Katuski v Katuski, 2021 ABQB 471

Court of Queen’s Bench of Alberta Citation: Katuski v Katuski, 2021 ABQB 271 Date: 20210616 Docket: 4804 011792 Registry: Grande Prairie Between: Theresa Katuski Plaintiff - and - Kevin Katuski Defendant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________

Background [ 1 ] The parties began cohabitating in 2001, married in 2006, and separated on November 7, 2018. They have two sons. The eldest (“N”) is 17 and the youngest (“M”) is 12. [ 2 ] On September 6, 2019, an Interim Order granted Mr. Katuski primary care of the children, with Ms. Katuski being granted generous access, including every second weekend and every second Wednesday evening. The Court also ordered that the children commence counselling. The Court further directed that the parties’ cross-applications be further considered in a Special Chambers hearing.

That hearing was originally scheduled for March 31, 2020, but was adjourned sine die due to Covid-19. [ 3 ] In February 2020, Ms. Antonius was appointed as counsel for the children. The children began counselling with Ms. Botten in April of 2020. They attended three sessions, the last on May 13, 2020. Issues [ 4 ] The major issues to be determined in this Special Chambers Application are: 1. what parenting regime would be in M’s best interests, the parties having concluded that, given N’s age, he can determine his own parenting schedule; 2. whether the children ought to resume counselling; and 3. whether Ms.

Katuski is entitled to spousal support and, if so, in what amount and from what date. Position of the Parties Ms. Katuski’s Position [ 5 ] Ms. Katuski believes that shared parenting is in M’s best interest. She believes that Mr. Katuski has been alienating their sons from her and views this as a continuation of the controlling and abusive behaviour that she alleges was present throughout their marriage, the principal reason given by her for leaving it. [ 6 ] Ms. Katuski points out that she included a claim of spousal support in her Statement of Claim.

She says she did not initially pursue that claim, relying on legal advice that she should concentrate on resolving parenting issues before pressing for spousal support. [ 7 ] Ms. Katuski takes the position that she is entitled to spousal support, on both a compensatory and non-compensatory basis, retroactive to the date of separation. She points out that, in connection with the September Interim Order, Mr. Katuski only provided his Affidavit the morning of the Application. At the time of the filing of Ms. Katuski’s Concise Letter in relation to this Application, Mr.

Katuski had not provided his complete or current financial disclosure. An approximately 150 page disclosure statement was provided to the Court and to Ms. Katuski’s lawyer on the afternoon of March 12, four days before this Special Chambers Application. As Mr. Katuski is self-employed, this left little time for Ms. Katuski to review the additional disclosure. Nonetheless, she has identified many areas of concern, especially in relation to business expenses claimed by Mr. Katuski. [ 8 ] Ms. Katuski submits that Mr. Katuski has breached his disclosure obligations and ought not to benefit from that failure.

She submits that his alleged business expenses ought to be added to his income for guideline purposes until he has provided adequate proof that they are business expenses. She concedes that, in relation to the farm operation, there would be business expenses that would be properly deductible for guideline purposes. She has suggested a 30% rate be used for the farm business until a proper guideline income evaluation can be completed for Mr. Katuski. In relation to Mr.

Katuski’s operating business, she argues that all expenses ought to be added back in until his guideline income is properly determined by expert evidence. Mr. Katuski’s Position [ 9 ] Mr. Katuski takes the position that M should determine both the parenting

schedule that should apply to him and whether further counselling should be undertaken. He is strongly of the view that M should choose and that his wishes should prevail. [ 10 ] Mr. Katuski maintains that “he wants to raise independent people” and, therefore, it has always been his position that he and Ms. Katuski should “do what the children say”. [ 11 ] Mr. Katuski submits that he has relied heavily on Ms. Antonius’ communications. He maintains that counselling with Ms. Botten stopped because the children did not want to go anymore. [ 12 ] Mr. Katuski denies having made disparaging comments about Ms.

Katuski to their sons and denies that he has engaged in any controlling or abusive behaviour, either in relation to Ms. Katuski or their children. [ 13 ] Because Mr. Katuski is heavily involved in M’s hockey, he submits that he alone should make decisions related to that issue. He is prepared to share other decision-making responsibilities with Ms. Katuski. [ 14 ] Mr. Katuski denies that he failed to comply with previous disclosure orders, maintaining that he had provided full disclosure

to the end of 2019 to Ms. Katuski’s prior counsel. [ 15 ] He also submits that some of the returns were only prepared in 2020. He provides no other explanation for the late filing of his disclosure materials four days prior to the Application. He nonetheless submits that it would be unfair to this Court to require it to decide the spousal support issue because of the late disclosure and the lack of Questioning on the disclosure materials. [ 16 ] Mr. Katuski disputes Ms.

