SDK v ALK, 2018 ABQB 981

Court of Queen’s Bench of Alberta Citation: SDK v ALK, 2018 ABQB 981 Date: 20181130 Docket: 4810 022379 Registry: Red Deer Between: SDWK Plaintiff/respondent/cross-Applicant - and - ALK Defendant/applicant/cross-Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.S. Little _______________________________________________________ A. Introduction [ 1 ] This is Ms. K’s application to reduce Mr. K’s parenting time of their son Z, who is now seven, from “reasonable and generous” to alternate weekends. Mr. K cross-applies for shared parenting.

Both parties seek clarification of child support payments depending on the result of their applications. B. Background [ 2 ] Their 2012 divorce judgment ordered that the parents “share parenting time”: the child was to reside primarily with Ms. K, with reasonable and generous parenting time to Mr. K on reasonable notice.

[3] From 2012 until the summer of 2018, no further parenting orders were sought. As a result of concerns Ms. K had about Mr.K’s conduct, she originally scheduled this application for morning chambers in July, 2018. It was heard in August, 2018, at which timean interim Order was granted providing for shared parenting on a week on week off basis. Ms. K has filed an appeal of that Order on theground, among others, that it made substantive changes to parenting in morning chambers in non-emergent circumstances. But she is notpursuing the appeal pending the result of this application. [4] One of Ms.

K’s major concerns about Mr. K’s conduct was that as a result of an incident involving his girlfriend in May,2018, he was charged with assault causing bodily harm. His trial was scheduled for later this month (November, 2018). Counsel agreedthat I should hear this application but reserve judgment pending the outcome of the criminal trial which could affect Mr. K’s ability toexercise his parenting time. [5] Mr. K was acquitted at his trial on November 22, 2018. C. Parenting 1.

Material Change [6] Both parties submit that there has been a material change in circumstances of the parents and the child such that thethreshold test under s. 17 of the Divorce Act for a review of the divorce judgment is met. I find that while the passage of time alone doesnot necessarily always satisfy that test, in this case Z was an infant when the order was granted, and he is now in school. In addition, Mr.K’s work schedule, which previously required extended absences out of town, now allows him greater flexibility for parenting time.

Forthose reasons I find that there has been a material change in circumstances. [7] That being the case, Gordon v Goertz, (SCC), [1996] 2 SCR 27 tells me to embark on a fresh inquiry as tothe best interests of the child, considering a number of factors. 2. Previous Order [8] I start from the presumption that the 2012 divorce judgment was correct. It referred to parenting being “shared”. I interpretthat not to be the term of art “shared parenting”, meaning close to equal time with each parent, since Ms. K was given primary residenceand Mr. K was to have generous time on reasonable notice.

But it does suggest some parity between the parents [9] The previous Order was also a consent order, and therefore not to be lightly varied. [10] With respect both to the correctness of the first Order and the fact that it was consented to, however, it was given at a timewhen Z was about 16 months old. Ms. K had always been his primary caregiver. Mr. K at that time was working extended periods in theoil patch. It was reasonable both for the judge and for the parties to fix Ms. K with primary care and permit reasonable access to Mr.

Kwhen he could exercise it given his work schedule. [11] Arguably, varying that Order to provide specified alternate weekend parenting time would still see Mr. K’s time as reasonableand generous. But varying the Order to provide for shared parenting, notwithstanding the use of the word “share” in that Order, would bea significant change since Ms. K would no longer be the primary caregiver. 3. Views of Custodial Parent [12] Ms. K has been the custodial parent. [13] She started a relationship in 2011 with a new partner whom she married about three years ago.

They live on an acreage nearWhite Sands, about a half hour from Stettler, with a variety of pets and farm animals. Her parents live in Stettler. She and her newhusband both teach at Z’s school in Stettler where Z does well academically and is involved in extracurricular activities with his friends.She paints a word picture of an idyllic family life which is designed to provide a safe, stable environment for Z. [14] She contrasts that picture with Mr. K’s life in Red Deer which she paints as being unstable and unsafe. [15] Part of Ms. K’s concern appears to be the number of girlfriends Mr.

