Heidt v Pirlot, 2023 ABCJ 82

In the Alberta Court of Justice Citation: Heidt v Pirlot, 2023 ABCJ 82 Date: 20230406 Docket: FF015000364 Registry: Camrose Between: Tiffany Heidt Applicant - and - Lawrenace Pirlot Respondent Judgment of the Honourable Justice J.G. Neustaeter [ 1 ] Tiffany Heidt and Lawrenace Pirlot began a relationship with each other sometime in the spring of 2015. Within a year of beginning their relationship, they had a daughter, Evalyn Rose Pirlot, born May 6, 2016. There were a couple of brief separations between the parties. The relationship resumed again on or about July 1, 2018.

Ms Heidt became pregnant again shortly thereafter and they had a son, Mickael Eugene Pirlot, born April 6, 2019. Seventeen months after Mickael was born, Heidt and Pirlot separated for the final time. [ 2 ] An Interim Consent Parenting Order was made on November 4, 2021. This Order granted primary day to day care of the children to Ms Heidt with specific parenting time to Mr. Pirlot. Ms Heidt filed an application seeking to reduce the parenting time for Mr. Pirlot. Mr. Pirlot filed a response seeking to become the primary day to day caregiver for the children. [ 3 ] To be more specific, Mr.

Pirlot was granted parenting time every second week from Thursday to Sunday. Time with Evalyn was to start after school on Thursday and time with Mikael was to start at 8:15 a.m. on Thursday. I was told that, in practice, parenting time for both children was starting after school on Thursday. [ 4 ] Ms Heidt’s application was filed requesting that Mr. Pirlot’s parenting time change to every second week from Friday after school to Sunday. The reason noted in the application was that Mr. Pirlot was not working on Fridays when the original Order was made but now he was.

Ms Heidt was concerned with who the children would be cared for while Mr. Pirlot was at work on Fridays. [ 5 ] During a Pre-Trial Conference for this matter that occurred on October 24, 2022, the Interim Consent Parenting Order was confirmed with the addition of specific parenting time for Halloween and Christmas 2022. [ 6 ] The trial of this matter took place in Camrose, Alberta on March 9 and 10, 2023. Oral arguments were made by the parties on

the morning of March 10, 2023 and I reserved my decision. ISSUES 1. Is it in the best interests of the children to change their primary day to day caregiver? 2. What parenting time should be granted to the other parent? [ 7 ] Before reviewing the issues I have identified, I will briefly touch on

section 34 of the Family Law Act . This

section deals with variation of a parenting order and says that a Court may vary a parenting order if there has been a change in circumstances since the making of the initial order. [ 8 ] Courts in Alberta have decided that a change in circumstances is not required where the order sought to be varied is an interim order. (For example, see Gordon v. Towell , 2010 ABQB 396 , citing P.D.B . v. M.R.W ., 2009 ABQB 532 and M.M. v.

E.S ., 2009 ABPC 65 ) [ 9 ] Given that the Order I have been asked to vary in this proceeding is an interim order, the parties are not required to show a change in circumstances. [ 10 ] As I move on to consider the issues in this matter, I must keep in mind that subsection 18(1) of the Family Law Act tells me I “shall take into consideration only the best interests of the children” in deciding a matter such as this. Subsection 18(2) outlines a number of things for me to consider when determining what is in the best interests of the children. 1.

Is it in the best interests of the children to change their primary day to day caregiver? [ 11 ] Evidence from the trial satisfies me that Ms Heidt has always been the primary day to day caregiver of the children. Even when Ms Heidt was living together with Mr. Pirlot, I am satisfied she was primarily responsible for the care of the children. [ 12 ] Evalyn is currently attending school in Camrose and is in grade one this year. Mickael has been attending daycare in Camrose, but only when in Ms Heidt’s care.

Even though she is home each day as she is unable to work due to an injury, Ms Heidt testified she likes having Mickael in daycare as he learns socialization skills as well as other skills. [ 13 ] In cross-examination, Mr. Pirlot testified he did not see the point in having the kids in daycare during his parenting time. [ 14 ] Evidence on behalf of both the Applicant and the Respondent tells me that communication between the parties since separation has been tense. More recently, communication has been improving. In his testimony, Mr.

