recognize that it is generally in a child’s best interests to maximize the child’s time with each parent. [ 35 ] That, however, does not equate to equalizing hours or counting the minutes. That is an exercise that has been driven by

section 9 of the Child Support Guidelines , which provides an incentive for a payor to prove that he or she has the child or children at least 40 percent of the time so there can be an offset of child support. [ 36 ] That has led to parents counting “responsible” hours such that the time a child is sleeping or is in school is attributed to the parent in whose house the child is sleeping, and school time depends on who dropped the child off at school. Again, none of this has any particular relationship to the best interests of the child other than trying to find a fair balance for financial support.

[ 37 ] There has been no voice of the child report. There is no information as to how KTL is doing in school. There is no information on the level of KTL’s happiness or stress levels. The absence of this type of evidence is that the present arrangement works fine for him; any adjustment is for the benefit or convenience of his parents. [ 38 ] Parenting studies that have come to my attention indicate that it is not the quantity of time a child spends with each parent that determines the strength of the bond between the child and that parent; it is the quality of the time spent.

The frequency of contact is more important than the length of the contact. [ 39 ] I am thus not going to agonize or jump through hoops trying to equalize parental time. These are both good parents who are well bonded with KTL. They themselves have been unable to arrive at a shared parenting arrangement, but their efforts seem to have been focused on what works within their schedules and maximizing their own role in KTL’s life and their own time with KTL. [ 40 ] As I observed during the hearing, it is not a court’s role to determine which parent does homework with a child.

It would be folly for me to weigh in on that subject absent evidence from the child’s school or an educational psychologist that some intervention is necessary. Similarly, placing restrictions on a parent’s or step-parent’s abilities to volunteer at school or be involved in a child’s extracurricular activities would be ill-advised, absent evidence of alienation or some sort of harm to the child. That evidence does not exist. [ 41 ] JJB needs to involve herself more in KTL’s homework and at school, if she wants more of a role.

It is not DAL’s obligation to back off; it is JJB’s responsibility to take the opportunities she has to do more. [ 42 ] Rights of first refusal may be appropriate where there are regular and predictable times when a parent may be able to step in instead of third parties or child care providers, but there is insufficient evidence that these occurrences are regular.

My impression is JJB’s motivation is to limit DAL’s new partner’s time with KTL, and that is no good reason to interfere in parenting arrangements that have worked quite well for the nearly ten years the parents have parented separately and not together. [ 43 ] The only change I make to the order from July 2016 is with respect to alternating weekends. JJB shall be entitled to pick KTL up from DAL’s house every other Saturday morning at 9 am and keep him until DAL picks KTL up Monday morning at 8 am to take him to school.

To partly offset JJB’s additional time, on DAL’s weekend, he will pick KTL up from school on Friday and keep him until JJB picks him up at DAL’s house the following Wednesday afternoon between 5:30 and 6:00 pm. [ 44 ] That will mean that KTL will still sleep at JJB’s house 8 nights out of 14 and at his father’s house 6 nights out of 14. KTL will sleep at his father’s house every Friday night, and from Friday night until Wednesday every other week. [ 45 ] JJB will have every other weekend from 9:00 am Saturday until DAL picks KTL up Monday morning to take him to school.

The longest stretch JJB will have to go without seeing KTL is five nights. [ 46 ] I am not going to weigh in on getting KTL to his activities. It seems to me that DAL should be responsible to get KTL to hockey events, as those are shared activities. If JJB can attend those functions and take KTL directly home from those functions, so much the better. But the parents are going to have to organize themselves to ensure that the pickups and drop-offs are timely and cause the least amount of stress to KTL.

He needs the consistency of knowing that he will be taken to his events on time and be prepared for them. [ 47 ] For events that begin on JJB’s time with KTL, she is responsible for getting KTL there. If she cannot, then she should make prior arrangements with a responsible adult or with DAL to ensure KTL gets to the event and gets home from the event. [ 48 ] I leave it to the parties to make reasonable arrangements for long weekends, school breaks, holidays and the summer months.

They told me that they had been able to do so and did not need court direction on that. [ 49 ] It seems to me that before any further court applications are made to alter the parenting

schedule in any significant manner, there should be a voice of the child report obtained in some fashion. I am sure that DAL and JJB are excellent parents, but this application has focused on their needs, not KTL’s best interests. This direction does not prevent the parties from reaching their own agreement on scheduling matters and participation in activities. In fact, this order encourages them to do so. This direction does not apply to relatively minor matters such as out-of-country travel, and it does not apply to disputes over parenting decisions. [ 50 ] I note that there has been no disagreement between the parties as to

section 3 and

section 7 child support. If issues arise over these matters, the parties may apply without obtaining a voice of the child report. Decision [ 51 ] The parenting

schedule ordered by Sulyma J in July 2016 shall be amended in accordance with paragraph 43 of this decision. [ 52 ] I also direct that before any further application relating to a significant change in the parenting

schedule there be a voice of the child report. [ 53 ] Applications relating to parenting decisions, out-of-country travel, child support or urgent matters do not fall within the above direction. Supplemental matters [ 54 ] Since writing the above, I have been made aware that the parties are having difficulty settling the terms of the order. Issues

have arisen over Christmas and over scheduling appointments for KTL. I am prepared to resolve the Christmas issue through an exchange of correspondence. [ 55 ] With respect to scheduling appointments, both parents are joint parents. There is far too much emphasis on “whose time it is.” That has nothing to do with KTL’s best interests and is all about control. When KTL is at school, he is under both parents’ control. That means that either parent may

schedule appointments for KTL that are in his best interests. Costs [ 56 ] There has been mixed success on this application so no costs are awarded. Heard on the 23 rd day of November, 2017. Dated at the City of Edmonton, Alberta, this 7 th day of December, 2017. Robert A. Graesser J.C.Q.B.A. Appearances: Lorraine M. Snyder Skovberg Hinz for the Applicant DAL, Respondent on his own behalf