Katuski’s submissions in relation to his income, maintaining that his claimed business expenses are properly deducted from his income and should remain so for guideline purposes. [ 17 ] Mr. Katuski’s position in relation to spousal support changed somewhat between the time of his Concise Letter and the Application which was heard 13 days later. At the hearing of the Application, Mr. Katuski acknowledged that there is some entitlement to spousal support, but maintained that that issue might have to be determined at trial. Similarly, Mr. Katuski maintained that any retroactive award is a trial issue.

Furthermore, Mr. Katuski maintains that Ms. Katuski has adequate training and an education and can, therefore, be entirely self-sufficient. This was the basis for his original position, in his Concise Letter of March 3 of 2021, that Ms. Katuski was not entitled to spousal support. He was then of the opinion that Ms. Katuski had the same job qualifications as she had at the time of the marriage and has established an ability to earn an income of $74,000 per year. Analysis 1) Parenting

Schedule for M

a) Evidence of Significance to this Issue [ 18 ] Of particular relevance to this issue is correspondence provided by Ms. Botten and Ms. Antonius. Because of its importance in my determination of this issue, I will include specific excerpts from this correspondence. [ 19 ] Ms. Botten, a registered psychologist, provided an undated letter following her three one hour counselling sessions with N and M. She indicates that her letter will set out key points that the boys had agreed could be shared with their parents.

Portions of the letter include the following: …[N] and [M] are showing signs of significant stress given your marital discord and the high-conflict separation. They are tired of the conflict, they have been caught in the cross-fire, they at times pick sides (now they are trying really hard to stay out of it), they feel a sense of guilt and obligation to see each of you, and overall, they are trying to live a normal teen and pre-teen life.

I have let them know that my “rules for divorcing parents” include: no talk of court with the children, especially money issues; no use of the children as messengers but rather communicate between the parents; no badmouthing of the other parent (each child has a part of both parents within them, so when you criticize the other parent, you are criticizing your child, psychologists view this as emotional abuse); and no putting adult decisions onto the children, especially if there will be messages of guilt (parents need to set the access schedule, taking into account children’s preferences, needs of the child, everyone’s

schedule of activities, work, recreational, etc, and give no messages of guilt). [N] and [M] feel you are both guilty of breaking these rules.

I have let them know that children of divorcing parents need to not pick sides as they are allowed (and need) to love both parents; need to stay out of the parental arguments; need to stay out of adult issues and decisions (they can offer opinions and state their wishes, but ultimately adults need to make adult decisions). … Both [N] and [M] do not like either of your questions/statements of “when are you coming back to this house?”, or some reference to wanting to see or do something with them, as they end up feeling guilty and are less likely to want to switch houses.

I explained that this is a downfall of not sticking to a set schedule. Both [N] and [M] like a more flexible

schedule as they feel it is the best way to accommodate their schedules of hockey, work, etc. … Both felt it would be reasonable to switch by seven days, so maybe try to not ask (what they perceive as guilt-questions) prior to the 7 th day of them being at your house. I think both of them are impacted by the stress they perceive between you and if one of you is badmouthing the other, there is a good chance that they will want to switch houses. … Your children want to spend time with each of you, but they first and foremost need to know that important events in their life will be able to happen… [ 20 ] Ms.

Antonius’ Interim Report is dated April 2, 2020. Relevant portions of this Report include: …mother called the office requesting to speak with counsel for the children and inquired if counsel was going to “interrogate” the children… It is clear that the oldest child, [N]’s, views are independent and he is quite clear that he would like input on where he would be spending time and with which parent and therefore, I am able to provide an instructional advocate role with regards to [N].

I am concerned with the youngest, [M]’s comment that “she has more time than is court ordered” as this indicates that he is not forming his own independent view. With regards to [M], I would provide information to the courts based on my observations and interaction with the children in order to assist the court to determine what is in the best interest of the child especially since the youngest child has not provided or is unable to provide his preference…at this point, I would require additional meetings with the youngest child to further explore his position.