Pirlot presented a certificate indicating he had recently completed the Parenting After Separation for Families in High Conflict E-Course. This may explain why communications have been improving. [ 15 ] Mr. Pirlot lives on an acreage in Round Hill, Alberta located 31 km from Camrose. He lives here with his girlfriend, Brooklynn Nahirniak. The property was inherited by Ms Nahirniak from her grandmother. [ 16 ] Mr. Pirlot said that if he became the primary day to day caregiver, he would leave Evalyn in her school until the end of the school year and would then move her to the school in Round Hill. [ 17 ] Mr.

Pirlot is employed by Emcon Services Ltd doing highway maintenance and is laid off for the winter. He expects to return to work sometime in April. Ms Nahirniak is currently unemployed but has applied for a job with Emcon as well. If successful, she would work with Mr. Pirlot. Once working, they would start work at 6:00 a.m. Monday to Friday. [ 18 ] I asked Mr. Pirlot what his plan for childcare was between the time he leaves for work and the children attend school and/or daycare.

He did not have a concrete plan but testified that Ms Nahirniak has numerous family in the Round Hill area and he would ask them if they could assist. [ 19 ] Is it in the best interests of the children to change their primary day to day caregiver based on the evidence I heard? [ 20 ] Having considered all of the evidence, I have concluded that the answer to this question is no. [ 21 ] In coming to this conclusion, I have particularly considered the following: - The children’s physical, psychological and emotional needs, including their need for stability, taking into consideration the children’s age and stage of development; - The history of care for the children; [ 22 ] Evalyn is 6 years old and is turning 7 in one month.

Mickael is turning 4 years old today. They have always been in the primary care of Ms Heidt and it is in their best interests to remain in her primary care. [ 23 ] I also note that in his closing argument at the conclusion of this trial, Mr. Pirlot did not argue that he should become the primary day to day caregiver of the children, despite asking for this in his filed response.

Instead, he asked for fifty percent parenting time. [ 24 ] Given the ages of the children, the history of their care, and their need for stability, it is in the best interests of the children to have Ms Heidt continue as their primary day to day caregiver. 2. What parenting time should be granted to Mr. Pirlot?

[ 25 ] Based on the evidence presented at this trial, I am satisfied that Mr. Pirlot loves his children and wants to spend as much time as possible with them. [ 26 ] One of the witnesses who testified on behalf of Ms Heidt was Eugene Pirlot. Eugene Pirlot is the father of Lawrenace Pirlot. It was clear from the cross-examination of Eugene Pirlot that he had played no role as a father to Lawrenace Pirlot when Lawrenace was a child as Lawrenace spent much of his childhood in foster care. [ 27 ] I have concluded that one of Mr. Pirlot’s goals is to be a better father for his children than his own father was for him.

Mr. Pirlot has already surpassed this goal. [ 28 ] Mr Pirlot argued that he should have at least fifty percent parenting time with his children. In concluding that Ms Heidt should be the primary day to day caregiver, I have already decided that a fifty percent split between the parties is not in the best interests of the children. [ 29 ] One of the factors I must consider is the ability and willingness of each party to communicate and co-operate on issues affecting the children. Evidence in this case is that communication has been tense between the parties although improving. [ 30 ] I heard evidence that Mr.

Pirlot has been inconsistent in the timing of picking up the children for his parenting time. This has been the case throughout the time the Interim Order has been in place. I also heard evidence that the exchanges of the children have been fraught with tension. [ 31 ] Ms Heidt and Eugene Pirlot both testified about an incident that occurred during Evalyn’s kindergarten graduation at her school. After Ms Heidt’s father obtained a photo of Evalyn from the school, Mr. Pirlot and Ms Nahirniak confronted Ms Heidt, yelling at her in front of the children and in front of other families. Mr.

Pirlot was holding Mikael at the time. Mr. Pirlot called her a bitch. Apparently, Mr. Pirlot was upset that he did not also get a photo. Evidence was that he simply could have asked the school and he could also have obtained a copy of the photo. [ 32 ] Having heard no contradictory evidence from the witnesses for Mr. Pirlot regarding this incident, I find that it did take place as described. [ 33 ] During the time the children spend with Ms Heidt, they often get to spend time with extended family, including Ms Heidt’s father and also Mr. Pirlot’s father, Eugene, and his wife.

Evidence was that the children do not see these family members when with Mr. Pirlot and they would not if Mr. Pirlot had fifty percent parenting time. [ 34 ] In fact, it was clear from Mr. Pirlot’s cross-examination of Eugene that Mr. Pirlot has unresolved issues with his father. It is Mr. Pirlot’s view that the children should not see Eugene when they are in Mr.

Pirlot’s care. [ 35 ] When I consider the nature, strength and stability of the relationship between the children and other significant persons in their lives, I find it is in the best interests of the children to maintain significant contact with extended family. This contact would be greatly reduced if Mr.

