Leikeim v Leikeim, 2018 ABQB 1031

Court of Queen’s Bench of Alberta Citation: Leikeim v Leikeim, 2018 ABQB 1031 Date: 20181218 Docket: 4801 149237 Registry: Calgary Between: Sureeporn Leikeim Plaintiff - and - Kenneth Leikeim Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice C.L. Kenny _______________________________________________________ [ 1 ] The parties were married on November 29, 2004 in Thailand. The wife was born and raised in Thailand. The husband normally resides in Canada and is a Canadian citizen.

The wife immigrated to Canada in 2005. [ 2 ] The parties separated on February 21, 2012. The husband is currently 55 years of age and the wife is currently 38 years of age. [ 3 ] There are three children of the marriage: G.L. – age 12 M.L. – age 10 A.L. – age 8. Issues [ 4 ] The issues before this Court in this trial are the following: 1) parenting arrangements with respect to the children; 2) retroactive and ongoing

section 3 and sec 7 child support; and 3) entitlement to spousal support and, if entitled, quantum and duration.

Parenting [ 5 ] The parties have agreed to share the holidays and to other parenting arrangements. The primary issues between them are the day to day parenting and decision making. The husband seeks shared custody of the children week on/week off. The wife wishes the current arrangements to continue wherein the husband has the children with him every second weekend from Friday after school to Sunday at 5 pm and overnight on Wednesday in the off week. [ 6 ] The parties did not obtain a voice of the child report nor did they apply to have counsel appointed for the children.

This would have been helpful given the ages of the children and the history of the matter. [ 7 ] The parties have been separated for six years. All of that time unfortunately has been in litigation. There have been 12 interim court orders. The matter was finally put into case management in early 2015 and this trial scheduled. History of Parenting [ 8 ] The oldest child was born in 2006, approximately one year after the wife moved to Canada. The husband was working full- time and the wife was at home. In 2007, the husband took a position in Qatar where the family moved. The second son was born in Qatar in 2008.

The wife was not happy in Qatar, so the parties moved back to Canada in 2009. [ 9 ] The husband eventually took a position that required that he fly in and out of Fort McMurray, Alberta. He advises that for the first year of that position, he was able to work in Calgary. After the first year, he started flying in and out – first on a 4/3 split each week and later on a 7/7

schedule with 7 days in Fort McMurray and 7 days in Calgary. When he was in Calgary he was not working, so was at home with the family. The wife confirmed that on his 7 days in Calgary, the husband would help with the children, do activities with them, shop with the wife and children and cook. The wife confirmed that the husband was good with the children and helped regularly with them. [ 10 ] The wife says their issues revolved around money.

Although she says that she regularly sent money to Thailand during the marriage for their joint account for retirement in Thailand or for her own account - it is not clear which - she says that the husband never gave her any money and that she had no access to cash, credit cards, bank accounts, or debit cards. The husband denies this. He says she had access to all of his credit cards, bank accounts, pin numbers and passwords to access the accounts. [ 11 ] In approximately August of 2011, the wife decided to leave the marriage. When she advised the husband, he was upset.

He says he had no idea that there were issues in the marriage. The wife agreed to stay in the marriage as long as the husband gave her $500 per month for her to spend any way she wanted and he also deposited $30,000 into her account or a joint account that she could access when she wished. This did not happen and the parties ultimately separated in February of 2012. [ 12 ] The parties entered into a consent order on April 13, 2012 whereby they agreed to share joint custody of the children and to share parenting - one week on and one week off with the exchanges to be on Friday afternoons.

They each also had one overnight with the children mid- week during their off week. This arrangement appeared to work most amicably for over two years until June of 2014. [ 13 ] The husband was working for a large company in Calgary at the time, but got laid off. He tried to find other employment in the city but eventually had to take a job in Yellowknife, NWT. He says leaving the city was not his first choice but it was either continue to have no job at all or take the one that was offered. He moved to Yellowknife at the end of June 2014.

This necessitated a change to the parenting arrangement. [ 14 ] An Order was granted on October 6, 2014, changing the parenting, on a without prejudice basis, such that the husband had the children every third weekend in Calgary, long weekends in Yellowknife, shared holidays along with other telephone, skype, and email contact. [ 15 ] When the husband returned from Yellowknife in June of 2017, he wanted to return to the shared parenting regime but the wife refused. That refusal resulted in this trial on parenting.

