Perez v Breeuwsma, 2022 ABKB 805

Court of King’s Bench of Alberta Citation: Perez v Breeuwsma, 2022 ABKB 805 Date: 20221205 Docket: 4803 181092 Registry: Edmonton Between: Paul Sasha Perez Plaintiff - and - Denise Gwen Breeuwsma Defendant Corrected judgment: A corrigendum was issued on January 19, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Justice C.L. Arcand-Kootenay _______________________________________________________ Introduction

[ 1 ] The mother and father cannot agree on the exchange time of the children; and on specified

section 7 expenses. The father also believes the mother has disobeyed the terms of various orders that have been granted. Issues [ 2 ] The issues before me are as follows: 1) Should there be a specified exchange time for the children; 2) Should the

section 7 expense clause be varied; 3) Has the mother breached Justice Friesen’s order granted on June 11, 2021, or Justice Bercov’s order granted on August 13, 2021? Facts and Analysis [ 3 ] This is a high conflict matter. [ 4 ] Upon my review of the material provided by the mother and father for today’s special hearing, I note that the mother and father do not have a final order regarding parenting but continue to attend either family chambers or special chambers seeking interim orders. [ 5 ] Counsel suggested it may be appropriate to make an application for case management of this matter.

I agree with counsel’s suggestion.

Case management may assist the mother and father in moving towards final resolution. [ 6 ] I would suggest that a final order may be appropriate in these circumstances. [ 7 ] Paul Sasha Perez (the “father”) and Denise Gwen Breeuwsma (the “mother”) were married on May 15, 2009 and separated on September 20, 2013. [ 8 ] There are two children of the marriage: Charlotte Leida Perez, September 14, 2011 (11 years) Madeline Wilma Perez, December 16, 2009 (almost 13 years) [ 9 ] On June 11, 2013, Justice Friesen granted an Interim Order in Family Chambers with the following terms for parenting: 1…

a) The summer 2021

schedule shall be on a week-on and week-off rotation, with the exchange of the children to take place on Fridays…

b) For clarity, the Mother shall have the children on July 2, 2021. c) …

d) Unless otherwise agreed upon by the parties, the Father shall drop off the children at the Mother’s residence at the end of his parenting time.

e) Unless otherwise agreed upon by the parties, the Mother shall drop off the children at the Father’s residence at the end of her parenting time. 2. ….the regular parenting

schedule shall resume (on Friday, September 3, 2021), without prejudice to a new

schedule being ordered in the special chambers appearance. 3. For subsequent summer proposals, the Mother shall provide as much notice as possible of her summer

schedule to the Father each year, and in any event by no later than the end of April each year. [ 10 ] On August 13, 2021, Justice Bercov granted an Order in a Family Law Special Chambers. The mother and father have agreed to amend Justice Bercov’s order by adding on a

preamble that states: The father’s Guideline income is set at $40,651. The mother’s Guideline income is set at $103,955 [ 11 ] The order will be so amended. [ 12 ] The following terms are included in Justice Bercov’s order: … 4.The parties shall continue with Co-Parenting Therapy with Dr. Jason Jones, unless the parties agree on another Parenting Expert or Dr. Jones determines that it would be appropriate for the parties to attend Co-Parenting Therapy with a different Parenting Expert.

The Co- Parenting Therapy shall be to discuss, in particular, moving towards the shared 50/50 parenting schedule, assisting with the blended family, and any other issues that the parenting expert is of the opinion should be addressed.

…. 5. Summer parenting shall be in accordance with the Order granted by the Honourable Madam Justice T. Friesen on June 11, 2021, with the additional provision:

a) the Defendant (mother) shall make all reasonable efforts to coordinate her summer holiday

schedule with the blended family’s schedule. … 10. Children’s Birthdays:

a) In even years, the Defendant (mother) will have the children from 3 p.m. to 9 p.m. on the children’s birthdays and the Plaintiff (father) will have the children from 9 a.m. to 3 p.m. …

