TL v RAC, 2020 ABQB 781

Court of Queen’s Bench of Alberta Citation: TL v RAC, 2020 ABQB 781 Date: 20201215 Docket: 4801 173106 Registry: Calgary Between: TL Plaintiff - and - RAC Defendant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice L. Bernette Ho _______________________________________________________ [ 1 ] The parties were married in July 2012 and separated early September 2016. There are two children of the relationship, currently 7 and 6 years old. [ 2 ] The Defendant father applied for a change in parenting, child support and spousal support.

He also asked for a direction that the children’s passports be held by him. The Plaintiff mother’s cross-application asked that outstanding issues be set down for trial and that the Defendant be required to comply with prior disclosure and cost orders. The Plaintiff sought a further order directing the Defendant to provide answers to undertakings given at a Questioning conducted in February 2020. Finally, the Plaintiff sought an order severing divorce from corollary relief.

I. Background [ 3 ] The parties have been engaged in a high conflict separation and several court orders have been issued notwithstanding that the parties voluntarily submitted to a third-party arbitration process to address issues arising from marital separation. The following is a

summary of some of the Court orders issued to date. There have also been at least six Court orders issued stipulating travel conditions for both the Plaintiff and Defendant with the children. (

a) March 9, 2017 – Justice Mahoney granted a Without Prejudice Order providing parenting time to the Defendant in Week 1 from Monday at 9 am to Tuesday at 5 pm and in Week 2 from Monday at 9 am until Wednesday at noon (the “Mahoney Parenting Order”). The Mahoney Parenting Order also provided that the parties have reasonable daily telephone access to the children prior to 5 pm. Parenting issues were otherwise adjourned to a one-hour domestic special to be heard in May or June 2017. (

b) March 16, 2017 – Justice Mahoney granted an Interim Without Prejudice Order requiring the Defendant to pay to the Plaintiff the uncharacterized amount of $3,000 per month representing both child support and spousal support (the “Mahoney Support Order”). The Defendant was to pay this amount on April 1, 2017 and on the first day of each month thereafter until further Court order. The Mahoney Support Order also provided that either party could apply to have the amount paid characterized as child support, spousal support or some combination thereof. (

c) October 31, 2017 – Justice Hughes (as she was then) adjourned the review of an Emergency Protection Order granted by Judge Lipton to a viva voce hearing on April 13, 2018. Justice Hughes also directed that the terms of the EPO remain in effect and that pick up and drop off of the children take place at a specific Starbucks location. The Defendant was permitted to come within 500 metres of the Plaintiff in order to facilitate the exchange of the children. (

d) April 13, 2018 – Justice de Wit granted a Consent Mutual No Contact Order that vacated and replaced the EPO. The No Contact Order required that the Plaintiff and Defendant have no direct or indirect contact with one another except in the case of an emergency dealing with the children, to advise about a change in the pick up or drop off of the children, or when in the presence of counsel, at the courthouse, or for the purpose of mediation or arbitration. All communications between the parties concerning the children was to be by email or text message. (

e) May 22, 2018 – Justice Eamon issued orders requiring both the Plaintiff and Defendant to provide answers to undertakings or disclose information. In regards to the Defendant, he was directed to provide to the Plaintiff any documentation missing from the Arbitration Award granted December 18, 2017 on or before March 30, 2018 failing which a penalty of $50.00 in costs per day was to be paid to the other side until the documentation was provided (the “Eamon Order”). (

f) July 17, 2020 – Justice Grosse suspended the Defendant’s parenting time outlined by the Mahoney Parenting Order as a result of an investigation being commenced into certain sexual assault allegations purportedly raised by one of the children. The matter was adjourned to July 22, 2020. (

g) July 22, 2020 – Justice Wilson vacated Justice Grosse’s order and granted the Defendant seven days of make up parenting time to run from July 23 to July 31, with the regular parenting

schedule outlined by the Mahoney Parenting Order to resume after July 31, 2020. Justice Wilson also added a police enforcement clause to all applicable parenting orders. (

h) August 24, 2020 – Justice Hollins issued a Family Docket Endorsement requiring the Defendant to provide outstanding undertaking responses from Questioning in February 2020, plus any other information ordered to be produced in the Eamon Order, by September 14, 2020. II. The Defendant’s Application A. Parenting [ 4 ] The Defendant asked for a change in parenting from what was outlined in the Mahoney Parenting Order. The Defendant proposed that he have parenting time with the children most of the week, with the Plaintiff having parenting time from Thursday at 9 am to Sunday at 9 am.