It is clear that he is not comfortable sharing his preferences and based on his comments that “she gets more time than is court ordered” an adverse inference can be made as to the source of this information is not of his own opinion. … I believe the youngest child is capable of making up his mind without the influence of either parent. However, the conflict between the parents has placed him in a difficult situation and it is clear in our interactions that he has been provided with information regarding the mother’s parenting time as being more than what is court ordered. [ 21 ] At the end of her Report, Ms.

Antonius recommended that both parents complete the Parenting After Separation and the High-

Conflict Parenting After Separation courses, as well as the Focus on Communication course. [ 22 ] In her letter dated July 22, 2020, Ms. Antonius stated, in part: While what is in the best interest of the children is to have shared parenting, and I agree with this, I would like to meet with the youngest child one more time to determine if he does have an independent view on this matter. [ 23 ] In her letter dated August 21, 2020, Ms.

Antonius stated, in part, that M’s instructions were as follows: • Mom is to have parenting time every second weekend commencing on Wednesday after school to Sundays; • No more counselling unless he chooses; • Dad is to have sole decision-making regarding hockey, mom can attend and be responsible for his transportation to and from hockey during her parenting time; • Both parents are to cease further court proceedings and his position is that the parents are wasting money on legal fees. (Emphasis added) [ 24 ] Ms.

Antonius went on to indicate that she had no concerns that M was influenced by anyone and that his instructions were his position and preference. She asked the parents not to discuss the matter further with M or to make the boys feel bad for their decisions. [ 25 ] Just prior to the Application, Ms. Antonius provided a further letter, dated March 12, 2021, which stated that M had provided her with further instructions that day to advise this Court that: 1. My parents need to grow up and put their egos aside. 2.

This is not my problem; it should not be up to me because I would prefer both my parents to be happy and I do not want to hurt anyone’s feelings. 3. I need both my parents to support me in my hockey career. [ 26 ] As is often the case in these matters, some of the contents of the parties’ affidavits are hearsay. Other parts are a party’s

interpretation of the other party’s actions. That is why the professional impressions of individuals such as Ms. Botten and Ms. Antonius, who have the opportunity to interact with the parties and their children outside of the courtroom, can provide valuable information to the Court.

In matters of this type, it is also often an unfortunate practice of some parties to attach many pages of material to their affidavits which are often not relevant to an issue before the Court and may be interpreted as an attempt to embarrass or malign the other party. [ 27 ] In the approximately 1168 pages of material filed in connection with this Application, some documentary evidence was particularly germane to the arguments advanced in this Application. Attached as Exhibit E to Ms. Katuski’s Affidavit of February 1, 2021, are a series of text and email exchanges between the parties. Mr.

Katuski’s Affidavit of January 14, 2021, also contains copies of a series of email exchanges between the parties. In an email to Ms. Katuski dated December 6, 2020, Mr. Katuski included the following comments: ...We are actually going to blow another $10 000 arguing over something that the boys control anyways. It is ridiculous. I see nothing useful coming from going to court again. ...I just want our kids try [sic] have good opportunities and make the best of this shitty situation. If we gouge each other, that will not happen. [M’s] hockey is important to him but it may not be an option after this season.

I can’t keep throwing cash away and be able to support that. On top of all of this crap, I just took a 15% pay cut. Not sure how stable Mitch is, I may need to look at other options. Honestly, if I sell the farm and don’t have a serious job here, I have no reason to stay. I can buy what I already have cheaper in other locations. This by no means is a threat, I just want to be honest with you. I’m getting tired Theresa, I want to move on. No one except Glenn and Marc benefit from this taking forever. My guy actually said this could take years to finalize. I bet they would love that.

I want to settle and move forward. ... This excerpt from this particular email is similar to the content of many of the other email and text exchanges. It is clear that Mr. Katuski does not wish to litigate and has been pressing Ms. Katuski to attend mediation for the purposes of resolving their dispute. It is also clear that Ms. Katuski does not trust Mr. Katuski and is unwilling to attend mediation unless certain preconditions are met. [ 28 ] In one of their text exchanges, Ms. Katuski asked Mr. Katuski if he had finished the Parenting after Separation course.

