SAP v DMP, 2020 ABQB 811

Court of Queen’s Bench of Alberta Citation: SAP v DMP, 2020 ABQB 811 Date: 20201222 Docket: 4803 169021 Registry: Edmonton Between: SAP Plaintiff - and - DMP Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ I. Introduction [ 1 ] I reserved decision on a multi-issue special chambers application. Both parties sought a number of orders relating to parenting and child support.

There were few issues relating specifically to the older daughter, and most of the current parenting disagreement relates to the younger child. The older daughter appears to be doing well, academically and emotionally. II. Background [ 2 ] The parties had a 21-year relationship. They have two daughters, now aged 11 and 14. The parties separated in September 2013. A consent order by Sulyma J on September 24, 2015 provided for a shared parenting regime. That appears to have held together without much difficulty.

[ 3 ] On August 13, 2019, Burns J varied the Sulyma J’s order by giving each parent a week-day afterschool and overnight visit during the week the children were with the other parent. She also directed that Paul Preston, an Edmonton psychologist, conduct a Practice Note Intervention, with the costs being shared equally by the parents. [ 4 ] The younger daughter had been referred to the Clinical Services office at the University of Alberta’s Faculty of Education Department of Education Psychology.

She was assessed in April 2019 because of some difficulties she was having at school, mainly related to concentration, sustaining activity, and challenges with writing, math, and motor movements. [ 5 ] She was given a number of tests. The testers concluded that identified her strengths and weaknesses. Concerns about Attention-Deficit and Hyperactivity/Impulsivity Disorder (ADHD) were discussed. A number of recommendations, both for school and for home, were made. [ 6 ] A follow-up visit with the child’s paediatrician, Dr.

Ahmed Ali in May 2019 led to him noting that their daughter met the DSM-5 criteria for ADHD, and he recommended that she be put on a trial course of a stimulant medication. DMP supported the recommendation; SAP did not. [ 7 ] The parties disagreed about implementing some of the recommendations, leading to the application before Burns J in August 2019 and the appointment of Mr. Preston. Mr. Preston began work with the parties and the children. In the fall, he expressed concerns that the younger daughter may be having vision problems, and he recommended that she see an optometrist.

She did so, and was prescribed eyeglasses. The optometrist commented negatively on the ADHD diagnosis, giving support to SAP’s concerns. [ 8 ] DMP reported the optometrist to his professional body, and ultimately the optometrist withdrew his comments concerning ADHD. [ 9 ] The parties continued with the PN 7 work with Mr. Preston. He reported in December 2019 that financial issues were getting in the way of the work he was doing, and he requested that his appointment be extended into the New Year. [ 10 ] Mr. Preston ultimately prepared a report of his involvement, his conclusions and his recommendations. Mr.

Preston commented again on the financial issues being a problem between the problems, as well as the children’s reaction to both parents’ new partners. There appeared to be issues between the girls and DMP’s partner and some reluctance on their part to be with her other than when DMP was present. No concerns were identified with SAP’s new partner, but Mr. Preston’s report suggests that there is a history of SAP undermining the girls’ relationships with their father, and that they are more aligned with their mother. Mr.

Preston perceives that the girls feel sometimes that they need rescuing from their father, and SAP has put herself in the position of being the rescuer. [ 11 ] As a result, one of Mr. Preston’s recommendations is that “SAP, (her partner) and the girls should be working on the ways in which they may be inadvertently contributing to the disfunction.” He recommended individual counselling with a therapist, that the family unit seek out a family therapist, and that DMP and his partner pursue a family counsellor “familiar with separation and divorce issues”. III.

Issues [ 12 ] The most pressing issue is DMP’s application that he be allowed to put the younger daughter on ADHD medication as recommended by her paediatrician without SAP’s consent, and that SAP be directed to cooperated and administer the medication when their daughter is in her care. [ 13 ] Next is the issue of counselling: SAP objects to the girls being counselled with DMP and his partner. DMP believes that will be the most beneficial to overcoming the dysfunctional relationship that has been developing between the girls and their new step- mother.