In the interim, by Order granted June 23, 2017, the husband’s parenting time changed to every second weekend as well as every second Wednesday overnight. There have been difficulties with these constant exchanges. [ 16 ] It would be fair to assume that had the husband not moved out of the city for employment, the shared parenting regime would have continued.

Although the test is always what is in the best interests of the children, the question really is whether that move to Yellowknife was a significant change in circumstances such that, upon the husband’s return to the City of Calgary, the agreed upon shared parenting regime was no longer in the best interests of the children. [ 17 ] During the trial, counsel for the wife argued that this is a high conflict matter and that shared parenting was inappropriate where there was high conflict and the parties could not communicate.

While this Court sees too many high conflict family law matters, I find that this is not one of them. Simply calling a matter high conflict does not make it so and such a mislabelling can create anomalous results. [ 18 ] One example of this is a requirement in one of the court orders that the parties exchange the children at a gas station near their mother’s home. This seemed odd, particularly because the mother does not drive.

When I asked her about this, she says she insisted that this clause be in the order because the husband would make up stories about what she said when the children were picked up and dropped off at home. When I suggested that perhaps it would be better for the children to do the drop offs and pickups curbside at her home, so communication was limited, she readily agreed that was fine. In my view, this is an example of a clause in an order that on the surface appears to indicate high conflict when in fact there is none.

[ 19 ] The parties had no problem with a shared parenting regime for two years after separation. The only thing that changed was the husband’s move to Yellowknife. Things were not perfect between the parties - they had disputes over extra-curricular activities for the children and problems with parenting times when the husband over-held the children or when the wife refused the husband’s parenting time. They had communication problems when the wife did not have the husband’s current email address or phone number.

There were times when the husband did not pay child support after his bank accounts were frozen and he failed to make alternate arrangements for the payments. The most significant factor causing the stress between the parents and thus impacting their children is the continued litigation which has lasted far longer than any family should be subject to. There are still serious property issues to be resolved almost 7 years post separation.

That is the same length of time the parties were together. [ 20 ] There is evidence before the Court, however, of very reasonable, mature email communication between the parties about the children. They discuss the children’s activities, they make arrangements to change the parenting times to accommodate other matters including extra times the wife needs to work, they discuss schooling for the children. They do not always agree on matters such as whether the children should take Spanish classes or one of the children should change schools.

However, these are discussions all parents are involved in and have to resolve either on their own or with outside assistance. The wife complains that on occasion, the husband will not respond to an email message. [ 21 ] The wife acknowledges that the children love both of them and miss their dad. There are letters and emails from the children indicating the same thing. [ 22 ] The children have their own email address and phone.

Either parent can contact the children at any time while in the other parent’s care and they do so. [ 23 ] It is also important to note that the parents have very different and important things they can contribute to the children’s upbringing and care. The wife is from Thailand and can immerse the children in Thai culture. She is diligent and worries about their schooling and homework. She is more regimented. The children have learning challenges, so both parents need to work on those and communicate about those issues in the children’s best interests.

The wife does not drive, so travel around with the children is somewhat more difficult for her. [ 24 ] The husband on the other hand likes to take the children out to play in the outdoors, go to parks and be much more active. He has this ability because he drives and is able to take them more places than the wife can. He often takes them to the library as they love to read and their reading skills need to be improved. He appears more easygoing with the children.

The children benefit from both of these parenting styles and clearly love being with each of their parents. [ 25 ] The Court was left with the overall impression at the end of the trial that this protracted litigation, the numerous court appearances and the issues involving property division have caused a stressful relationship between the parties. There is no evidence however that the parties do not both love and care for their children and want what is best for them.

The children clearly love both of their parents and want to spend time with each of them and the parents each acknowledge that. [ 26 ] The parties were asked by the case management justice to each file a proposed parenting plan for the Court for the purposes of this trial. Their plans are very similar other than the day to day care. The mother wants the children to remain primarily with her and see the father every second weekend and alternate Wednesdays overnight.

The father wishes to share the children 50/50 as was the arrangement after their separation, making the exchanges on Friday after school. [ 27 ] The husband has been residing with his parents in Calgary while trying to save money to get his own place. The children spend time with him there during his parenting time. This is not ideal and the husband hopes soon to have his own accommodation near the children’s schools that can accommodate all of them. He acknowledges that it is best for the children to remain in the same general neighbourhood where they have been residing because of their schools and friends.

The oldest child will be changing schools next year in any event, so both parents will need to work around that. The husband is required to travel on occasion with his current position, but he indicates that he can arrange to do that on the week when he does not have the children with him.