She referred to having obtained some information in the Parenting after Separation course specifically designed for high-conflict situations. At the Application, in response to my inquiry, Ms. Katuski confirmed that she had taken all of the parenting courses offered through the Court. Mr. Katuski indicated that he had taken the required course (which I took to mean the basic Parenting after Separation course) but had not taken any of the others. I note that by that time, Mr. Katuski had had almost a full year in which to take the courses that Ms. Antonius had recommended in her Interim Report.

b) Conclusions re: Parenting

Schedule [ 29 ] If Mr. Katuski believes that a 12 year old child should make fundamental decisions, such as where he will live, then I have serious concerns about his parenting ability. However, I would hope that Mr. Katuski would not take the position that M, at 12, should be able to decide that he wishes to move in with an 18 year old friend, just as I would hope that he would not be willing to allow M to decide that he does not wish to go to school and that he would prefer to spend his days drinking and taking drugs. I am satisfied that Mr. Katuski’s stated view, that he and Ms.

Katuski should do what M says, is restricted to those issues where M’s stated view aligns with Mr. Katuski’s. [ 30 ] Furthermore, in this case, I am satisfied that M has been heavily influenced by Mr. Katuski. For his part, Mr. Katuski has

chosen to discount or ignore the advice and recommendations provided by Ms. Botten and Ms. Antonius. [ 31 ] Although Ms. Antonius came to the conclusion that M’s instructions, reflected in her August 21, 2020 letter, were his own and had not been influenced by anyone, given the contents of the email exchanges and the similarity of the wording and the position taken therein to the position taken by Mr. Katuski in his correspondence with Ms. Katuski, I do not come to the same conclusion. To the contrary, in light of all of the material that is before this Court, I conclude that there is merit to Ms.

Katuski’s suggestion that Mr. Katuski has been influencing their sons, likely exerting some pressure on them to adopt his viewpoint. Indeed, from M’s comments to Ms. Antonius immediately preceeding this Application, it is clear that the significant stress, guilt and other negative emotions referred to by Ms. Botten have not been alleviated in the year since their last counselling session with her. I conclude that the reason there has been no change in how the boys are feeling is there has been no appreciable change in their parents’ conflict and resulting behaviour. Ms.

Katuski has indicated a willingness to affect change by taking the courses recommended by Ms. Antonius. Mr. Katuski has not done so. [ 32 ] Given the current situation, I conclude that a parallel parenting regime should be implemented and that M should spend alternating weeks with each of his parents. If this does not result in a reduction in the parental conflict or result in a reduction of Mr. Katuski’s attempts to limit M’s relationship with his mother, it may be that there will have to be a future change in care (with Ms.

Katuski to have primary care of M), at least for such period of time as may be necessary to repair the damage that has been caused to the relationship between Ms. Katuski and her sons. I encourage the parties to change their attitudes and behaviours to avoid the ongoing conflict which is so harmful to their sons. [ 33 ] The alternating week

schedule is to commence as soon as possible and, in any event, no later than July 5 th . Should the parties not be able to reach agreement on the specific time or place for the exchange, they are to notify my assistant immediately so that I may make that determination. [ 34 ] It is clear that M’s hockey is very important to him. Therefore, both parents are directed to ensure that M may participate in his hockey activities while in their respective care.

The parent in whose care M is at any given time will be responsible for ensuring that M is able attend all practices, games, tournaments and the like that are part of his hockey activity. Should any dispute arise in relation to M’s participation in hockey, M shall provide Ms. Antonius with his views in relation to such issue prior to any application being made to the Court to settle that dispute. [ 35 ] Day to day decisions shall be made by the parent in whose care M is at the time such decision must be made.

Major decisions, such as school, healthcare (other than in case of emergency), religious instruction, extra-curricular activities (other than hockey) and the like shall be joint responsibilities. 2) Counselling [ 36 ] Justice Neufeld ordered N and M to begin counselling. Because he did not specify that counselling should continue until the counsellor felt it was no longer necessary, the Order is not technically breached. However, given Ms. Botten’s comments, I find that the termination of counselling after three sessions was certainly not in keeping with the spirit of Justice Neufeld’s Order. Ms.

Botten was clearly of the view that the boys were under considerable stress and were suffering the negative affects of their parents’ conflict. I also find it unlikely to be a coincidence that the children ceased counselling shortly after Ms. Botten’s letter pointing out the inappropriateness of the parties’ conduct and indicating that their sons thought it would be reasonable to have an alternating week schedule. [ 37 ] Given the contents of Ms. Botten’s letter, having the boys cease counselling cannot be viewed as a sensible or responsible parenting decision. Counselling is a type of healthcare.