DMP refuses to provide consent to the younger girl continuing with counselling at CASA, which had begun in October 2017. [ 14 ] Both parties seek some adjustments to the parenting plan/schedule that has been previously implemented between them. Despite the work with Mr. Preston, they have been unable to agree on some changes. [ 15 ] Further, there is the financial issue, namely that DMP believes that additional income should be attributed to SAP and his child support obligations reduced. Ancillary to that is whether the private school fees should be treated as a

section 7 expense and divided between the parties. [ 16 ] Finally, the parties have yet to be divorced. This does not appear to be an issue as neither party raised any objection to it at the hearing. IV. Analysis A. Attention-Deficit and Hyperactivity/Impulsivity Disorder - ADHD [ 17 ] One of the reasons I reserved decision was so that I could re-read the reports from the Education Psychology Department and Mr. Preston’s reports. In the affidavits and other materials submitted for this application (including cross-examination transcripts and undertaking responses) I had not seen Mr.

Preston’s report of March 31, 2020. [ 18 ] It is challenging to a judge when the parents are unable to agree on something so significant as medical issues, and as here, whether certain medications should be given to a child. In this case, it is somewhat ironic that in the history of this matter, it was SAP who first identified attention issues with their younger daughter, and she worried if there was a serious problem. DMP was dismissive of

the concerns at the time. [ 19 ] Now that Dr. Ali has given his professional opinion that the girl meets the diagnostic criteria for ADHD and has recommended mediations, the parties’ positions have reversed. DMP is keen to follow Dr. Ali’s recommendations while SAP is looking for ways to undermine those recommendations. She initially relied on an optometrist’s opinions on a subject in which he has no professional qualifications. She then questions the connection between Dr. Ali and her daughter suggesting he has had limited involvement with her.

She also suggests that they send their daughter back to Alberta’s Child, Adolescent and Family Mental Health program (CASA), which had earlier involvement with her, for further evaluation. [ 20 ] Ultimately, SAP has offered no objective reason for refusing to consent to their daughter being given a trial course of ADHD mediation. There is no competing medical evidence and there is no information as to any side effects of the proposed mediation that would not be addressed by discontinuing the medication.

All that is being proposed is a trial course. [ 21 ] Despite SAP’s personal objections to the pediatrician’s recommendations, I am satisfied that it is in their daughter’s best interests to try the mediations. On the evidence before me, the downside, or worst-case scenario, is that the medications may not help the problem. The upside is that their daughter may do better in school and enjoy school more. [ 22 ] Accordingly, I direct that DMP may follow Dr. Ali’s recommendations without the consent of SAP, and that he be permitted to administer the prescribed ADHD medication to their daughter.

SAP is directed to cooperate with this, and to faithfully administer any such prescribed medication to their daughter in accordance with Dr. Ali’s recommendations. [ 23 ] I do not have any information as to the length of the trial course of treatment, or what follow-up is required, but at this stage, I leave that in Dr. Ali’s hands. He is the professional the parties have trusted to look after their daughter since October 2017, and is best positioned to deal with this issue. I assume that there will have to be some coordination among the parents, Dr.

Ali, the school and possibly the Department of Education Psychology. I expect that the parties will work together in their daughter’s best interests to see that this is done effectively and efficiently. B. Counselling [ 24 ] I do not understand why SAP objects to her daughters attending counselling with DMP and his partner. There are obviously issues between her daughters and their step-mother. It is in everyone’s best interests to address these problems and try to overcome them.

There is no information before me that the partner poises any sort of risk to the girls, and the girls have a long time ahead to be co- parented in their now blended families. Like it or not, DMP’s partner is an integral part of the new family unit, and the sooner the girls have a comfortable relationship with her, the better. [ 25 ] I direct that DMP be allowed to take his daughters to family counselling with his partner if and when their counsellor considers it appropriate and beneficial to include the girls.

SAP’s consent to that counselling is dispensed with, subject to the proviso that the identity and qualifications of the counsellor be identified to her. I leave for another day whether at some stage SAP will be entitled to learn any details from the counselling sessions. [ 26 ] It is clear from Mr. Preston’s report that the girls have a very strong bond with their mother. That is not threatened by counselling to help the girls and DMP’s new partner overcome the obstacles that are standing in the way of the girls having a good relationship with her as well. [ 27 ] Both parties have expressed some confidence in Mr.

