Logan v Fee, 2021 ABQB 720

Court of Queen’s Bench of Alberta Citation: Logan v Fee, 2021 ABQB 720 Date: 20210909 Docket: 4804 012270 Registry: Grande Prairie Between: Angela Danielle Logan Plaintiff - and - Darcy Robert Fee Defendant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Nature of the Application [ 1 ] Mr. Fee applies for a variation of the existing Parenting Order, which was granted on June 26, 2020, and ancillary relief. [ 2 ] Ms. Logan cross-applies for ongoing and retroactive child support, s. 7 expenses, and ancillary relief.

Preliminary Procedural Issues [ 3 ] The matter was set for Special Chambers well in advance of the hearing date. Correspondence from counsel indicated that, if the parties were unable to resolve the matter in advance of the hearing, they intended to rely on 10 previously filed affidavits. Affidavits in support of the application were still being filed on June 25 th and briefs/concise letters related to the application were filed on June 25 th and July 5 th . Clearly, the filing deadlines and the document number and length restrictions, as set out in the Court’s Practice Notes, were not complied with in this case.

The Court nonetheless allowed the matter to proceed but cautions the parties, and their counsel, that continued breaches of the filing deadlines and limitations related to such matters may result in future scheduled appearances not proceeding until practice directives have been complied with. Background [ 4 ] The parties separated in January of 2020. Thus far the litigation can fairly be characterized as high conflict, as evidenced by the involvement of at least five Justices of this Court and multiple appearances in the approximately 18 months between separation and this application. Ms.

Logan’s written materials also indicated that Mr. Fee filed an application, returnable a week before this special Chambers application, seeking to force the sale of the matrimonial home, where Ms. Logan and the children reside. I mention this because it is a further indication of the level of conflict between these parties. [ 5 ] The parties have three children, currently aged 13, 11 and 5. The Court ordered, and now has the benefit of, a Voice of the Child report prepared by therapist Charlene Eckstrom in relation to the two eldest children. Position of the Parties Position of Mr. Fee [ 6 ] Mr.

Fee seeks a 50/50 shared parenting regime. He submits that transitioning to this type of regime would provide the children with a regular, stable routine and certainty in their lives. Mr. Logan had originally suggested that there be a further Voice of the Child report prepared after a three month transition period. When that was not acceptable to Ms. Logan, he then proposed a transition period through to the end of August 2021, with 50/50 shared parenting to begin prior to the new school year. [ 7 ] Mr. Fee states that he cooperated fully with Ms. Eckstrom.

Additionally, he submits that he has taken proactive, positive steps to address concerns regarding his mental health, even though he submits there have been no grounds to compel him to do so. He further submits that Ms. Logan has been unwilling to support his relationship with the children and has continued to suggest that he has a diminished ability to parent even though she has provided no evidence of same. For his part, he submits that he has completed parenting courses and has provided a letter from his psychiatrist as well as a psychologist, which confirm his ability to parent. [ 8 ] Mr.

Fee submits that he has been paying monthly child support of $1,651.50 since May of 2020 based on his prior annual income of $85,500.00, notwithstanding that there was no Order for same. He submits that his income is currently “negligible” because he has begun working through his own corporation and his expenses have exceeded his earnings to date. He therefore suggests that ongoing child support should be paid to him by Ms. Logan, once the shared parenting arrangement is in place. Position of Ms. Logan [ 9 ] While Ms.

Logan agrees that there should be a transition to shared parenting, her proposal for the transition period differs substantially from Mr. Fee’s. Ms. Logan submits that the transition should be more gradual, beginning with an expansion of overnights on weekends, moving to a 4/4 alternating

schedule for a period of time, and then moving to a shared 7/7

schedule at the end of school in 2022. [ 10 ] Ms. Logan submits that Mr. Fee should cease therapy with his existing psychiatrist because she does not believe that the psychiatrist is impartial and he is not a family counselor. She has suggested instead that Mr. Logan should commence counseling with Dr. Steven Carter, or someone like him. She is of the opinion that, because this is a high conflict situation, Dr. Carter would be a better position to deal with the parties’ issues than would a psychiatrist. Ms. Logan is of the view that Mr. Fee’s mental health issues worsened because of the separation.