The Law [ 28 ] The Divorce Act , RSC 1985, c 3 (2d Supp) confirms that in making a custody order, the court shall take into consideration only the best interests of the children as determined by reference to the condition, means, needs, and other circumstances of the child (s 16(8)) and that the child should have as much contact with each parent as is consistent with their best interests (s 16(10)). [ 29 ] The mother asserts that the parties should not have shared parenting because of the high conflict and lack of communication.

Several cases were referred to: Richter v Richter , 2005 ABCA 165 , Rensonnet v Utti , 2016 ABCA 196 , and AE v TE , 2017 ABQB 449 . As I have already indicated, I do not consider this case one of high conflict. The parties do have communication difficulties primarily because the father does not always respond to email messages. He indicated that at times he has been without email. However, it appears that at other times he simply does not respond. In my view, those are matters than can be resolved by a specific order.

The parties sometimes disagree on what is in the children’s best interests, as all parents do, but that is not a basis to deny shared parenting. [ 30 ] The father points to TT v JT , 2012 ABQB 668 . In that case, Justice Graesser pointed out that communication difficulties are often factual issues that need to be sorted out, rather than a legal question that determines custody. In fact, equalizing parenting time may neutralize or minimize communication difficulties. Control issues will be minimized and the children will have an equal opportunity to develop a healthy relationship with both parents.

Decision on Parenting [ 31 ] There is no question that this litigation has not shown these parents in the best light. They have continually resorted to the

Court for various orders. With this order, the parenting and support issues will be dealt with, leaving outstanding only a final matrimonial property order. [ 32 ] The evidence before me shows that the children love and want to spend time with both parents. The father parented the children equally during the parties’ time together and for two years after the separation. Employment took him away from Calgary, requiring a change in day to day parenting. When he returned to Calgary, he wanted to co-parent the children again, but the mother refused.

Since that time, there has been a constant push and pull for control. The father feels that the mother controls his time with the children. He asks for additional time and is refused. When the mother needs extra assistance, for example when she has to work extra hours, the father will always take the children if he can. [ 33 ] The parents now both reside in Calgary, they both work full-time, they are both able to look after the children and attend to their extra activities, they are both capable and caring parents, and they each have different and important interests and capabilities to pass on to their children.

I see no reason why shared parenting would not be in the best interests of these children. In fact, shared parenting will deal with many of the exchanges between the parents that have not been helpful in the past. [ 34 ] However, the shared parenting regime will not commence until the father has his own residence that can accommodate him and the children.

The children are currently in two different schools and the father’s evidence is that he intends to find a place either between or near at least one of the schools so that the children remain in a familiar environment. [ 35 ] The parties will prepare a joint parenting order outlining the shared parenting regime that will commence once the husband has secured appropriate accommodation. Many of the other terms in the proposed parenting plans are already agreed between the parties and should be incorporated. The parties disagree on a few items.

My decision on those items is as follows: 1) The parties shall discuss all major issues with respect to the children. If they cannot agree, they will attend mediation or with a parenting coordinator prior to returning to Court. 2) All communication shall be by email or text. If there is no response to an email or text within 24 hours, the person sending the email or text is entitled to assume acknowledgment or agreement by the party receiving it. 3) Neither party will move outside the City of Calgary without providing the other party 60 days notice in writing of their intention to do so.

Such a move will be considered a material change in circumstances for the purpose of custody. 4) Either party shall be entitled to travel inside Canada with the children without consent provided they have given to the other party a minimum of 14 days notice of such a trip and a full itinerary including flight information, method of travel, destination and contact information. 5) Each party shall be entitled to travel internationally with the children without the consent of the other party upon providing 30 days notice of such travel along with a full itinerary including flight information, destination, where the parties are staying and contact information.

The other party will execute a travel authorization as provided within 15 days before the trip commences. All travel shall be during the parties parenting time unless written consent is obtained to infringe on the other parties parenting time. 6) The parties shall equally share all holidays. [ 36 ] As indicated above, the parties will wish to prepare a more extensive parenting order dealing with issues of communication, contact with third parties, activities, other professionals dealing with the children, etc.