This would represent a significant change from the current parenting arrangement, as he would move from having the children 1 or 2 nights a week to having them for 4 consecutive nights a week. The Plaintiff’s time would then be reduced to 3 consecutive nights a week. i. Has there been a material change in circumstances? [ 5 ] The Defendant maintained that there had been a material change in circumstances necessitating a review of parenting because the telephone access provision in the Mahoney Parenting Order has not been adhered to since 2017.

The Defendant also submitted that the children are now in school and so he sees them less than originally provided for when the Mahoney Parenting Order was put in place. The Defendant currently only sees the children during lunch time and overnight on his stipulated days and evenings. [ 6 ] The Plaintiff denied that there had been a material change in circumstances in her written submissions.

The Plaintiff argued that the change in telephone access was brought about as a result of Judge Lipton’s Emergency Protection Order, which eventually resulted in Justice de Wit’s No Contact Order which outlined the specific circumstances when contact between the parties could occur. The Plaintiff further submitted that the telephone contact ended in October 2017 and therefore, this would not qualify as a material change in circumstances as it is now the status quo. [ 7 ] During oral argument, however, counsel to the Plaintiff acknowledged that the fact the children are now in full time school

constitutes a material change in circumstances. The Mahoney Parenting Order was put in place when the children were not yet in full time school, so the Defendant had full days with the children at the time. [ 8 ] I agree that there has been a material change in circumstances caused by the children now being in full time school which has resulted in the Defendant having less meaningful parenting time with the children. Given this, I am required to consider the evidence before me and decide what parenting arrangement is in the best interests of the children. ii.

What parenting arrangement is in the best interests of the children? [ 9 ] Despite there being a material change in circumstances, counsel to the Plaintiff submitted that the evidence does not support a move to the parenting arrangement proposed by the Defendant because of the degree of animosity and conflict that exists between the parents. He indicated that the Plaintiff would be agreeable to a shift in the days when the Defendant has parenting time in order to provide him with more meaningful time with the children, but the actual number of days should not be increased.

It was also argued that the Defendant has not otherwise provided evidence that his proposal would be in the best interests of the children. [ 10 ] Having considered the evidence filed by the parties and their oral submissions, I conclude that it is not in the best interests of the children to move to the parenting proposal advanced by the Defendant. [ 11 ] The parties are high conflict and I am not satisfied that they are in a position to effectively co-parent with one another given their inability to communicate with one another.

Our Court has recognized that conflict and hostility may stand in the way of giving effect to the maximum contact principle outlined by the Divorce Act , as the best interests of the child must be the predominant consideration: Resonnet v Uttl , 2016 ABQB 95 , aff’d 2016 ABCA 196 . The Defendant expressed a concern in his affidavits, and again during oral submissions, that the Plaintiff does not respond to him directly. Rather, her counsel answers queries on her behalf.

The Defendant indicated he would appreciate having an open and transparent relationship with the Plaintiff, but the EPO and recent sexual assault allegations, which were unsubstantiated, are significant roadblocks to achieving this goal. He argued that the Plaintiff’s role in these events should be considered. [ 12 ] The difficulty is that a lot of the Defendant’s evidence is in direct conflict with the Plaintiff’s evidence. For example, the parties describe entirely different accounts of the exchange that was scheduled to occur at Starbucks.

They provide entirely different accounts of the Defendant’s breach of the EPO, which the Defendant characterized as merely a “technical breach”. He alleged that he was set up by the Plaintiff. Regardless, the Defendant’s actions resulted in him being charged with two counts of breaching the EPO contrary to the Protection Against Family Violence Act and one count of criminal harassment contrary to section 264(2) (

a) of the Criminal Code . In my view, the parties’ conflicting evidence may only be addressed through a viva voce hearing of some sort, and ideally trial. [ 13 ] While the sexual assault allegations made earlier this year were not substantiated, the tone of the Defendant’s evidence expressing views about the Plaintiff is concerning.

Although the Defendant remains understandably upset by the sexual assault allegations, that does not justify him describing the Plaintiff as a “sociopath” in his September 17 Affidavit, particularly where an email from the investigating Calgary Police Detective suggested that there was an incident where the younger child touched the older child’s penis and the older child did express a concern about certain photos being taken. I am also concerned the Defendant has been openly discussing matters with the children.