Preston and believe they have benefitted from working with him. Mr. Preston has a wealth of experience with counselling for children and adults. He has made some specific counselling recommendations. I have dealt above with counselling for DMP and his partner. Mr. Preston also recommends family counselling, which I presume to be counselling with DMP and SAP, ultimately including their daughters if necessary and appropriate. [ 28 ] I note that Mr. Preston has also recommended that each daughter have individual counselling.

He specifically recommends that their counsellor be one with experience with family court matters. That is not what I understand CASA provides, and it seems to me that there would be a benefit in both girls seeing the same counsellor (at least for consistency), but not necessarily together. That should be the counsellor’s decision, namely what will be the best way of proceeding for each girl. [ 29 ] At this time, I make no direction concerning CASA, as I am not convinced that it is necessary at this stage, and I am also concerned that the younger daughter not be involved in too much counselling. If, however, Mr.

Preston and CASA become of the view that the younger daughter would benefit from going back to CASA, and DMP still disagrees, then I am prepared to direct that SAP be permitted to continue with the CASA counselling without the necessity of obtaining DMP’s consent. [ 30 ] The parties should obtain Mr. Preston’s recommendation as to a counsellor for the girls. If they cannot agree on someone, I reserved jurisdiction to appoint someone. [ 31 ] At this stage, I consider Mr.

Preston’s work to be substantially complete, subject for his advice and directions regarding ongoing counselling for the parties and the children. The parties shall share equally his ongoing costs in that regard. [ 32 ] With the certainty created by this decision, ongoing counselling and the use of a communication program, I do not see a present need for a parenting coordinator. If their communication skills do not improve, I would however encourage them to return to Mr. Preston for assistance. They do not need a court order to do so. C. Parenting plan [ 33 ] SAP seeks adjustments to the parenting

schedule to reduce the number of exchanges, although she notes that her and DMP’s

homes are a 5-minute drive and 15-minute walk away from each other. She would like to see the

schedule adjusted in accordance with DMP’s work schedule. He is a pharmacist who does shift work, which makes it difficult for him to take the girls to their activities while they are with him, and he uses child care when he is unable to look after the girls when she would be available. [ 34 ] SAP’s suggestions include changing the week-on week-off

schedule to a 5-9 schedule. [ 35 ] DMP wants a neutral exchange location “to minimize opportunities for conflict”, referencing an incident where he alleges that SAP “forced her way” into his home. He references other incidents where there have been unpleasant verbal exchanges between the parties. He also suggests the parties have a “clean” week-on week-off routine, again to avoid conflicts. He would like to see the parties each have 2 two-week periods with their daughters, and suggests a May 15 notification date. [ 36 ] SAP’s suggested

schedule includes the excellent idea that parenting issues be consolidated into one order, rather than have them rely on several orders. I agree, and the parties should consolidate the parenting

schedule into one comprehensive, stand-alone order to include adjustments arising out of this decision. [ 37 ] SAP also suggests that the parties communicate through one of the family communication programs like Our Family Wizard or $$. I agree. Neither program is expensive and out of the means of the parties. There are advantages to written communication only to avoid misinterpretations and misunderstandings, as well as to minimize direct communications between parties who are not getting along.

That suggestion should be implemented as soon as possible. [ 38 ] She also suggests that the parties notify each other as to their preferred two week stretch in the summer by June 15. That should be done. In the event of conflict, the party first submitting the request should get priority to that period; the next summer the other parent gets first choice, and so on for further summers. I expect the parties to use as their primary consideration the best interests of the girls, rather than their own inconveniences or preferences.

Otherwise, their historical practices should be memorialized. [ 39 ] I see no reason why DMP’s partner should not continue to be able to pick up the girls on SAP’s Fridays, subject to what comes out of the counselling to be arranged. [ 40 ] SAP suggests that the parties continue to have exchanges at their homes, although she is “open” to a neutral exchange point. [ 41 ] As I indicated to the parties at the hearing, I have little patience for parents who cannot behave appropriately at exchanges.

Misbehaving embarrasses themselves and suggests a lack of maturity, but more importantly is that it embarrasses their children. I decline to make any change to the use of the school or residences, other than to say when the parents exchange at one of their residences, the delivering parent and/or partner shall remain off the receiving parent’s property and shall remain silent during the exchange.

