AML v CLL, 2021 ABQB 238

Court of Queen’s Bench of Alberta Citation: AML v CLL, 2021 ABQB 238 Date: 20210326 Docket: 4803 169187 Registry: Edmonton Between: AML (aka AGM) Respondent (Plaintiff) - and - CLL Applicant (Defendant) _______________________________________________________ Endorsement Settling Order of the Honourable Mr. Justice Douglas R. Mah _______________________________________________________ A. Background [ 1 ] The divorced (and now remarried) parents of twin ten-year old boys (soon to be eleven) seek the Court’s assistance in settling and operationalizing the parenting decision which I gave orally on December 10, 2020.

Counsel appeared before me again on March 12, 2021 for this purpose. [ 2 ] Both parties are well-meaning and capable parents but have differing perspectives with regard to what is in the best interests

of the boys. The main difference is with regard to whether the parenting regime should be converted from primary care with AGM to shared parenting with both. [ 3 ] The divorce judgment granted back in October 2014 defined the basic parenting arrangement with AGM having primary care. The December 2020 application brought by CLL sought a variation such that AGM and CLL would have shared parenting.

I found that the requisite change in circumstances had occurred under then section 17(5) of the Divorce Act based on the change in CLL’s ability to meet the boys’ needs, consisting of: • the stabilization of CLL’s career; • the stabilization of CLL’s work schedule; • the fact that CLL has purchased a residence that is within five minutes of AGM’s home and the boys’ school; and • the fact that both parties have remarried such that CLL is now part of a blended family into which the boys have integrated well, and both new partners have positive relationships with the boys that enables each new partner to support the parenting of either. [ 4 ] I noted in my oral decision that both AGM and CLL recognize or should recognize that: • the other parent has a valid and legitimate right to participate in the life of the boys; • co-parenting children, no matter how the time is split, involves recognizing the legitimate interests of the other, and making allowances and concessions where needed, for the benefit of the other party; • collaboration and communication are important so that raising the boys is a true joint enterprise; • the other person has different strengths as a parent and can offer different opportunities and experiences to the boys to enrich their lives; • there is a need to shift CLL away from being a mere “secondary” or “weekend” parent so that she assumes a greater share of the day-to-day burden of caring for and raising the boys. [ 5 ] A complicating feature in this case is CLL’s shift schedule, which makes it impossible for the boys to be with one parent or the other on the same days of the week, week-in and week-out.

I observed that, while a parent’s employer should not be the party that decides a parenting schedule, shift-work is an undeniable and integral part of the labour economy. This is especially so where the worker, as in CLL’s case, is a public sector employee discharging a public function in the public interest. The Court should not penalize a parent for taking on this work.

It also funds the child support for the parent with primary care. [ 6 ] After considering the factors summarized by Lema J in CAS v NPC , 2020 ABQB 421 at paras 9-10 , I commented that CLL had not established a stable or long enough history of successful parenting, particularly in her new circumstances and that an immediate move to shared parenting would be too jolting, radical and untested to be in the best interests of the boys.

In this case, I concluded that shared parenting is an aspirational objective that requires a graduated approach. [ 7 ] In the result, I ordered that CLL have parenting 5 out of each 14 or 10 out of each 28 days, to be determined having regard to CLL’s work schedule. There were also specific directions concerning holidays and school breaks. [ 8 ] As I understand it, the parties and their counsel have been unable to work out exactly how the ruling I made should be reduced to a written Order. They have been able to agree to a parenting

schedule to June 30, 2021 but not for the remainder of the year. [ 9 ] At the March 12, 2021 hearing, I stated that I would issue this endorsement to provide direction as to implementation of my December 10, 2020 ruling. B. Parenting [ 10 ] I see that at page 8, line 32 of the transcript, I misspoke by saying “2021” twice, instead of saying that the 2021

schedule should be decided by the end of 2020. That has turned out to be difficult in practice. [ 11 ] Part of that difficulty, Ms. Brown submitted, stems from her client CLL acceding to AGM’s wish that no weekend be split between the two parents, that is, that the boys be with one parent or the other for an entire weekend, both Saturday and Sunday. Owing to CLL’s shift work, there will be certain months where she is required to work at least one Saturday or Sunday each week, and therefore not have the boys with her on any weekends during that month.

