Thierman v Tymchuk, 2021 ABQB 902

Court of Queen’s Bench of Alberta Citation: Thierman v Tymchuk, 2021 ABQB 902 Date: 20211112 Docket: FL03 62706 Registry: Edmonton Between: David Thierman Applicant - and - Trish Tymchuk Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice G.R. Fraser _______________________________________________________ [ 1 ] The parties in this matter seek a determination of various parenting issues. Mr. Thierman seeks an increase in his parenting time. Ms. Tymchuk seeks to have Mr. Thierman declared to be in loco parentis regarding her two older children.

They are also seeking a determination of retroactive and ongoing child support. Background [ 2 ] The parties were never married. They began to date in 2013. At some point, they cohabited. It is difficult to determine

exactly when and for how long they cohabited, as there were often temporary separations. However, they seem to agree that they did at times cohabit between 2015 and 2017. They agreed that they finally separated in June 2018. [ 3 ] Ms. Tymchuk has two children from a previous relationship. The eldest was born in November 2004, the younger born in February 2006. The parties have two children together, a daughter born April 2015 and a son born August 2016. [ 4 ] Initially after separation, the parties reached an amicable, informal parenting arrangement. Mr.

Thierman would see the children on alternate weekends, and spend some time with them during the week. This arrangement changed in January 2020 when Mr. Thierman entered treatment for an alcohol addiction. He had little contact with the children from February 2020 until December 2020. [ 5 ] In order to try and re-obtain time with his children, Mr. Thierman turned to the courts. Unfortunately, COVID intervened and slowed the process. An Early Intervention Case Conference was conducted in November 2020 which resulted in Mr. Thierman receiving scheduled parenting time during the day on weekends.

A consent order was reached on March 15, 2021 that gave Mr. Thierman parenting time on alternate weekends from Friday to Sunday, as well as time on alternate Thursdays after school. The order also required Mr. Thierman to undergo liver enzyme testing every two weeks to demonstrate his sobriety. [ 6 ] Both orders specifically stated that Mr. Thierman’s status regarding the two older children was still to be determined. The March 2021 order required him to pay monthly child support for two children of $1,214 based on an income of $83,000. The support order was effective as of December 1, 2020.

That order also sent the parties to special chambers to try and settle the rest of the issues. [ 7 ] The parties disagree as to whether Mr. Thierman has followed the March 2021 order. He says that he is always tried to exercise his parenting time, and it is sometimes frustrated by Ms. Tymchuk. In contrast, she says that Mr. Theirman does not properly exercise his parenting time. Instead, he picks up the children then leaves them with someone else, usually his mother. [ 8 ] The parties agree that Mr. Theirman has had significant difficulties with alcohol. He has been in residential treatment more than once.

He has been intoxicated while exercising parenting time with the children. To his credit, he realized that his alcohol use was incompatible with his parenting. In 2020, he voluntarily stopped exercising his parenting time and entered treatment. [ 9 ] Mr. Theirman claims he has abstained from alcohol since he completed his treatment in June 2020. Ms. Tymchuk does not accept his claim, and cites the various things that lead her to suspect he is still using alcohol. Mr. Theirman has followed the court ordered direction that he obtained biweekly liver enzyme tests and provide the results to Ms. Tymchuk.

She claims those results do not show that he has maintained sobriety. [ 10 ] Regarding the two older children, Ms. Tymchuk claims that prior to separation they had a significant relationship with Mr. Theirman. The children have had no contact with their biological father since 2008. Mr. Theirman came into their lives when they were eight and six years old. While the parties were together, Ms. Tymchuck claims he participated in all the activities one would usually expect of a parent. They all attended family functions together. He participated in their schooling and their extracurricular activities.

He financially supported them while the parties were in a relationship. [ 11 ] After the parties separated, Ms. Tymchuk submits that Mr. Theirman remained involved with the non-biological children. The older child would “tag along” with him while he had parenting time with the younger two children. He also on at least one occasion directly provided the older two children with some money when they requested it. [ 12 ] In contrast, Mr. Theirman submits that he did not have a close relationship with the two older children. It is his position that he was never involved in caring for the children.

He never exercised any form of control or influence over the children. It is his position that he and the older children never interacted as a family unit. He does agree that he included the two older children on his benefits plan, but only to appease Ms. Tymchuk and because it did not involve any increased financial cost to him. [ 13 ] Mr. Theirman submits that the older children never recognized him as a father figure, they never called him dad. Since the parties separated, the older children have actively refrained from interacting with him.

As proof, he provides threatening, derogatory text messages from the older child. The text messages clearly indicate that the older child does not want Mr. Theirman anywhere near him, his sister, or his mother. It is also apparent from those text messages that the older child is aware of the legal proceedings going on between the parties. There are frequent references to child support payments. Also, of note is Mr. Theirman’s reply to one of the messages indicating that he cares for the child.