The receiving parent and/or partner shall remain at the door of the residence and shall also remain silent. [ 42 ] Because of the difficulties with exchanges, I see little benefit continuing the access between the children and the other parent during a parent’s week. The children are old enough that they can manage going a week without seeing the other parent.

I assume that the children do have regular electronic communications with both parents when they are with the other. [ 43 ] DMP’s suggestion that the parties each have 2 two-week periods with the children during the summer, and using a May 15 notification date. Since they are sharing parenting, it does make sense that they maximize holiday times, and the earlier notification date is preferable. That said, I do not recall any specific discussion of this at the application and I will simply direct that the parties provide the other party their suggested summer

schedule by May 15 each year. The

schedule should include at least one two-week consecutive period for each parent. If each parent seeks the same two-week period and they cannot otherwise agree on the schedule, the parent who first requested the competing time shall have that time that summer; the other parent shall have first choice of a two-week period the next summer, and so on. [ 44 ] Sadly, this is one of those cases where it appears necessary to direct both parents to refrain from say negative things about the other parent or their partner in the presence of the children, and from involving the children in these legal proceedings.

I make those directions. D. Child Support [ 45 ] SAP says her line 150 incomes have been as follows: • 2016 $17,175 • 2017 $17,559 • 2018 $15,584 • 2019 $17,613 [ 46 ] DMP’s line 150 incomes are not before me. SAP says his income is usually in the $120,000 per year range. [ 47 ] SAP is a licensed practical nurse by training. She takes on shifts when they are offered to her, but her ability to take on shifts is limited because she cannot afford child care.

SAP says in her affidavit of September 16, 2020 that she has traditionally paid about $200 per month for the girls’ activities, $3,500 per year for tuition for the girls’ private school, and other funds for medical and dental benefits not paid for by DMP’s benefit package. [ 48 ] SAP describes the above figures as representing her typical income, which has not changed during the marriage. She notes that she did not seek spousal support despite a significant gap in the parties’ respective incomes.

[ 49 ] SAP suggests leaving the past alone, and “resetting” on an ongoing basis. She suggests setting DMP’s income at $1,750 per month, which was the amount in their settlement agreement made in 2018. [ 50 ] DMP asks that income be imputed at $55,000, automatically increasing by $5,000 per year until she reaches $75,000 per year, when it should be “capped”. DMP says these incomes are typical of incomes earned by LPNs. He says SAP did not go back to full time work when the youngest daughter reached grade one, as was agreed, and is deliberately underemployed to avoid child support obligations.

His counsel notes that on questioning, SAP acknowledged receiving money from family members to help with things such as out of country travel. [ 51 ] I am bound by Hunt v Smolis-Hunt , 2001 ABCA 229 , and can only impute income if I am satisfied that there is a deliberate underemployment for the purposes of avoiding paying child support or maximizing receipt of child support. In other words, bad faith.

Here, in response to this allegation, SAP notes the cost of child care, which she says she cannot afford, and she says that affects her ability to accept more shifts. [ 52 ] DMP refers to the Court of Appeal decision in Keating v Keating , 2017 ABCA 428 . There, the Court of Appeal referenced Hunt v Smolis-Hunt , but concluded that on the facts before the chambers judge it was open to her to infer that the payor was deliberately underemployed to lessen his child support obligations. That case recognizes that judges are entitled to draw reasonable inferences from the evidence.

As in most areas of family law, each case generally turns on its unique facts. [ 53 ] I note that the younger daughter is only 11, and needs after school care. It would not be reasonable to expect her 14-year-old sister to routinely fill that function. In the absence of free before and after school care, DMP would be responsible for his proportionate share of the child care costs. [ 54 ] The reality is that going back to full time work for SAP when child care would still be necessary would be a zero sum gain exercise.

She would likely pay most of any excess earnings towards taxes and child care, and DMP would pay in his share of child care most if not more of any child support savings back to SAP under s 7. [ 55 ] As a result, I do not impute any income to SAP. DMP has failed to discharge the burden of proof on him under Hunt v Smolis-Hunt . [ 56 ] It may be a completely different situation once the younger daughter no longer needs before and after school care. That too is fact driven and depends on the needs of the child and their level of maturity and independence.