By way of example, Ms. Logan points to various incidents; in particular, she points to an incident that occurred on July 4 th . [ 11 ] Ms. Logan submits that the children should undergo counseling once per week. She suggests Ms. Botten, as the children received counseling from her in the past. [ 12 ] Ms. Logan points out that Mr. Fee is an experienced journeyman carpenter with a reputation in the community that has been established over a period of approximately 20 years.

She suggests that a reasonable income to be imputed to him is $60,000.00 per year, until his corporate income, and resulting guideline income, can be properly evaluated. Other Areas of Disagreement [ 13 ] Mr. Fee submits that he paid a lump sum into the parties’ bank account before he commenced making regular monthly payments of child support. Ms. Logan submits that two thirds of these funds went to pay an over draft in the account and that she did not have use of any of the rest of it. She therefore maintains that there are arrears of child support owing by Mr. Fee.

[ 14 ] The parties also disagree in relation to s. 7 expenses. Ms. Logan claims s. 7 expenses of approximately $25,000.00. Mr. Fee submits that he was not consulted on most of these expenses and should therefore not have to pay anything toward them. Furthermore, he believes that the children are enrolled in too many activities (for example additional camps) and that he cannot afford to pay for these additional activities. His major issue, however, is with respect to the counseling costs, both those already incurred and those proposed by Ms. Logan. Ms.

Logan submits that the children’s activities are similar to those in which they participated pre-separation. [ 15 ] Exchanges have been an issue and therefore the parties require a manner of dealing with the exchanges of the children. Mr. Fee submits that he ought to be able to pick up the children on his time. Ms. Logan submits that her parents should continue to pick up the children from school and that the children should remain in their care every day until 6 pm.

She submits that this is a situation that has been in place for some time and that maintaining this practice will provide consistency and allow the children to maintain the relationship with their grandparents. [ 16 ] The parties disagree with respect to a Christmas schedule. They also disagree on whether each of them ought to be required to ensure that the children attend all of their scheduled activities while in their respective care. Analysis [ 17 ] Unlike this Court, Ms. Eckstrom has had the benefit of speaking to the parties’ two oldest children. Based upon their ages and Ms.

Eckstrom’s comments, I am satisfied that the children are able to frankly express their feelings and opinions in relation to their parents. I am satisfied that they both wish to spend an increased amount of time with Mr. Fee. However, given Ms. Eckstrom’s Report and the other evidence that is before the Court, I have concluded that it is not appropriate to transition to a 50/50 shared parenting regime in the manner proposed by Mr. Fee. Among other comments and observations of Ms. Eckstrom, I consider the following to be of considerable relevance: • “[B] and [A] described having a fulfilled life with their mother.

They had set routines and structures in their mother’s home and are accustomed to this”. • “Both children stated in their own ways that they have a strong bond and attachment to their mother, and [A] and [B] said that it is difficult for them to be away from their mother for too long periods of time”. • “In consideration to what [A] and [B] disclosed and presented to this writer, this writer would suggest that if more parenting time is awarded to Mr.

Fee, that the time be done gradually to help the children adjust to the changes and reassessed to look at how the children are adapting ”. [Emphasis added] • “...this writer recommends that each parental home has similar structures and routines, including bedtimes, boundaries, similar expectation of chores, rules for the use of electronics, and behavioural management techniques.

Having similar structures and routines helps ensure that the differences between households is less pronounced and eases with the transition between homes for children”. [ 18 ] I find it telling that neither of the parties, who would have reviewed Ms. Eckstrom’s letter with their counsel, chose not to inquire further of Ms. Eckstrom regarding what she meant when she referred to increasing Mr. Fee’s parenting time “gradually”.

