McGirr v. McGirr, 2010 ABQB 766

Court of Queen ’ s Bench of Alberta Citation: McGirr v. McGirr, 2010 ABQB 766 Date: 20101213 Docket: 4803 153459 Registry: Edmonton Between: Elizabeth Anne McGirr Plaintiff/Applicant - and - William Theodor Ray McGirr Defendant/Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. McGirr asks the court to order that his children be immediately placed in the protective custody of Nova Scotia Community Services - Child Welfare until he can go to Nova Scotia, at which time he will be given sole custody and primary care of his children. He also asks for collateral relief, including transfer of some of the children’s records, the rescission of existing child support orders, and an order that Ms. Oliver, (formerly McGirr) undergo a neuro-psychological assessment to determine fitness of ability to parent. [ 2 ] Ms. Oliver opposes Mr.

McGirr’s application, on the grounds that the court that should make decisions relating to the children’s best interests is a Nova Scotia court. [ 3 ] In a cross-application, Ms. Oliver asks the court to immediately transfer the corollary relief proceedings to the Supreme

Court of Nova Scotia. She also asks the court to suspend any access by Mr. McGirr to his children pending a full assessment of the needsand best interests of the children. [4] Mr. McGirr’s application is denied.

The court cannot resolve the conflicts in the affidavits on a chambers motion; therefore,custody must be determined by a trial: Nieuwesteeg. [5] Because the parents of the children in question were married, the law which determines which of the two possible Canadianjurisdictions should decide the custody issue is the Divorce Act. [6] Under ss. 6(2) and (3) of the Divorce Act, this court concludes that the children’s most substantial connections are with NovaScotia and that the children’s best interests are served by a transfer of proceedings to Nova Scotia.

The court also observes that theproper administration of justice will not be impeded by a transfer of the proceedings to Nova Scotia. [7] Ms. Oliver’s cross-motion for an order suspending Mr. McGirr’s current extremely limited access until an assessment isconducted in Nova Scotia is denied; all further proceedings in relation to custody will be determined by a Nova Scotia court. Cases and authority cited [8] By Mr. McGirr: S.P. v. P.B.D. (ON S.C.); A.F. v. I.V. (ON S.C.); Reeves v. Reeves2001 O.J. No. 308; Tremblay v. Tremblay (AB Q.B.). [9] By Ms.

McGirr: Shields v Shields 2001 ABCA 140; Morris v Morris 2005 ABQB 540. [10] By the court: Nieuwesteeg v Barron 2009 ABCA 235, [2009] A.J. No. 677. 1. Background

a) Factual [11] The parties, who were divorced in May 2010, have two children, a girl who is 9 ½ years old and a boy who is 6 ½ . Bothparents are in the military and hold the same rank; for that reason, I will not use their rank in identifying them. [12] Immediately prior to, and after, the parties’ separation in March, 2008, there were many acrimonious proceedings betweenthem. Ms. Oliver alleged that her husband had sexually assaulted her and threatened two other individuals; as a result of those allegationsand the resultant criminal charges, a no-contact provision in Mr.

McGirr’s bail order prevented communication between the parties. [13] In August, 2008, the parties signed a separation agreement; one term of the agreement was that the children would remain inthe mother’s primary care no matter where either of the parents was posted by the military. [14] In September, 2008, Ms. Oliver made new criminal allegations against her husband. [15] In October, 2008, the wife was posted to Nova Scotia and moved there with the children. Ms. Oliver currently resides withanother member of the military and that person’s young children.

[ 16 ] In June, 2009, on an explicitly interlocutory basis, this court granted sole custody of the two children to the mother and directed that there be no contact between the father and his children except supervised telephone access on terms; this order amended the separation agreement between the parties. [ 17 ] In August, 2009, this court issued a disclosure order in the criminal proceedings which prohibited the dissemination and distribution, etc. of the materials provided in the Crown disclosure except for the purposes of conducting a defence to the charges. [ 18 ] In May, 2010, this court issued a divorce judgment between the parties and severed the collateral relief from the divorce. [ 19 ] Each of the parents has filed affidavits in which they accuse the other of interference with their privacy, harassment and abuse of military communication systems. [ 20 ] On September 27, 2010, all criminal charges were withdrawn against Mr.