Pirlot were to have fifty percent parenting time or more. [ 36 ] Another factor I must consider in determining the best interests of the children is what plans are proposed for the care and upbringing of the children. [ 37 ] Ms Heidt has well established plans that are in place for the care of the children and I have no concerns about this. [ 38 ] Mr. Pirlot has no plan for the care of the children for when he returns to work.

He hopes that a daycare may be able to take the children early or that he and Ms Nahirniak can find someone in Ms Nahirniak’s family who can assist in child care when they both leave for work at 6:00 a.m. until the time Evalyn needs to attend school and Mikael will perhaps attend day care. This is not a plan. [ 39 ] Ever since the Pre-Trial Conference that took place on October 24, 2022, all parties knew this matter was proceeding to trial. Original trial dates were scheduled for January 12 – 13, 2023.

Due to an illness on my part, these dates had to be adjourned resulting in the trial that took place March 9 – 10, 2023. [ 40 ] Even with all this time to prepare for trial, Mr. Pirlot still came to court with no concrete plan for the care of his children. This has factored into my decision on how much parenting time will be granted to Mr. Pirlot. [ 41 ] Having considered all of the evidence presented during this trial and the material in the filed pleadings, as well as the considerations outlined in

section 18 of the Family Law Act , I have concluded that it is in the best interests of the children that Mr. Pirlot have differing parenting time with the children depending on whether he is employed or not. Conclusion on Parenting Time [ 42 ] While Mr. Pirlot is employed, Mr. Pirlot will have parenting time with the children every second week from Friday to Sunday at 4:00 p.m. Parenting time will begin on Friday after school ends or after his work day ends, whichever is later. If the Monday immediately following is a statutory holiday and Mr.

Pirlot is also not working, then parenting time will extend to Monday at 4:00 p.m. [ 43 ] While Mr. Pirlot is not employed, Mr. Pirlot will have parenting time with the children every second week from Thursday to Sunday at 4:00 p.m. Parenting time will begin on Thursday after school ends. If the Monday immediately following is a statutory holiday, then parenting time will extend to Monday at 4:00 p.m. Father’s Day [ 44 ] Mr. Pirlot will have parenting time with the children every Father’s Day from 8:00 a.m. to 8:00 p.m. This will occur even if Father’s Day falls during a time that is not part of Mr.

Pirlot’s regular parenting time.

Mother’s Day [ 45 ] Ms Heidt will have parenting time with the children every Mother’s Day from 8:00 a.m. to 8:00 p.m. This will occur even if Mother’s Day falls during a time that is not part of Ms Heidt’s regular parenting time. Summer School Break [ 46 ] Summer school break is for the months of July and August with school resuming sometimes in the last week of August. Mr. Pirlot will have parenting time for two weeks of the summer break. I will hear submissions on whether the parties wish me to direct which weeks these will be or if the parties can come to an agreement about when this will occur.

Christmas Break [ 47 ] In 2023-24, the Christmas school break will be from December 21, 2023 to January 3, 2024, a 14 day period. Since Mr. Pirlot did not have parenting time with the children on Christmas day in 2022, Mr. Pirlot will have parenting time with the children from December 21, 2023 at 10:00 a.m. to December 28, 2023 until 4:00 p.m. Ms Heidt will have parenting time with the children from December 28, 2023 to January 3, 2024. In 2024, Ms Heidt will have parenting time during the first week of Christmas school break and Mr. Pirlot will have the second week.

This will alternate each school year. [ 48 ] Mr. Pirlot shall have any other parenting time as agreed between the parties. [ 49 ] Ms Heidt has the right to call the children during Mr. Pirlot’s parenting time and Mr. Pirlot has the right to call the children during Ms Heidt’s parenting time. [ 50 ] Both Ms Heidt and Mr. Pirlot are entitled to obtain information regarding healthcare and education issues for both children and shall share all other responsibilities and decision making as guardians. [ 51 ] I want to remind Ms Heidt and Mr.

Pirlot that good communication and co-operation between them will always be in the best interests of their children. Also, that good communication and co-operation is a two-way street and requires an investment from both parents to make it work. Heard on the 9 th and 10 th day of March, 2023. Dated at the City of Camrose, Alberta this 6 th day of April, 2023. J.G. Neustaeter A Justice of the Alberta Court of Justice Appearances: Jeffrey Spady for the Applicant Lawrenace Pirlot appearing for himself