Instead, they took very different positions on how the transition should be affected, and what a gradual transition meant; again, highlighting the lack of cooperation between them. [ 19 ] To be clear, this is not a one-sided lack of cooperation. Neither party seems particularly interested in working with the other for the benefit of their children. Mr. Fee has a poor recollection of events, either deliberately or perhaps because his memories are significantly impacted by his emotional state during the events.

Furthermore, it is clear that he attempts to rationalize or provides incredible explanations for actions that tend to paint him in a negative light. For example, his actions in connection with the July 4 incident evidence poor parenting decisions. Sending a text to his 11 year old daughter, advising her that her beloved grand-mother was “breaking the law”, was not only incorrect, it was an example of giving no thought to the upset he might cause his daughter. Presumably, this was because he was focused on fighting with, and finding fault with, Ms. Logan and her parents.

Apart from the fact that he had the facts wrong, and that no law was being broken on the evidence put before this Court, involving an 11 year old child would not be an appropriate way of handling a concern regarding the legality of an adult’s actions. I found his explanation of this incident, fully canvased with the parties at the Application, to be contradictory and not credible. [ 20 ] For her part, Ms. Botten’s position gives the impression that she wishes to control everything.

While she may have legitimate concerns that need to be addressed, she goes too far in attempting to dictate the type of assistance Mr. Fee should receive for his admitted mental health issues. Mr. Fee has a long-established relationship with a psychiatrist which should not be disturbed in the absence of very good reason, since it appears from all the evidence to be benefitting Mr. Fee (as was noted by Ms. Botten in her Report). Ms. Logan’s unsubstantiated concerns about the psychiatrist are not sufficient to disturb such an important pre-existing professional relationship. Furthermore, Mr.

Fee’s individualized counselling for his mental health issues are separate and apart from the professional help which may be needed to address the interpersonal conflict between the parties. Dr. Carter, or someone like him, may well be the most appropriate person to address the parenting issues and the conflict between these parents. However, he is not a substitute for the professional assistance that has been provided by Mr. Fee’s psychiatrist in relation to his mental health issues. [ 21 ] I conclude, in relation to parenting, that the more gradual transition proposed by Ms.

Logan is more likely to accord with that recommended by Ms. Botten in her Report to the Court. Therefore, if this has not already occurred, Mr. Fee’s weekend parenting time is to be extended, effective immediately, so that he has an additional day (Sunday) to 7:00 pm. Beginning with the November 5 weekend, Mr. Fee’s parenting time will be further extended for one additional day, to 7:00 pm on Monday. [ 22 ] The children are to continue counselling with Ms. Botten, the timing and frequency of such counselling to be determined by Ms. Botten. In January of 2022, Ms.

Botten is to provide an update Voice of the Child Report, providing information concerning the children’s adjustment to the increased parenting time. Following receipt of that Report (and not before), either party may apply for

further variation of the parenting schedule. Both parties are to cooperate fully with Ms. Botten, to ensure that she is able to meet with the children when she feels it is appropriate or necessary for her to do so. [ 23 ] The party in whose care the children are at the time of an exchange is responsible for ensuring the children are dropped off to the other party’s care. They may do so personally or through a third party chosen by them. To clarify, at such time as Mr. Fee’s parenting time falls during school time, he is at liberty to pick the children up from school.

There are many ways for the children’s relationship with the maternal grandparents to be maintained. Improving their relationship with their father must be the focus at this time. Picking up the children at school will facilitate the establishment of a more normal day-to-day

schedule that involves their father. [ 24 ] For Christmas 2021/2022, the children will alternate between their parents’ homes as follows: from the end of school on the day that the Christmas holiday begins, they will be picked up after school by their father and spend the next two days (until 7:00 pm) with him. They will then spend the next two days with their mother (also to 7:00 pm). This 2 day alternating (to 7:00 pm on the exchange day) will continue until the Christmas holiday period ends and school recommences, whereupon the normal

schedule will resume. [ 25 ] Until Mr. Fee’s guideline income can be established, his guideline income will be imputed at $60,000 per annum. In that regard, Mr. Fee is to ensure that he obtains and/or files all required financial statements and tax returns, both corporate and personal, by no later than the respective filing deadline and provides copies to Ms. Logan at such time. He is also to provide all other relevant financial disclosure, both personal and corporate, including but not limited to any as may be requested by Ms. Logan. Until otherwise determined, Mr.