CLL wants to ensure that she gets her full 5/14 or 10/28 day allotment during a month, even if that involves no weekends. [ 12 ] CLL’s other concern is that a firm deadline for settling the parenting

schedule for any year is necessary to create certainty. Taking 2021 as an example, while the first six months are set, there is still no

schedule for the second six months. As I said above, and what I meant to say while giving my reasons, is that the

schedule for any subsequent year should be settled before the end of the previous year, save and except where choices are reserved. [ 13 ] I see that things did not turn out that way for 2021 but there is no reason that these parties, as reasonable parents working collaboratively, cannot do so for 2022 and beyond, and so I make that direction specifically now for all years after 2021. For 2021 itself, I specifically direct that the

schedule for the second half of the year be confirmed and provided to the boys no later than May 30, 2021. [ 14 ] I appreciate that both sides have worked hard on trying to settle the Order. I want to provide as much certainty and structure as

possible. It seems to me that the wording proposed for para 2(

a) and (

b) of the Order by Ms. Rollins provides the required structure and takes into account those weeks where CLL must work at least one day of the weekend. If it turns out that during any month in which CLL has to work either or both weekend days, then clearly she has the right to select her 10 full parenting days within a 28-day timeframe. [ 15 ] The specific provisions regarding holidays and school breaks (shown in para 3 of either version of the Order) shall be superimposed on the regular parenting arrangement described in para 2.

I appreciate that Spring Breaks might not necessarily involve “holidays” in the sense of travelling to a holiday destination (even though I used the word “holiday” in my reasons). I accept what Ms. Brown says about the limitations imposed by COVID at the moment and financial constraints that affect the ability of either parent to travel with the children. Spring Break is nonetheless a break from school (and therefore a holiday of sorts) with time for meaningful parenting and should be allocated between the parents, as indicated in para 3, without the necessity of holiday travel, and I so direct. C.

Transitional Nature of the Order [ 16 ] I clearly intended my ruling to be a transitional arrangement. I had hoped the parties would, by consent, move to shared parenting once CLL had demonstrated to AGM that she was fully capable of taking on greater day-to-day parenting responsibilities, in light of the identified changed circumstances. I may have been overly optimistic about the consent. [ 17 ] A specific review date was not discussed at the original hearing but was raised as a subject at the second hearing. This is a circumstance in which I think I can apply Rule 9.13(

a) to vary what I originally did in order to give effect to what I clearly intended. [ 18 ] Since the parties may very well continue to disagree about when or whether CLL is ready for shared parenting, or whether it is in the best interests of the boys, I will give effect to the transitional intention by allowing CLL to apply for a review of this Order, not sooner than two years from December 10, 2020.

CLL has leave to do so without the need, strictly speaking, of demonstrating a further change in circumstances but, to be clear, still will have the onus of satisfying the Court at the time of review that shared parenting is in the best interests of the children. CLL is not required to apply for a review if she is content with the parenting arrangement at the time. Of course, the parties remain free to vary this Order by consent. D. Child Support [ 19 ] Ms. Brown asked that the guideline income for CLL and the resulting

section 3 child support payable be adjusted now that updated information is available. She suggests that child support is premised on current earnings and making this change avoids the need for a further Court application. Mr. Holubitsky did not dispute the new information but suggested that the Order should reflect what was actually ordered by the Court. [ 20 ] The adjustment is slight. I will rely on Rule 9.13(

a) to make changes to the guideline income and

section 3 child support so that they reflect current reality. E. Recitals [ 21 ] The issuance of this endorsement makes the main changes requested by Ms. Brown to the recitals of the Order unnecessary. F. Costs [ 22 ] Following my previous Order, there shall be no costs of the reattendance on March 12, 2021. Heard on the 12 th day of March, 2021. Dated at the City of Edmonton, Alberta this 26 th day of March, 2021. Douglas R. Mah J.C.Q.B.A. Appearances:

Paul Holubitsky as agent for Wendy C. Rollins, QC Frohlich Rollins Schwab for the Respondent (Plaintiff) Tracy C. Brown Brown Law Group for the Applicant (Defendant)