Analysis Parenting [ 14 ] In making any decision regarding parenting, the paramount factor is what is in the best interests of the children. The actions and attitudes of the parties towards each other must be separated from their interactions for the purposes of parenting. [ 15 ] In this case, it is clear that the parties have always had an unstable relationship. Even while they were “together”, Mr. Theirman often spent significant time living somewhere else. Their interactions now do not seem to be cordial.

It is important that they try to put aside their differences and focus on what is in the best interests of the children. [ 16 ] The parties agree that Mr. Theirman has an alcohol issue. It seems likely that he is an alcoholic, although neither party actually used that term. He recently attended a treatment program, and he claims that he has maintained his sobriety since completing the program. Although Ms. Tymchuk is dubious of this claim, she can point to no specific fact to dispute it.

[ 17 ] Mr. Theirman has complied with the liver enzyme tests, as required by a court order. No evidence was provided to show that those tests indicate that he has continued to use alcohol. Ms. Tymchuk believes that he may have been using alcohol prior to some of their phone calls, however can point to nothing specific. Mr. Theirman submits that despite a court order requiring Ms. Tymchuk to do the driving to and from the parenting exchanges, she does not always do so. Mr.

Theirman frequently does the driving both ways, which would seem to demonstrate a lessened concern regarding his possible alcohol use. [ 18 ] I cannot predict the future. Mr. Theirman has attended alcohol treatment in the past, and has relapsed. He claims that this time he will be successful in maintaining his sobriety. I certainly hope that he will be successful, but it is impossible to be certain. He claims that he has been sober since June 2020. There is no evidence to dispute this claim. I take it to be true. [ 19 ] When Mr.

Theirman relapsed in early 2020, he realized his problem and voluntarily ceded his parenting time. This represents insight into his problem. If he has another relapse, I am confident he will take the same steps. I also note that his older biological child is of age where he should be able to express any concerns about his father’s parenting to another adult. [ 20 ] Mr. Theirman’s sobriety, however, does not automatically result in shared parenting. I still must examine what is in the best interests of the children. Even while the parties were together, Mr.

Theirman often left the shared residence for significant periods of time. In his affidavit, he indicates that he would leave for three to four weeks at a time, and that he would leave at least six times a year. He maintains that he always had a separate residence. It was Ms. Tymchuk who had residential care and decision-making responsibility for the children during these times. There is no evidence that he ever tried to take any of the children with him when he left for periods of time. [ 21 ] After the parties separated, Ms. Tymchuk continued to be the primary parent.

The children resided with her at her residence. She was responsible for the day-to-day decision-making regarding the children. Mr. Theirman regularly visited the children at the residence, but there is no evidence indicating they spent long periods of time with him. [ 22 ] I believe that Mr. Theirman is genuine in his desire to have shared parenting with his biological children. I do not believe it is in their best interests at this time. The current parenting order will remain in effect. However, I am prepared to remove the requirement that Mr. Theirman undergo biweekly liver enzyme testing. I believe Mr.

Theirman’s submission that he has maintained sobriety. I am hopeful that he will be able to continue to maintain it. His sobriety will be essential if in the future he seeks to increase his parenting time. [ 23 ] In making this decision, I note that the status quo both pre and post separation has been for the children to reside with their mother with regular access to their father. There is no evidence indicating that she does not provide proper care of the children. There is some evidence that she has either refused or made it difficult for Mr.

Theirman to have parenting time with the children. [ 24 ] I do not find her lack of cooperation in facilitating the children’s visits with their father to be a reason to change the current parenting regime. However, if it continues, it may form a reason not only for an increase in Mr. Theirman’s parenting time, but perhaps a complete shift in parenting. [ 25 ] I do not want to discourage Mr. Theirman’s desire to become more involved in the lives of his children. I find that it is too early to shift to a shared parenting regime. There needs to be a longer record demonstrating Mr.

Theirman’s ability to be an equal-access parent. I am concerned that his mother, the children’s grandmother, is playing an equal role to him during his current parenting time. It seems that her role is more than that of an occasional child care provider, and instead is almost equal to that of a parent. [ 26 ] I certainly do not find the regular involvement of a grandmother to be contrary to the best interests of the children. It is almost always in their best interest to have as many loving, caring people in their lives as possible. I am sure that their paternal grandmother is such a person. I do find that Mr.

Theirman has shifted a significant amount of his parenting responsibilities to his mother. [ 27 ] As is always the case, if there is a change in circumstances, parenting can be revisited. I am also ordering that Mr. Theirman can bring a review of this order in 2023. If everything is going well, it may be appropriate to gradually transition to a shared parenting regime at that time. In loco Parentis [ 28 ] There are many factors to consider when trying to determine whether a person should be found in loco parentis . These factors should be looked at as they existed prior to separation.