The Defendant has, by his own admission, brought the children directly into the conflict between the parents by discussing with them the sexual assault allegation when it seems that the Plaintiff told the children that they had not seen the Defendant for regular parenting time because he was away on a business trip. The Defendant felt it was more important for him to tell the children the truth. In my view, neither parent should be discussing the conflict between the parents with the children, or putting the children in the middle of their conflict, for any reason.

To do so harms the children as well as the relationship between the parents and the children.

While steps have been taken to provide the children with counselling in order to address the high conflict nature of the divorce proceedings, it is in the best interests of the children for both parents to recognize how they themselves have contributed to the stressful environment experienced by the children. [ 14 ] I also note that the Defendant provided little evidence regarding how he would provide care for the children 4 days a week, including ensuring how they will get to and from school or how they will be cared for after school and during the evenings, or while he is working.

Further, Exhibit O to the Plaintiff’s October 9, 2020 Affidavit is the oldest child’s Student Attendance Profile for the period of September 3, 2019 to February 19, 2020. That shows that the oldest child was late for school in the morning or returning from lunch on 13 occasions, predominantly during the Defendant’s parenting time. No explanation of this was provided in evidence.

I am not prepared to make an order that would significantly increase the Defendant’s parenting time in the absence of evidence that was entirely within the Defendant’s ability to provide to the Court. [ 15 ] While I am not prepared to accept the Defendant’s proposal to have the majority of the parenting time with the children, I am concerned that he has little meaningful time with the children now that they attend full time school. The Defendant clearly cares for his children and therefore, I direct that the Defendant shall have parenting time with the children every Sunday from 9 am until every Tuesday at 9 am.

This may, of course, be increased by agreement of the parties. [ 16 ] I wish to make clear that my order does not bar the Defendant from seeking a further change to increase his parenting at a later date through an application for an oral hearing or at trial. However, communications between the parents must improve or there must be some other material change in circumstances. With regards to communications between the parties, I direct that the parties register for and start using Our Family Wizard for the sole purpose of communicating about the children. This must be completed by January 15, 2021.

Communications with one another shall be concise, informative, timely and respectful in tone. I also direct that neither party speak negatively about the other parent in front of the children, and the children should not be used as a “go between” or as a means of communicating between the parties. I recommend that the parents strongly consider engaging in counseling in order to learn how to improve their communication and overall co-parenting relationship with one another. B. Child and Spousal Support

[ 17 ] The Defendant has been paying $3,000 per month to the Plaintiff since April 1, 2017 as uncharacterized child and spousal support, as required by the Mahoney Support Order. He has asked that child support be set at $900 per month, which he asserted is the amount required by the Child Support Guidelines.

He also asked that spousal support be terminated since he and the Plaintiff were only married for 4 years. [ 18 ] The Mahoney Support Order provided that either party could apply at any time to have the $3,000 payment designated as child support or spousal support or any combination of child and spousal support. In my view, the Defendant, as a self-represented litigant, has in effect brought an application as contemplated by the Mahoney Support Order given his request for

section 3 child support to be set at $900 per month and for spousal support to be terminated. [ 19 ] The Defendant deposed that he made $45,000 last year, and this year, he expects to make no more than $50,000 or $60,000. He also filed a Disclosure Statement in September, 2020 containing his Notices of Assessment for the last 3 years that show he declared a line 150 income of $96,334 in 2017, $64,000 in 2018 and $45,000 in 2019. [ 20 ] The Plaintiff argued that the Defendant’s guideline income cannot be ascertained because the Defendant’s financial affairs are intermingled with his father’s.

For example, the Plaintiff pointed to the million dollar home that the Defendant lives in, but title to the property is in the name of his father. The Plaintiff also pointed to the Defendant’s continued breach of the Eamon Order which was based on a disclosure order made by Arbitrator Sherry Kachur, Q.C. (as she was then). It was submitted that the items to be disclosed include documents necessary to ascertain the Defendant’s guideline income and financial position generally.