Fee will pay child support based on the imputed income, such child support to commence effective August 1, 2021. [ 26 ] Given the position taken by the parties in respect of payments made following separation, as well as their disagreement regarding s 7 expenses claimed to date, the question of s 3 and s 7 arrears will be reserved. Should the matrimonial home or any other matrimonial assets be sold, any proceeds from such sales will be held in trust by counsel pending a determination of the amount of any s 3 or s 7 arrears, unless the parties otherwise agree.

In addition to the s 3 child support and the s 7 counselling expenses provided for above, on an ongoing basis, Mr. Fee shall pay his proportionate share of extra-curricular activity expenses to a maximum of $300 per month, unless he has agreed in writing in advance to bear an additional amount. This limitation, however, does not preclude Ms. Logan from arguing at trial that there were other s 7 expenses for which Mr. Fee ought to have paid his proportionate share.

However, in relation to future s 7 expenses proposed to be incurred by her (that is, any proposed after the date of these Reasons), she is to provide notice to Mr. Fee and her ability to collect his proportionate share shall be limited as provided herein. [ 27 ] As for the children’s involvement in extra-curricular activities, subject to the future monetary limitation set out above, from the date of these Reasons either party may enroll each of the children in only one extra-curricular activity during any given time-period without the consent of the other party.

To clarify, neither party will involve each of the children in overlapping activities but will ensure that they will have committed each child to no more than one activity at a time, in the absence of agreement otherwise. This will continue until the parties otherwise agree or the Court otherwise orders. In that regard, neither party will bring an application in respect of extra- curricular activities until after Ms. Botten’s update Report has been received. Further in that regard, Ms.

Botten is to be asked to canvass the children’s wishes in relation to extra-curricular activities (as to both the nature and number of their preferences) so that her update Report can address that issue. In the interim, it would certainly be unfortunate if the limitation set out in this paragraph were to result in any of the children being denied the opportunity to engage in extra-curricular activity or activities that they might otherwise enjoy. However, at this time, it is more important to stop the arguing between the parties. Should Ms.

Botten’s Report disclose that the lack of cooperation has resulted in any of the children feeling that they have been denied an activity that they would otherwise have wanted to participate in, this may well be an important factor in future determinations of this Court in relation to parental decision-making and scheduling issues. [ 28 ] Each of the parties will be responsible for ensuring the attendance of each child at the extra-curricular activities permitted pursuant to the foregoing paragraph of these Reasons, when a child is in their care during a time at which such activity is scheduled. [ 29 ] Mr.

Fee is encouraged to continue to obtain assistance in connection with his mental health issues. The children are to continue counselling with Ms. Botten as previously directed in these Reasons. At this time, I am not directing counselling with Dr. Carter or someone similar, but I do encourage the parties to consider this, as high conflict between them can have long lasting significant negative consequences for the well-being of their children. And if they cannot agree on this type of counselling, there is nothing to prevent one of them from seeking it on their own.

It is important that they learn to co-parent cooperatively for the health and well-being of their children. [ 30 ] Should counsel require any clarification in order to finalize the terms of the resulting Order, or if I have failed to address any consequential details arising from these Reasons, counsel are to contact my assistant within 30 days to arrange a time and manner in which such matters may be addressed. [ 31 ] I find that both parties have contributed to the continued conflict between them and both have taken unreasonable positions in respect of some of the issues raised in this Application.

Accordingly, each party will bear their own cost in connection with this Application. Heard on the 6 th day of July, 2021. Dated at the City of Grande Prairie, Alberta this 9 th day of September, 2021.

D.L. Shelley J.C.Q.B.A. Appearances: Glenn A. Taylor Taylor & Company for the Plaintiff Melissa J. Erickson Erickson Law for the Defendant