Section 7 Expenses 14. The children shall be entitled to attend one (1) art activity and one (1) sport activity for each child during the school year, COVID allowing. The parties shall agree on what those activities shall be for the children, with preference given to what the children want to do. 15. Neither party will enroll the children in an activity without the other party’s consent, such consent not to be unreasonably withheld. [ 13 ] On May 17, 2022, Justice Kiss granted a Consent Order after an early intervention case conference (“EICC”). This two-page order provides a week-to-week breakdown of the mother and father’s summer parenting

schedule for July to August 2022, with a drop off time of 8:30 a.m. [ 14 ] My decision below should eliminate the need for any further summer parenting applications which have been previously brought simply to set the weekly rotation. Contempt of Court: [ 15 ] Justice Friesen and Justice Bercov’s orders must be followed. [ 16 ] The law concerning contempt of court can be found in ARC 10.52 (3):

(3) A judge may declare a person to be in civil contempt of Court if (

a) the person, without reasonable excuse, (

i) does not comply with an order…of which the person has actual knowledge. … [ 17 ] The Annotated Rules of Court state as follows: A vital step to maintain peace and order and good government is the right and power of courts to enforce their rulings and maintain and protect the dignity and respect of the courts and their proceedings. The power to do that by contempt proceedings is inherent. Compliance (coercion) is one aim; so is punishment.

The topic is important, because in many cases where any order has been disobeyed, the real intention of the other party (and even of the court) is not to get punishment, but to use contempt as the only means of enforcing compliance with the order. Duties under a court order are owed to the court, not the opponent. (Page 10-128) [ 18 ] Punishment for Civil Contempt of Court, can be found in ARC 10.53 10.53(1) Every person declared to be in civil contempt of Court is liable to any one or more of the following penalties or sanctions in the discretion of a judge: (

a) imprisonment until the person has purged the person’s contempt; (

b) imprisonment for not more than 2 years; (

c) a fine, and in default of paying the fine, imprisonment for not more than 6 months; …. (2) the Court may also make a costs award against a person declared to be in civil contempt of court. …. [ 19 ] The father is seeking a substantial cost award against the mother for the alleged breaches, namely: in regard to the scheduling of summer parenting time in a timely manner; the summer camp the mother registered one of the children in was not during her parenting

week and the father states this encroached on his summer parenting time; and for not providing the father with his parenting time on the child, Charlotte’s, birthday. [ 20 ] I do not find the mother is in contempt of court of either Justice Friesen’s order or Justice Bercov’s order. [ 21 ] I do not have the evidence to support such a finding. This matter appears before me based on affidavit evidence and he said/she said allegations.

Thus, I am not able to make findings regarding credibility or reliability. [ 22 ] I find that the mother may have believed she had a valid concern regarding Covid on Charlotte’s birthday. [ 23 ] I also find that the child may have wanted to attend summer camp, thus the mother may have registered her in summer camp to accede to the child’s wishes. [ 24 ] I must remind the mother and the father that the legislation is clear, in the Divorce Act ,

section 7.1 states: 7.1 A person to whom parenting time or decision-making responsibility has been allocated in respect of a child of the marriage or who has contact with that child under a contact order shall exercise that time, responsibility or contact in a manner that is consistent with the best interests of the child. [ 25 ] Although I do not find that the mother has disobeyed the terms of any order, I do find that the parents may require further clarity regarding the terms of Justice Bercov’s order. [ 26 ] The lack of clarity may have resulted in the father’s allegations of breaches by the mother regarding the various terms of that order. [ 27 ] I will provide that clarity in my decision below as I find this is relevant to the contempt of court issue that has been raised by the father. [ 28 ] And my reading of the above provisions regarding contempt of court will serve as notice to both the mother and the father that when a judge grants an order, the terms of that order must be followed, or sanctions can be imposed as noted above.