In the event that disagreements arise on any of those other issues in preparing the order, I shall make the final determination. Retroactive

Section 3 Child Support [ 37 ] The parties agree on the retroactive

Section 3 support with the exception of one month. The wife claims retroactive support from March of 2012. The husband claims that the retroactive support should commence in April of 2012. The parties entered into a consent interim without prejudice order on April 13, 2012 in which it was agreed that child support would commence on April 1, 2012. It would be inappropriate to now go behind that order. The calculation of

section 3 child support arrears shall commence April 1, 2012 and the arrears are set at $7,344 which includes a payment of $896 for the month of December of 2018. Retroactive

Section 7 expenses [ 38 ] The parties have calculated the retroactive

section 7 expenses. The difference between their numbers relates to certain items that the husband says are not

section 7 expenses under the Child Support Guidelines . Most of the

section 7 expenses relate to childcare and school fees. The husband does not dispute these items for purposes of this trial. What is in dispute is extra-curricular activities at the YMCA. Ordinary extra-curricular costs are not included in the definition of

section 7 expenses under the Guidelines and I would not include them here. [ 39 ] The husband is also of the view that an income should be attributed to the wife over this period of time of $20,000 to $27,000 per annum, which would affect the proportionate sharing of the

section 7 expenses. From the fall of 2012 until the spring of 2017, the wife attended Bow Valley College to obtain a diploma in accounting. She says the program was full-time. She went to school every morning and every afternoon and therefore was unable to work. [ 40 ] Although it took her approximately five years to obtain this diploma, I am satisfied that she would have been unable to earn significant income during this period of time without sacrificing her schooling which has now allowed her to become completely self- sufficient.

[ 41 ] I therefore set the

section 7 arrears at $15,331.51. Ongoing

Section 3 Child Support [ 42 ] The parties acknowledge that the husband’s current income is approximately $73,000 per annum. On this income, the support payable by the husband for

section 3 support for the children is in the sum of $1410 per month. These payments shall commence on January 1, 2019. Once the parties have moved to a shared parenting arrangement as contemplated in this decision, the

section 3 child support will change to a set-off amount under the Guidelines . With a projected income for the husband in 2019 at $73,000 and a projected income for the wife for 2019 of $50,000, the set off amount due and owing to the wife by the husband is $438 per month. Ongoing

Section 7 expenses [ 43 ] At present, the wife’s income is approximately $50,000 and the husband’s income is approximately $73,000. The parties shall share the

section 7 expenses in proportion to their incomes. The

section 7 expenses include child care, required school fees, required bus fees to transport the children to school and any uninsured medical or dental expenses. The husband’s proportionate share is 60% and the wife’s share is 40%. Spousal Support [ 44 ] Spousal support was paid to the wife for a period of four months under a consent order dated April 13, 2012. Since that time, no further interim application has been brought by the wife for spousal support although there were 10 orders of the Court granted after that time including several consent orders.

Continued spousal support was not addressed in any of those orders. [ 45 ] The wife now seeks lump sum spousal support of $24,000. This has been calculated by counsel for the wife as representing a payment of $500 per month for a period of 4 years. The wife does not acknowledge any deduction for tax in this lump sum even though the husband would be entitled to a tax deduction were he to make regular periodic payments for spousal support.

The wife is currently employed, having finished her diploma program at the college, and is earning approximately $50,000 per annum. [ 46 ] The wife seeks spousal support on both a compensatory and non-compensatory basis. At this point, there is no entitlement to spousal support on a non-compensatory basis. The wife is fully employed. The question is whether she is entitled to any further spousal support on a compensatory basis.

The wife did have the primary care of the children for much of the time except for about three years – approximately 1 year when the husband was going back and forth to Fort McMurray and he would parent the children for half of the time that he was in Calgary as well as the two years when the parties shared parenting of the children. [ 47 ] The parties also moved to Qatar for 2 years for the husband’s employment and during that period, it was not possible for the wife to seek employment herself. [ 48 ] I am satisfied that the wife has suffered an economic disadvantage as a result of the marriage in particular the primary care of the children for much of the time as well as the move for the husband’s employment.

I fix spousal support at a lump sum of $10,000. Payment of Arrears [ 49 ] The parties advise that there is currently just over $70,000 being held in trust as a result of the sale of the matrimonial home. The arrears of

section 3 child support,

section 7 arrears and the lump sum spousal support shall be paid out of these funds and credited against the husband in the ultimate property distribution between the parties. Heard on the 5th – 6 th and 28 th day of November, 2018. Dated at the City of Calgary, Alberta this 18 th day of December, 2018. C.L. Kenny J.C.Q.B.A. Appearances:

Helen M.J. Banks, Banks Family Law for the Plaintiff Constancia Okolo, Fidelity Law for the Defendant