While no application has been made to find the Defendant in contempt of court, the terms of the Eamon Order were clear and the Defendant has not complied, notwithstanding being directed to do so by Justice Hollins again in August 2020. [ 21 ] Even though the Defendant has not complied with the Eamon Order, I am satisfied that the documents included with his Disclosure Statement allow me to identify an amount to be paid as

section 3 child support on an interim basis. As an interim order, it remains subject to adjustment at trial in the event that the trial judge determines that the Defendant’s guideline income should be higher. I have arrived at this conclusion because the majority of the information required to be disclosed by the Eamon Order consists primarily of historical financial information and relates to matrimonial property issues.

The Plaintiff’s written submission seems to support this conclusion because paragraph 50 stated: …The uncharacterized payments can be characterized as child support, spousal support, a mix of child and spousal support or a mix of child, spousal and property advancement. The determination of property, however, rests on the father complying with the Order of Mr.

Justice Eamon and providing his undertaking responses. [ 22 ] Clearly, the Defendant must comply with the Eamon Order at some point in order for this matter to proceed to trial or he will be subject to whatever arguments are available to the Plaintiff regarding inferences or adverse inferences to be drawn. However, the outstanding information is of lesser consequence for determining guideline income and support payable. [ 23 ] As already noted, that Defendant’s 2019 declared Line 150 was $45,000 and he deposed that he expects to earn approximately $50,000 or $60,000 dollars in 2020.

He has proposed payment of $900 per month as child support, which is the table amount to be paid for a guideline income just over $68,000. I accept the Defendant’s argument that I am able to identify a separate

section 3 child support amount payable at this time, and accept the Defendant’s position that

section 3 child support be set at $900 per month on an interim basis. [ 24 ] That then leaves the question of spousal support. The Defendant argued that spousal support should be terminated because he has been paying $3,000 per month since April 1, 2017 and the Plaintiff has made no effort to become employed. He pointed to the duration of the marriage and the amount he has paid as support, which he alleged has allowed the Plaintiff to rent expensive accommodation, travel extensively and not have to find work in the hospitality industry, the area in which she was trained.

The Plaintiff argued that, like child support, no order should be made given the Defendant’s non-compliance with the Eamon Order. [ 25 ] The Plaintiff deposed in an affidavit filed January 2017: THAT, after separation, I had a nanny. Unfortunately, because the [Defendant] reduced what he paid me in November 2016, I could not pay the nanny enough money and the nanny left in November 2016. I then found a daycare called Wee Wild Ones that was a very good daycare and put the children in that. My work, however, would not allow me to come into work at approximately 7:30 am and insisted that I come into work at 6:00 am.

The daycare was not open that early and, because I could not accommodate their work requirements, I was let go from the Marriott in December 2016. I have been unemployed since that time and, while I would like to return to work, I need to have work that would allow the children to be in the daycare during the daytime. So far, I have not been able to find the work that has the same type of hours as the open hours for the daycare. [ 26 ] The Defendant has deposed that the Plaintiff has not found employment of any kind since December 2016. This fact was not challenged by the Plaintiff.

Notably, the Plaintiff has not referred me to evidence respecting her efforts, if any, to become re-employed or re-trained in a different field. I recognize that this past year has been extraordinary, both in terms of the children being home for a period of home schooling at the outset of the Covid pandemic and in terms of seeking employment, but the Plaintiff is expected to take reasonable steps to move towards being self-sufficient, particularly since the children have reached the age that they are both in full-time school.

Even though the children are still relatively young, the Plaintiff cannot expect spousal support to continue indefinitely given the duration of the marriage, her age and her own education and training. [ 27 ] I consider the Defendant’s application to terminate spousal support premature, and therefore, I direct the Defendant to continue to pay $3,000 per month on the first day of each month, $900 of which is characterized as child support. The Defendant will continue to make this payment until December 1, 2021 and subject to further Court Order, will pay only child support effective January 2022.

The parties are also expected to continue to provide annual financial disclosure so that the amount to be paid as child support may be adjusted as required.

C. The Children’s passports [ 28 ] Justice Marriott directed in December 2016 that the children’s passports be held by the Plaintiff’s lawyer. The Defendant asked that they be given to him as he alleged that the Plaintiff’s lawyer is non-responsive and is not facilitating communication between the parties.

The Plaintiff disagreed with the request, arguing that the Defendant has not been prejudiced in any fashion by the passports being held by Plaintiff’s counsel. [ 29 ] There is no evidence before me that the current situation has become unworkable or is introducing any inconvenience to the Plaintiff or Defendant. In the event that the Plaintiff’s lawyer ceases to act for the Plaintiff, then Plaintiff’s lawyer shall notify both the Plaintiff and Defendant in writing as soon as practicable regarding the change in representation and continue to hold the passports until further order of this Court.