Parenting: [ 29 ] I would like to begin by providing the mother and father with a definition of reasonable. [ 30 ] Black’s Law Dictionary defines reasonable as “fair, proper, moderate under the circumstances.” It has also been defined as “just, rational, appropriate.” [ 31 ] Justice Bercov’s order directs the parties to be “reasonable”. [ 32 ] In regard to the matter before me, I find that Justice Friesen’s order provided a framework for a summer parenting schedule. The order was intended to continue until further order of the court. [ 33 ] I find that Justice Bercov’s order did not change the summer parenting

schedule framework ordered by Justice Friesen. [ 34 ] I find that the mother and father may need clarity regarding the parenting time granted in Justice Bercov’s order. Or they simply need to be reasonable in how they read and interpret the actual terms granted in that order. [ 35 ] I find the father and mother have not been reasonable in determining parenting time nor have they been reasonable in communicating with each other in a positive manner. [ 36 ] The following terms should assist the parents regarding parenting time.

a) Regular parenting time: [ 37 ] On a go forward basis and for clarity, the regular parenting

schedule contained in Justice Bercov’s order term #2, will commence on the first Thursday of September, every year .

b) Summer parenting time: [ 38 ] Regarding summer parenting time, I do not know why summer schedules would have to be exchanged by the mother and father. I am going to vary Justice Bercov’s order as follows in term #5 which will now read as follows: 5. Summer parenting shall be in accordance with the Order granted by the Honourable Madame Justice T.

Friesen on June 11, 2021. [ 39 ] The rest of the paragraph will be deleted from term #5. [ 40 ] Thus, the mother and father will continue to have the alternating week on, week off rotation during the summer months. [ 41 ] For summer parenting time, the mother’s parenting time will commence on the last Friday of June, every year . [ 42 ] Based on the foregoing, the mother and father can map out their summer parenting time years in advance. [ 43 ] Do not book holidays, do not book summer camps, do not make plans for the children during the summer months unless it is

your week . Simple. Straightforward. Easy to understand. [ 44 ] There should be no confusion on a go forward basis as you will know what week you get for parenting time in the summer every year until each child turns 18 years of age.

c) Exchange times:

i) Non instructional days: [ 45 ] Regarding exchange times, the father suggests an 8:00 a.m. exchange time on non-instructional days. [ 46 ] I would ask whether the mother or father have asked the children what time they would like to return to the other parent on non-instructional days? If yes, what time have they said? [ 47 ] These are days that the children can sleep in, and perhaps as young teenagers, they may want to sleep in. Although the father has deposed the children wake up at 6 a.m. every day. [ 48 ] The children’s views and preferences in this regard should be considered in setting the drop off time.

I agree with what the mother has deposed in her Affidavit sworn on July 18, 2022, “that the children’s voice on these matters is relevant considering their ages”. [ 49 ] However, as the mother and father are here today asking me to decide on the drop off time, based on the evidence before me, I will set the drop off time at or before 8:00 a.m. on non-instructional days. But the mother and father can still consult the children about the drop off time.

If the children want to sleep in, I suggest the parents do the drop off at or after 8:00 a.m. ii) School days: [ 50 ] On regular school days, drop off will occur at or before 8:00 a.m. and pick up will occur at or after 4:30 p.m. at the mother’s residence. [ 51 ] Further, as agreed to by the parties, the mother will provide childcare for the children before and after school during the father’s regular parenting time. Pick up and drop off will be at the times noted above.

d) Other [ 52 ] The parents are encouraged to continue engaging with Dr. Jason Jones, the parenting expert, to discuss issues regarding parenting or extracurricular activities prior to bringing any further court applications. [ 53 ] I am uncertain if Dr. Jones can speak with the children as part of his involvement with the mother and father as a parenting expert, but I would suggest the children should have the ability to have their voice heard when decisions are being made regarding them considering their ages. Dr.

Jones may have some recommendations as to how that might occur. [ 54 ] As an aside, I find it interesting that the father has described an overnight event that the mother attended with the children in Leduc, as a breach of the order, wherein the mother did not advise the father of travel dates and information. [ 55 ] I take judicial notice that Leduc is on the outskirts of Edmonton.

An extremely short drive. [ 56 ] I find the father is not being reasonable by suggesting this is a travel date where information needs to be provided to him before the children can travel. [ 57 ] I again remind the mother and father of the definition of reasonable .

Section 7 expenses: [ 58 ] Regarding the one art activity and one sport activity, I have already found that the children are of an age where their views and preferences must be considered. [ 59 ] The father has deposed that the child wants to participate in Hayabusa, while the mother has deposed that the child wants to participate in soccer. [ 60 ] Does the child want to play soccer? Does she want to participate in Hayabusa? Have the mother and father asked her?