Once that occurs, it may be difficult for SAP to overcome negative inferences if she is not working full time or close to full time hours. But that is for another day. [ 57 ] It seems to me that the parties with the assistance of counsel can sort out s 3 issues as each party appears to be a T-4 employee with one source of income. I direct that DMP pay Guideline child support to SAP commencing July 1, 2020 based on the s 9 offset amount from the parties’ respective 2019 line 150 incomes.

That will change effective July 1, 2021 when the child support will be adjusted to reflect the parties’ 2020 line 150 incomes. [ 58 ] SAP asks that the Court enforce the parties’ agreement and that DMP be required to pay the amount agreed to in the Minutes of Settlement. There, DMP agreed to pay $1,750 per month commencing July 1, 2018.

Although not argued by the parties, I note that the Minutes of Settlement provides in paragraph 28: The parties agree that in the event that either party makes an application to obtain financial information from the other or to vary or reinstate spousal support in this matter, the Agreement will be a full and complete defence to such claim and the party applying will be responsible for the other’s solicitor client costs in the event such an application is made, regardless of the success of such application. [ 59 ] The Minutes of Settlement do not contain the usual (and required) provision requiring annual financial disclosure in relation to child support.

While the above clause may have been intended to only apply to spousal support, it is arguably applicable to child support as there is no other provision in the agreement relating to ongoing disclosure. [ 60 ] I am doubtful that paragraph 28 is effective in relation to spousal support, but that is not before me. It has no application to child support. The right to be properly supported is the child’s and agreements to the contrary are clearly reviewable by the Court.

There is an obligation on the parents to properly support their children, and that obligation extends to increasing child support commensurate with any increases in income. To fail to disclose increases in income and to pay higher child support has frequently been described as misconduct on the part of the payor. [ 61 ] Here, I interpret the parties’ agreement as setting child support on the basis of the best information available to the parties at the time.

If the parties were to be using the Child Support Recalculation Program , child support would be reviewed and adjusted for the parties’ incomes on the anniversary date of the agreement or order. Here, the review date would have been July 1, 2019. [ 62 ] It would accordingly be reasonable for DMP’s s 3 obligations to be adjusted as at July 1, 2019 based on his 2018 line 150 income, which ordinarily should have been disclosed to SAP by June 30, 2019. He should have paid the agreed $1,750 per month to that time.

Effective July 1, 2019, he should have been paying the s 9 offset amount to SAP based on the parties’ respective 2018 line 150 incomes. And effective July 1, 2020, he should have been paying SAP the s 9 offset amount based on the parties’ respective 2019 line 150 incomes. [ 63 ] The parties need to add the usual annual financial disclosure provisions to their child support order. The process should occur annually. It should be easy to calculate any resulting arrears and that amount should be included in the order resulting from this application.

Repayment of any arrears should be completed over the same period of time in the future as it took for the arrears to accumulate. [ 64 ] For s 7 purposes, SAP’s line 150 incomes for the respective years should be used.

[ 65 ] As for ongoing s 7 purposes, it would appear to be SAP who has borne the burden of the schooling and activity expenses. I recognize that the school is a private school. DMP disagrees with his children’s enrollment there instead of being in the public system, but he has acquiesced.

In the absence of any information supporting the private school as a better choice for the girls (but for continuity), I will not interfere with the choice of schools, but will treat it as has been traditionally done: the private school tuition cost will be SAP’s sole expense. [ 66 ] DMP should maintain the children on his employee health care plan at his sole cost. Any additional educational expenses, medical and dental costs not recoverable through the health plan shall be shared proportionately. There is no good reason why SAP should be responsible for the cost of the children’s activities.

Both parents should have a say in the children’s activities if they are expected to pay for them and support them. That said, where there is little communication between the parents, my default direction is that each parent gets to choose one activity for each child, and the costs of that activity will be shared proportionately. The other parent should reasonably support the chosen activities.

Other activities need to be agreed to, otherwise they will be at the sole cost of the enrolling parent. [ 67 ] I agree with SAP’s approach – to declare the ledger even on s 7 expenses as at December 31,2020 and begin a new regime as of January 1, 2021. V. Divorce [ 68 ] There is no reason why these parties are still married. There is a settlement agreement in place regarding matrimonial property issues, and each of them has re-partnered.