Although post-separation conduct may provide some information, it is clear from Chartier v Chartier , [1999] SCR 242 that the existence of a parental relationship is determined while the parties were together. A person cannot unilaterally terminate a parental relationship. [ 29 ] The parties disagree on whether Mr. Theirman actively participated in the lives of the two older children. Although he claims to have had almost no parental interaction with them, I do not believe his claim. He admits in his materials that he provided support for them as they were part of a family unit.

He assisted in providing them with food, clothing, and shelter. He included them on his medical benefits, although doing so cost him nothing financially. [ 30 ] Mr. Theirman submits that he was not involved with the children as a parental figure in any way. Although he attended parent- teacher interviews, it was only to serve as child care for the other children. He was never listed as a parental contact on school forms. He states that he never participated in disciplining the children, and rarely attended any of their activities. [ 31 ] In contrast, Ms.

Tymchuk submits that he participated in all family functions. He was involved with the older children’s gymnastics and soccer, he drove them to various places, and took them on various outings. She also submits that Mr. Theirman provided the older children with a monthly allowance. [ 32 ] Although Mr. Theirman often left the family residence, I do not believe he was completely absent from the lives of the two

older children. I do not believe that the parties had one Christmas for the two biological children that included Mr. Theirman, and a second Christmas that did not include him. The same would apply to birthday parties. [ 33 ] The parties functioned as the family unit for approximately five years. For most of those five years, the non-biological children were too young to be left on their own. They would have had to do things together. I do not believe that Ms. Tymchuk was the only one interacting with the older children while the parties were together.

Her materials state that they all functioned as a family unit, and I believe that they did function as one family. [ 34 ] The children’s biological father had minimal involvement in their lives while Mr. Theirman and Ms. Tymchuk were together. It also seems that they had little contact with his family. In contrast, the older children seem to have had regular contact with Mr. Theirman’s mother. [ 35 ] There is no direct evidence as to whether or not Mr. Theirman ever represented to his family and friends that he was in the role of stepfather to the two older children.

He submits that the children never considered him to be there stepfather. They never called him dad, and they have had little contact with him since the parties separated. The older child has sent threatening text messages indicating he wants no contact with Mr. Theirman. [ 36 ] Chartier , at paragraph 38, specifically states that the views of the children are not determinative of the issue of in loco parentis .

It states “an older child may resent his or her stepparent and reject the authority of that person as a parent, even though, objectively, that person effectively provides for the child and stands in the place of a parent”. [ 37 ] It may well be that the reason the older child sent the threatening texts is that he now felt rejected by his stepfather. The texts certainly indicate that the child expected Mr. Theirman to provide support for him and his sister. The chain of text messages also indicates that Mr. Theirman cares for the child. [ 38 ] When I weigh all of the factors, I find that Mr.

Theirman should be found in loco parentis for the two older children. Child Support [ 39 ] Mr. Theirman works as an employee, and his income is verified by annual T4s. His child support obligations since separation can be calculated now that the issue of in loco parentis has been determined. He has a support obligation for four children. [ 40 ] Ms. Tymchuck has a support order regarding Bernie Halfe, the biological father of the two older children. Sadly, he has chosen to completely ignore his obligation as a father to support his children. As of December 2018, he owed over $57,000 in arrears. Ms.

Tymchuck has not received any financial support from Mr. Halfe since 2015. [ 41 ] Mr. Theirman submits that under s.51 and s.52 of the Alberta Family Law Act , I have the discretion to deviate from the Federal Child Support Guidelines .

It is likely that he is relying on s.51(5) which states: 51(5) Notwithstanding subsection (1), the obligation of a parent to provide child support outweighs the obligation of a person standing in the place of a parent to provide child support and in determining the amount and duration of child support a person standing in the place of a parent must pay, the court shall consider the following: (

a) the amount determined in accordance with the prescribed guidelines; (

b) the amount of child support that is being paid or should be paid by either or both parents of the child; (

c) the duration of the relationship between the person standing in the place of a parent and the child for whose benefit the order is sought; (

d) any other factor that the court considers relevant. [ 42 ] In Reis v Thompson , 2009 ABQB 156 , Justice Read, found, at paragraph 34, that s.51 creates a hierarchy of support such that “ the obligations of those standing in place of a parent are made secondary to those of natural parents.” I concur with her finding. The primary obligation for support of the two older children lies with their biological father. [ 43 ] The problem in the case at bar is that the children’s biological father, Mr. Halfe, has failed to fulfil one of his basic obligations as a parent, that is to support his children.