If yes, both the mother and father should respect her views and preferences and enrol her in the sport activity of her choice. [ 61 ] I am also mindful of Justice Bercov’s order wherein she states, “the parties shall agree on what those activities will be for the children, with preference given to what the children want. ” [ 62 ] I am taken aback by the father where he states that the child’s soccer encroaches on his parenting time simply because it is not the extracurricular activity that he wants her to participate in. This is your child. Soccer may be an activity that she enjoys and maybe even excels in.

You should want to spend time supporting your child in an activity of her choice. [ 63 ] Regarding

section 7 extracurricular activities to be specified, children should be encouraged to explore and try different activities, if they so choose. It is a natural part of the growing process: try something, see if you enjoy it; and if so, continue; if not, move on and try something new.

[ 64 ] I am prepared to vary Justice Bercov’s order, as requested by the father in his affidavit sworn on July 5, 2022, by adding on the following to term #14 as follows: Sports: Martial arts, track and field, swimming, team sports and parkour. Arts: Culinary arts, visual arts, performing arts, electronic arts, musical art, literature and graphic art. [ 65 ] I will also vary the order to delete the words “any further agreed upon” in term #16. [ 66 ] I find the above is in the children’s best interests.

Summary [ 67 ] Has the mother breached either Justice Friesen or Justice Bercov’s order? [ 68 ] I do not find the mother in contempt of court for the reasons noted above. [ 69 ] On a go forward basis, my variation of the summer parenting time should remove any confusion regarding the mother or father’s scheduled summer parenting time. [ 70 ] The mother and father have agreed to amend Justice Bercov’s order by adding on a

preamble that states: The father’s Guideline income is set at $40,651 The mother’s Guideline income is set at $103,955 [ 71 ] The order will be so amended. [ 72 ] Regarding the regular parenting schedule, it will commence on the first Thursday of September, every year. This term will vary term #2 of Justice Bercov’s order by adding on to it. [ 73 ] I am also going to vary Justice Bercov’s order in term #5 which will now read as follows: 5. Summer parenting shall be in accordance with the Order granted by the Honourable Madame Justice T.

Friesen on June 11, 2021. [ 74 ] The rest of the paragraph will be deleted. [ 75 ] Regarding summer parenting time, the mother’s parenting time will commence on the last Friday of June, every year. [ 76 ] I will set the drop off time at or before 8:00 a.m. on non-instructional days. [ 77 ] On regular school days, drop off will occur at or before 8:00 a.m. and pick up will occur at or after 4:30 p.m. at the mother’s residence. [ 78 ] Further, as agreed to by the parties, the mother will provide childcare for the children before and after school during the father’s regular parenting time.

Pick up and drop off will be at the times noted above. [ 79 ] The children’s views and preferences should be considered for drop off time on non-instructional days. I would suggest that if the children want to sleep in, the parents can drop off at or after 8:00 a.m. [ 80 ] I will also vary Justice Bercov’s order regarding

section 7 expenses by adding the terms noted above: [ 81 ] By adding on the following to term #14 as follows:

a) Sports: Martial arts, track and field, swimming, team sports and parkour.

b) Arts: Culinary arts, visual arts, performing arts, electronic arts, musical art, literature, and graphic art. All extracurricular activities will be in consultation and with the consent of the child, having regard to their age. [ 82 ] I will also vary the order to delete the words “any further agreed upon” in term #16. [ 83 ] I will also add on to Term #4 of Justice Bercov’s order as follows: 4(

a) The mother and father must meet with the Parenting Expert to discuss and work towards resolution of all parenting and any other issue that might arise prior to any court applications. [ 84 ] I will invoke Rule 9.4(2)(c). [ 85 ] The parties may speak to costs. Heard on the 30 th day of November, 2022.

Dated at the City of Edmonton, Alberta this 5 th day of December, 2022. C.L. Arcand-Kootenay J.C.K.B.A. Appearances: Jose I. Soto Forum Law LLP for the Plaintiff Denise Breeuwsma Self-Represented Litigant _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Justice C.L. Arcand-Kootenay _______________________________________________________ The time was changed from 4:30 p.m. to 8:00 a.m. in paragraphs 49 and 79.