K has had since the divorce. By her count, there are four“long term” relationships, all of which ended badly and involved Z meeting a variety of women, children, and pets. The first relationshipwas from 2011 until 2015 with a woman who had three children and apparently was an alcoholic. Ms. K expressed concerns about thiswoman’s drinking when she was looking after Z.

[ 16 ] An incident with another girlfriend allegedly involved Z being awakened in the middle of the night to see his father dumping that girlfriend’s belongings on the front lawn. [ 17 ] Mr. K does not deny these relationships. He deposes, though, that he never introduces Z to his girlfriends until he is prepared to commit. And with respect to his first partner from 2011 until 2015, he deposes that Z got along well with her and her three children, all close to Z’s age. Further, he does not use his girlfriends as caregivers for any significant periods since he works from home.

And he deposes that the lawn incident did not happen – he helped that girlfriend move out with a professional mover when Z was not present. [ 18 ] The bulk of Ms. K’s evidence of instability in Mr. K’s home is hearsay from a seven year old child. I am satisfied that Mr. K’s explanations for the incidents related to Ms. K by their son show that Ms. K’s concerns are a reflection of her different expectations for her son’s home environment but that the environment Mr.

K creates is just different and not damaging. [ 19 ] From the evidence of the parties, I conclude that had she had genuine concerns about how her son was affected by the number and nature of his father’s relationships, particularly the shorter term relationships from 2015 to date, Ms. K would have made this application earlier. [ 20 ] Her main concern is that in May, 2018, Mr. K was charged with assault causing bodily harm against his then girlfriend. Child and Family Services contacted her about the incident and recommended that she review her parenting situation. [ 21 ] Mr. K deposes that he informed Ms.

K about the May incident the day after it happened and began counselling, which he continues. Z was not in his care at the time of the incident. Mr. K has not been contacted by Child and Family Services. [ 22 ] Violence in the home cannot be condoned. But neither should one incident, for which Mr. K was found not guilty and which occurred when the child was not in his care, preclude him from continuing to parent that child or expand his parenting of that child. 4.

Existing Parenting Arrangements [ 23 ] Notwithstanding that the 2012 divorce judgment has never been formally amended, the parties have agreed to a variation of the parenting arrangement. Counsel were initially involved in the process of documenting the variation, though the parties concluded it themselves. [ 24 ] In late 2015, the parents agreed in writing that Ms. K would retain primary care and that Z would go to kindergarten and school in Stettler. They also agreed to work with Mr. K’s work

schedule toward “promoting a parenting

schedule that allows for more equal time spent with Z with the weekly exchanges to occur on Wednesdays or Thursdays”. It was stated to be a temporary measure without any specific timeline. [ 25 ] This was the agreement in place at the time of the May, 2018 incident which gives rise to this application. [ 26 ] Mr. K deposes that since that agreement, Z has been in his care at least 40% of the time and attaches to his affidavit calendars showing his calculations. Ms. K disputes the accuracy of his calculations, arguing that he counts as full days any days when he saw Z or had him for part of the day.

Her calculations show that Mr. K had Z in his care for periods ranging from 28% to 53% for an average of 38.4% for the twenty months from November, 2016 to June, 2018. For the previous periods, he had Z about 30% of the time. [ 27 ] Even accepting that Ms. K’s calculations more accurately reflect the times when each parent was actually responsible for parenting Z, it is clear that Mr. K has been more than an alternating weekend parent ever since the divorce judgment and particularly over the 20 months preceding this application. 5.