Just as it would not be a wise parenting decision to allow a child to cease life saving medical treatment because they did not like it, it is not a wise parenting decision to allow children to cease treatment for mental or emotional health issues. That health issue had been clearly identified here and had not yet been addressed. While I do not discount the suggestion made by Ms. Katuski that Mr. Katuski was the reason that counselling stopped, because he did not like what Ms.

Botten was saying, even if she is incorrect, a parent concerned about the emotional and psychological health of their children would have maintained continued counselling in these circumstances. [ 38 ] Ms. Antonius’ March 12, 2021 letter makes it clear that M continues to feel the effects of his parents’ conflict. I conclude that it would be in his best interests to return to counselling with Ms. Botten and that such counselling should continue for such period of time as Ms. Botten feels is appropriate. In addition, if Ms.

Botten is of the view that some form of reunification or other therapy is required, that too ought to be pursued in accordance with her recommendations. I therefore direct that M return to counselling with Ms. Botten as soon as Ms. Botten has an appointment available for that purpose. M is to continue with counselling until Ms. Botten is satisfied that M no longer requires counselling. The Order resulting from these Reasons should stipulate that Mr. Katuski’s consent to counselling is not required and that Ms. Katuski can make arrangements for the appointments should Mr.

Katuski not cooperate in making those arrangements. [ 39 ] Although N is almost an adult, for such time as he remains a child, he should also resume counselling with Ms. Botten. Ms. Botten can determine whether, given N’s age, there is any benefit to be derived from his continuation of counselling with her. 3) Spousal Support [ 40 ] Mr. Katuski has now changed his original position and acknowledges that Ms. Katuski is entitled to some spousal support. I reject his suggestion that this issue should be determined at trial. If, as Mr.

Katuski submits, it is unfair to place the Court in the position of deciding this issue because of the lack of appropriate evidence, that unfairness falls at the feet of Mr. Katuski. Information required to complete an appropriate guideline income calculation for him is within his knowledge and control. Given that Mr. Katuski is self- employed and has provided no supporting documentation in relation to the significant expenses claimed by him, I am persuaded that there is merit to Ms. Katuski’s argument that his expenses ought to be added back in to his income until proper supporting documentation

has been provided and an expert report or reports have been prepared to address this issue. There is no reason why Ms. Katuski should be required to wait until a trial, particularly when her greatest need for support was immediately following the separation. [ 41 ] Rather than try to guess what a more appropriate expense rate ought to be in relation to certain expense categories that will likely be added back, in whole or in part, for guideline purposes, until the matter can be finally determined at a trial or through agreement, I will use Mr.

Katuski’s line 150 income but award spousal support based on the highest end of the Spousal Support Advisory Guideline range. Interim without prejudice spousal support shall be calculated on this basis and shall be retroactive to December 1, 2018. [ 42 ] Given the level of conflict between the parties, it is important that as many issues as possible be determined with finality at the earliest possible opportunity. It seems unlikely that a trial can be avoided, given the position taken by the parties. Therefore, the parties are directed to prepare a litigation plan to move this matter to trial as soon as possible.

If the parties are unable to agree on a litigation plan, they are to each prepare a proposed plan for consideration by the Court. [ 43 ] To facilitate this, Ms. Katuski is to provide, through counsel, a list of any further disclosure that in her view must be provided in order to complete the financial analysis required in connection with a determination of Mr. Katuski’s income. In addition, she should provide a list of any appraisals or other processes required in order to determine the value of matrimonial property. That is to be provided within 30 days of the date of receipt of these Reasons for Decision.

Following receipt of the list of items being requested by Ms. Katuski, Mr. Katuski shall have a period of 60 days in which to either: provide the information or documentation; provide his advice as to the reason why a delay may be necessary and the anticipated length of the delay to obtain that information or documentation; or apply to Court for advice and direction in respect of any disputed requests. Costs [ 44 ] Ms. Katuski is entitled to costs of this Application.

If the parties are unable to agree on the quantum of costs, they are to contact my assistant within 30 days of receipt of these Reasons. [ 45 ] In addition, if the parties require any clarification in respect of the decisions contained in these Reasons, or to settle the terms of the resulting Order, they are to contact my assistant within 30 days to arrange an appearance at which those matters may be addressed. Heard on the 16 th day of March, 2021. Dated at the City of Grande Prairie, Alberta this 16 th day of June, 2021. D.L. Shelley J.C.Q.B.A.

Appearances: Glenn Taylor for the Plaintiff Marc Delacruz for the Defendant