Both parties will then have an opportunity to make an application to hold the passports at that time, if necessary. III. The Plaintiff’s Cross-application A. Direction to trial and compliance with Court Orders [ 30 ] The Plaintiff asked that all outstanding issues be set down for a trial. While I appreciate that the parties have now been separated for over 4 years, it would not be prudent for me to issue such a direction at this time. [ 31 ] The Defendant has yet to comply with the Eamon Order and still has to provide responses to undertakings from Questioning that occurred in February 2020.

There may be a further Questioning on those undertaking responses. The Defendant also asserted in oral submissions that the Plaintiff has not provided him with all disclosure and requested information, which was denied. [ 32 ] I agree with Plaintiff’s counsel, though, that dates for the completion of steps must be set. Justice Hollins already directed the Defendant to comply with the Eamon Order and to provide answers to the undertakings by September 14, 2020. He failed to do this and provided no explanation for his lack of compliance. His conduct in this regard is entirely unacceptable.

I direct the Defendant to complete both of these items by the end of February 26, 2021 at 4 pm. The Defendant will make himself available for cross-examination on his undertaking responses by April 2, 2021 at 4 pm. [ 33 ] As I pointed out to the Defendant during oral submissions, he has the ability to bring an application to compel the provision of information if he remains of the view that requested information is missing.

To the extent that the Defendant wishes to bring such an application, he must serve a Notice to Attend Docket Court to address process no later than March 12, 2021. [ 34 ] Although the Defendant is currently a self-represented litigant, he has worked with several counsel in the past. I strongly encourage the Defendant to consider engaging counsel again as this matter will have to be set down for trial in order to be concluded, unless the parties are able to reach an out-of-court settlement.

The Defendant continues to face a number of legal issues going forward. [ 35 ] With regards to outstanding cost awards, the Plaintiff indicated that the following is outstanding: (a) $750 ordered by Arbitrator Scott Menzies; (b) $400 ordered by Justice Price; (c) $50 per day ordered in the Eamon Order (which would now amount to over $40,000); and (d) $400 ordered by Justice Jeffrey, payable upon the decision in this special hearing being granted. [ 36 ] Given that the Eamon Order has not been complied yet, I make no direction respecting payment of costs pursuant to that particular order at this time.

However, I wish to make it clear to the Defendant that the penalty provided for in the Eamon Order continues to accrue and his lack of compliance with the Eamon Order may prove to be very costly. [ 37 ] I direct that the remaining $1,550 in costs as ordered by Arbitrator Menzies, and Justices Price and Jeffrey, be paid to Plaintiff’s counsel in trust by January 15, 2021 at 4 pm. B. Severing Divorce from Corollary Relief [ 38 ] Finally, the Plaintiff sought an order severing divorce from corollary relief which was opposed by the Defendant.

The Defendant previously advised that he wishes for everything to be addressed all at once. [ 39 ] While I do not agree that everything necessarily has to be addressed at once, I decline to exercise my discretion to sever divorce from corollary relief at this time because there are still significant matrimonial property issues to be addressed. Both parties have a responsibility to move this matter forward in a timely manner so that if a trial is necessary, it may be scheduled as soon as practicable. IV.

Disposition [ 40 ] As noted above, the Defendant’s application for primary parenting is dismissed, although I have directed a change in his parenting time in order to allow him to spend Sundays with the children. I have also granted the Defendant’s application to pay child support in the amount of $900 based on his anticipated 2020 guideline income, but have denied his application to terminate the payment

of spousal support until the end of 2021, subject to further Court order. I have also denied the Defendant’s application to hold the children’s passports. [ 41 ] With regards to the Plaintiff’s cross-application, I have denied the request to set this matter down for trial and to sever divorce from corollary relief at this time. I have granted the Plaintiff’s application requiring the Defendant to comply with existing Court orders and cost awards.

I have also established dates for future steps in the litigation to be completed. [ 42 ] In my view, the parties have enjoyed mixed success and therefore, each party is directed to bear their own costs. Heard on the 3 rd day of December, 2020. Dated at the City of Calgary, Alberta this 15 th day of December, 2020. L. Bernette Ho J.C.Q.B.A. Appearances: Robert Knight for the Plaintiff RC, self represented litigant for the Defendant