Relationship with Each Parent [ 28 ] Each of the parents points fingers at the other respecting their historical drinking or drug problems or mental health issues and that that is why Z comes home from each household tired. [ 29 ] Nothing in the material of the parties suggests to me that Z has a greater attachment to one or the other or that either is an unfit parent. 6. Disruption of the Child [ 30 ] Ms. K expresses a concern that a week on week off regime would be disruptive for Z:

• He would miss many weekend activities in Stettler. • He would spend an inordinate amount of time in a vehicle from Red Deer to Stettler for school. • Mr. K would not wait around after school for Z’s weekday extracurricular activities. • His friends are mostly in Stettler. [ 31 ] Mr. K deposes that while his drive to and from school is about an hour, Ms. K’s is about a half hour, so that from either home, Z spends time getting to and from school. [ 32 ] Mr.

K in questioning states that he would wait for Z after school and enroll him in extra-curricular activities in Red Deer. [ 33 ] Essentially Z has been spending half or close to half time with each parent in two different cities. I do not see much disruption to Z in continuing that regime. While shared parenting works best when the parents live closer together than is the case here, I find that Z’s travel time to school is significant with both parents and should not be an impediment to shared parenting. Further, he has ties to both communities. Mr.

K has expressed an interest in strengthening those ties with Red Deer. In my view that is preferable to effectively restricting those ties to Stettler, so that if Z were to be with his father only on weekends, his father would be his only tie to that community. 7. Relationship with Current Custodial Parent [ 34 ] It is important that young children not be away from either parent for extended periods. Of particular significance here is that Ms. K teaches in Z’s school. She is never more than five minutes away from him on a school day.

In this case, even with shared parenting, Z would never be away from his mother except on weekends during the father’s parenting time. [ 35 ] As to keeping in touch with his father, Mr. K deposes that Z has too much access to electronics at Ms. K’s house, but that certainly means that he can stay in touch by e-mail or FaceTime. 8. Communication [ 36 ] Shared parenting requires good communication between the parents. Unlike many of these applications, there is no evidence of a failure of communication between these parents.

That is reflected in the fact that this is the first parenting application since the divorce and in the fact that they agreed amicably to a written agreement varying their parenting arrangement. 9. Conclusion on Parenting [ 37 ] Weighing these factors, I conclude that this is a situation where shared parenting can work and should be implemented as a means of recognizing the principle of maximum contact with both parents when that is in the best interests of the child.

We have two committed parents who live in relative proximity to one another (given Alberta geography), a seven year old who is used to spending extended periods with each of them and appears to be well-adjusted, and a mother who will see the child every school day even during the father’s parenting time. [ 38 ] The parenting time should be a week with each parent beginning after the Christmas school break. If the parties are unable to agree on when and where the exchanges take place, they shall make arrangements to return to me within 30 days of release of this judgment. D. Child Support [ 39 ] Ms.

K seeks child support from Mr. K from November 1, 2015. [ 40 ] The divorce judgment obligated him to pay $650 per month based on his income of $65,000. He paid that until November, 2015. In their November 2015 agreement, Mr. K’s annual income is fixed at $51,000 for child support payments of $415. [ 41 ] The agreement also included the following:

“Both parties will waive the child support payments owing for the months that each parent has Z more than 40% of the time.” [ 42 ] Despite the unfortunate wording of this clause, the meaning I attribute to it, because no income or support amount is referenced for Ms. K, is that Mr. K does not pay child support for a month if he has Z more than 40% of that month. [ 43 ] I have little information about the parenting time between November 1, 2015 and October 31, 2016. Mr. K. deposes that he had Z more than 40% of the time from November 1, 2015 but does not provide details. Nor does Ms.

K provide detail for this time period. I am therefore left with Mr. K’s assertion that no support is payable. [ 44 ] The only information I have to refute his statement about 40% generally from November 1, 2015 is the information given by Ms. K respecting the period after November 1, 2016. I accept her calculations that Mr. K’s time did not exceed 40% for 13 of those 20 months. [ 45 ] I will hold the parties to the bargain evidenced by their agreement. [ 46 ] That being the case, for the period November 1, 2016 through June 30/18, Mr. K owes child support of $5395 (13 x $415.00). 1. Calculation of Mr.