In Janes v Janes , 1999 ABQB 408 , Justice Veit dealt with similar facts. She found that in situations where the biological parent is not providing financial support, the child support obligation of the step- parent should not be reduced. [ 44 ] I have not been provided with information regarding Mr. Halfe’s monthly child support obligations. I am also unsure if maintenance enforcement is involved in trying to enforce his obligations. I do know that he is not meeting those obligations. [ 45 ] I find that Mr.

Theirman should be responsible for paying child support for the two older children in accordance with the Federal Child Support Guidelines . This support shall continue until each child reaches his or her 18 th birthday. Mr. Theirman is entitled to pursue the children’s biological father, Mr. Halfe, for his portion of the child support.

Section 7 Expenses [ 46 ] The parties are unable to agree on how s.7 expenses should be proportioned. As this was not the focus of the application, I have little evidence on this aspect of the parties’ action. It seems that Ms. Tymchuck does not work full-time. She worked full-time prior to the parties’ relationship. Since the parties separated, her reported income was $17,057 in 2017, $1,261 in 2018, and $17,057 in 2019.

Currently, there is evidence that she works part-time as a cleaner. It is unclear why the children would need full-time childcare if she is working part-time. Additionally, all the children should now be in full time school. It is also unclear why she is unable to secure some sort of full-time employment. [ 47 ] The March 15, 2021 order of my colleague Justice Kraus provides some specifics as to what shall be considered s.7 expenses.

It specifically finds that child care expenses incurred as a result of employment, illness, disability, or education or training for the employment of the parent shall be a s.7 expense. It also finds that the costs of soccer, gymnastics, swimming, and dance shall be s.7 expenses. [ 48 ] Ms. Tymchuck is claiming child care costs as a s.7 expense. Some receipts have been provided. There is one from ABC Child Development Centre dated September 30, 2020, indicating a payment of $3,550. The receipt states that the payment was for the period from January to March 2020.

There is no explanation as to why the receipt for the first quarter would be issued at the end of the third quarter. Attached as an exhibit to Ms. Tymchuck’s affidavit dated November 13, 2020 is a spreadsheet indicating that child care costs were $1,000 per month. That same spreadsheet indicates that the children were not in child care April through December 2020. Mr. Theirman believes that at least some portion of the child care costs may have been subsidized. This is unclear. [ 49 ] I find that the confusion surrounding child care costs must be resolved in favour of Mr. Theirman.

He paid $600 per month towards child care from separation through March 2020. Ms. Tymchuck has submitted in her materials childcare receipts that total $8,350. This means there has been an overpayment regarding s.7 child support of $4,250. Retroactive Support [ 50 ] I find that Ms. Tymchuck is underemployed. She does not seem to be pursuing full-time employment. There is no evidence as to why she could not work full-time. I find that she should have an imputed income of $31,200 per year, equal to minimum wage. Additionally, I find that Mr. Theirman’s payment of Ms.

Tymchuck’s cell phone and car loan costs should be considered as part of his child support. The children benefited from their mother having easy access to transport, and also from her ability to easily be in contact with other people, such as school and caregiver contacts. [ 51 ] Having made these findings, the parties’ income would be as follows: 2018 96,736 31,200 2019 110,014 31,200 2020 88,938 31,200 [ 52 ] Mr.

Thierman’s monthly s.3 child support obligations for four children would be: 2018 $2,225 for six months, as the parties separated in June 2019 $2,503 2020 $2,057 total owed $68,070 [ 53 ] In her materials, Ms. Tymchuck credits Mr. Theirman with $25,632 in s.3 support payments for 2019 and $16,199 for 2020. She does not provide numbers for 2018. Mr. Theirman’s materials indicate that his 2018 payments were the same as his 2019 payments. This should mean that he paid $12,816 in support for the six months the parties were separated in 2018. This would mean, according to Ms.

Tymchuck, she has received $54,647 and s.3 support. [ 54 ] Mr. Theirman’s numbers differ. His materials seem to indicate he was providing $2,200 per month in s.3 child support. This amount includes his payment of the car loan and cell phone bill. The $2,200 per month was paid from July 2018 through March 2020. After that, he submits that he paid $13,441. This would mean he paid a total of $59,641. [ 55 ] It is unclear from the evidence exactly how the discrepancy between the numbers arises. I find that Mr. Theirman owes $11,000 in retroactive s.3 child support.

I have found that he overpaid s.7 child support by $4,250. This would leave $6,750 in child support arrears. [ 56 ] I find that the arrears balance can be paid at the rate of $150 per month. If the monthly payment is not made, the full amount is to become immediately due and payable. [ 57 ] I decline to order any costs regarding this application. Heard on the 29 th day of June, 2021. Dated at the City of Edmonton, Alberta this 12 th day of November, 2021.

G.R. Fraser J.C.Q.B.A. Appearances: Noori Sidhu Verhaeghe Law for the Applicant Samuel Rollans Bruyer MacKay for the Respondent