No objection was expressed to the divorce proceeding on the application, so I direct that collateral relief be severed and that either party has leave to apply for a desk divorce. VI. Costs [ 69 ] Both parties seek costs. This is a case where there has been mixed success. Each party should bear their own costs. They have incurred significant legal costs, and have undoubtedly spent a lot on the Practice Note 7 work and report by Mr. Preston. I would observe that whatever the cost of the PN 7, it was well worth it. The information in it and the recommendations were very helpful to the parties and to me.

I note in particular SAP’s wish that the PN 7 process continue indefinitely as it appears to have forestalled court applications. I hope with the directions herein; the parties can proceed on their own. If they struggle, I encourage them to reconnect with Mr. Preston. VII. Conclusions • Collateral relief is severed, and either party may apply for a desk divorce; • DMP may follow Dr. Ali’s recommendations regarding the ADHD diagnosis and treatment for it, including administering any prescribed medications. SAP’s consent to this is dispensed with.

She is directed to cooperate with the implementation of this recommendation and to administer any such prescribed medications when their daughter is in her care. This is a “trial” course of medication, and the use of medication should be reviewed when medically appropriate, on the recommendation of Dr.

Ali in the first instance; • DMP may include their daughters in family counselling with his partner; SAP’s consent to this is dispensed with; she is, however, entitled to know the identity and qualifications of the counsellor; • The parties shall agree on an individual counsellor for the girls in accordance with Mr. Preston’s recommendations; if they are unable to agree on a counsellor I retain jurisdiction to appoint one; • The parties shall commence family counselling in accordance with Mr.

Preston’s recommendations and with a counsellor recommended by him; • Counselling for their younger daughter at CASA may be continued without DMP’s consent if such counselling is concluded to be in their daughter’s best interests by Mr.

Preston and CASA; • Counselling costs other than those for the counselling with DMP, his partner, and the girls, shall be shared equally between the parties after application of any benefit programs that may be available to either party; • The parties shall consolidate all parenting directions into one stand-alone order; • The parties shall begin to communicate using one of the family communication programs readily available in Edmonton, each parent to share the cost equally; • Neither parent shall speak or write ill of the other parent or the other parent’s partner in the presence or in any manner that will come to the attention of the children, nor shall they permit anyone else to do so; • Neither parent shall discuss these court proceedings with their children, nor permit anyone else to do so; • The existing parenting

schedule shall be maintained, subject to the parties’ ability to agree to variations from time to time; subject to the June 15 date being used to notify the other parent of the preferred two-week summer vacation slot as discussed above; • Pick ups and drop-offs shall take place either at the girls’ school or at the parties’ residences. Where a party’s residence is used,

the delivering parent and partner shall remain off the property of the receiving parent and the receiving parent and partner shall remain at their doorstep; • Mr. Preston’s ongoing role under the PN 7 order is limited to coordination of counselling activities, including advising on counsellors; • Child support from July 1, 2020 and ongoing shall be based on the

section 9 offset amount based on the parties’ respective line 150 incomes for 2019; •

Section 3 arrears shall be calculated from July 1, 2018 based on DMP paying $1,750 per month from July 1, 2018 to June 30, 2019; from July 1, 2019 to June 30, 2020, DMP’s

section 3 payments shall be set as the

section 9 offset amount on the parties’ respective 2019 line 150 incomes; • The usual June 30 financial disclosure obligation shall be added to the parties’ child support order; • Commencing July 1 and each year thereafter,

section 3 child support shall be based on the

section 9 offset amount on the parties’ previous year’s line 150 incomes; • Any arrears calculated as above shall be repaid over the same period of time they took to accumulate; • I leave it to the parties to draft the orders resulting from this decision; I suggest they divide the work with one doing the parenting order and the other doing the remainder of the directions herein; and • Each party will bear their own costs of these proceedings. Heard on the 24 th and 25 th days of November, 2020. Dated at the City of Edmonton, Alberta this 22 nd day of December, 2020. Robert A. Graesser J.C.Q.B.A.

Appearances: Stephen D Harfield of Queck & Associates for the Plaintiff, SAP Pierre G Asselin of Pierre G Asselin Professional Corporation for the Defendant, DMP