K’s Income [ 47 ] Mr. K is now self-employed. He earns his income directly from a numbered company (908) which he owns and controls. 908 has a 49% interest in Alberta Surface Control (ASC) and in Synister Energy Services (Synister). All three companies work in the oil field equipment rental business. 908 is the operator. ASC and Synister own and rent the equipment. [ 48 ] For the year ending November 30, 2017, 908 had net income of $66,000. Ms.

K seeks to add back expenses totaling $33,425 for a total available income for child support purposes of $99,425. [ 49 ] For the year ending November 30, 2017, ASC had net income of $41,650. Ms. K seeks to add half of this ($20,825) plus one quarter of its amortization and subcontractor expenses totaling $289,000 ($70,000) plus some minor benefits for a total available income for child support purposes of $90,900. [ 50 ] Synister has no income. Ms.

K seeks to add to his available income from Synister the sum of $95,000 representing the average of his available income from 908 and ASC. [ 51 ] His total available income would therefore be $285,000. [ 52 ] The better calculation is Mr. K’s of $79,600 which is the income of 908 plus a personal component of its corporate expenses. [ 53 ] He concedes that he receives personal benefits of about $13,600 from expenses claimed by 908.

I find his calculation of those personal benefits to be reasonable. [ 54 ] ASC flows its income to its shareholders. 908’s share of that income was $66,000, which shows up as 908’s income on its income statement and is attributed to Mr. K. Mr. K receives no benefit from any expenses claimed by ASC. [ 55 ] Synister appears to be only a flow through for Synergy and has no expenses. [ 56 ] Counsel for Ms. K argued that the fact that the financial statements for 908 and ASC had large retained earnings accounts meant that there was more money available to the shareholders than was shown on the income statements.

It must be remembered that retained earnings, representing the accumulated earnings of a corporation, can be something of a “barometer of corporate health and economic resilience” ( Potzus. v Potzus , 2017 SKCA 15 at para 92 ) but should not be used for income attribution. The analogy for individuals is that a net worth statement ought not necessarily to factor into child support calculations based on income unless it can be shown that significant financial assets are being frozen rather than employed to earn income. [ 57 ] I find that for child support purposes, Mr. K’s income should be fixed at $79,600. 2.

Calculating Mr. K’s Income [ 58 ] Ms. K’s 2017 income as a teacher was $74,000. [ 59 ] Mr. K deposes that she earns considerable extra income doing nails and hair from her home. I find Ms. K’s calculation in the $1500 range to be more plausible and fix her total 2017 income for child support purposes at $75,500. 3. Set-off

[ 60 ] Thus child support payable for shared parenting, effective January 1, 2019, should be calculated using $79,600 for Mr. K’s income and $75,500 for Ms. K’s income. A set-off would be appropriate in these circumstances. If the parties cannot make the required adjustments from Feehan J’s August, 2018 Order, they can make arrangements to see me within 30 days of issuance of this judgment. [ 61 ]

Section 7 expenses are to be borne in proportion to their respective incomes. [ 62 ] The Order should contain the usual mutual financial disclosure clause. 4. Sharing Transportation Expenses [ 63 ] I see no merit in Mr. K’s claim in his August 4, 2018 affidavit that Ms. K share in the expenses he incurs in transporting Z to school. Ms. K did not remove Z to Stetter - she has lived there since Z’s birth. The parties agreed that he would go to school in Stettler. And the parties did not address this issue in their written agreement.

Acknowledgments [ 64 ] I wish to thank both counsel for their excellent briefs and well-argued applications. These decisions are never easy, but well- organized material greatly assists in the decision-making process. Costs [ 65 ] The parties can make arrangements to see me within 30 days of issuance of this judgment if they cannot agree on costs. Heard on the 8 th day of November, 2018. Dated at the City of Red Deer, Alberta this 30 th day of November, 2018. J.S. Little J.C.Q.B.A. Appearances: Shauna D'Onofrio JD Law for the Plaintiff/respondent/cross-Applicant Caitlin Ledrew/Trista D.

Carey Schnell Hardy Jones LLP for the Defendant/applicant/cross-Respondent