McGirr. [ 21 ] Mr. McGirr has neither seen nor spoken to the children since they moved to Nova Scotia, although he states that he did make attempts to speak with them in January and August 2010. [ 22 ] In support of his application, Mr. McGirr tenders affidavits from a number of individuals who all express the view either that Mr. McGirr is a good father or that Ms. Oliver’s credibility is suspect. [ 23 ] Mr. McGirr states that if the proceedings are transferred to Nova Scotia he will not have the money or the time to pursue his application.

b) Legislative [ 24 ] The relevant provisions of the Divorce Act are the following: Section 6 (1) Where an application for an order under

section 16 is made in a divorce proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the order is sought is most substantially connected with another province, the court may, on application by a spouse or on its own motion, transfer the divorce proceeding to a court in that other province.

(2) Where an application for an order under

section 16 is made in a corollary relief proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the order is sought is most substantially connected with another province, the court may, on application by a former spouse or on its own motion, transfer the corollary relief proceeding to a court in that other province.

(3) Where an application for a variation order in respect of a custody order is made in a variation proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the variation order is sought is most substantially connected with another province, the court may, on application by a former spouse or on its own motion, transfer the variation proceeding to a court in that other province.

(4) Notwithstanding sections 3 to 5, a court in a province to which a proceeding is transferred under this

section has exclusive jurisdiction to hear and determine the proceeding. Section 16 (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. 2. Conflict on the evidence requires a trial of the parenting issue

[ 25 ] Because of the conflict in the affidavit evidence, the court is unable to determine the issue of parenting based on affidavit evidence, and orders a trial of the parenting issues. [ 26 ] Mr. McGirr, who is unrepresented, asks the court to change the custody of his children from his former wife to himself. There are two reasons why this court, why no court, can deal with his request on the basis presented. [ 27 ] The first is that, by interlocutory order in June 2009, this court gave sole custody to the mother and indicated that the interlocutory parenting regime would continue until a parenting trial.

Not only does Mr. McGirr not ask for the trial that was anticipated in the June 2009 order, he does not present any material change of circumstance since June 2009 that would allow a court even to consider a further interlocutory variation of the interlocutory order. On the contrary, his argument before the court is that, from the outset, Ms. Oliver has manipulated the legal system so as to unfairly deprive him of his parenting role; in Mr.

McGirr’s view, far from there having been a change of circumstance after June 2009, there has been a consistent plan relative to parenting which even preceded the parties’ separation. [ 28 ] As one aspect of the situation relating to material change of circumstance, Mr. McGirr does not present any evidence even suggesting that the children are in any kind of danger, physical, psychological or emotional, that would justify their apprehension by child welfare authorities on an immediate basis. [ 29 ] The second reason why this court can’t deal with Mr.

McGirr’s request for sole custody is that, because the affidavits are in contradiction to one another, the court cannot resolve the dispute between the parties without ordering a trial.

As our Court of Appeal has repeatedly held, most recently perhaps in Nieuwesteeg , when a court cannot resolve a conflict in affidavit evidence presented on a motion, it must order a trial of the issue. [ 30 ] Moreover, because the contradictions in this case involve at least to some extent the credibility of the parties, an adjournment to allow mere cross-examination on the existing affidavits filed by the parties would not resolve the contradictions. In that context, I add as well that the affidavits filed as exhibits to Mr.

McGirr’s affidavits are not subject to cross- examination and are therefore not available to resolve any conflict between the affidavits of the parties. In the circumstances here, a parenting decision cannot be made on the basis of untested evidence. [ 31 ] In the result, the real question before the court on this motion is not whether Mr. McGirr is entitled to sole custody of the children of the marriage, but whether it is an Alberta court or a Nova Scotia court that should hear the custody trial. 2.

Jurisdiction to make parenting order [ 32 ] These proceedings should be transferred to Nova Scotia: the children are most substantially connected with that province, and it is in their best interests to transfer the proceedings there. Also, a transfer to Nova Scotia would not impede the proper administration of justice. (

a) With which province are the children most substantially connected? [ 33 ] The children are most substantially connected with Nova Scotia. [ 34 ] In coming to that conclusion, I have taken the following into account: - the children are currently living there; - the children have been living there since October, 2008. In other words, the children have been attending school in Nova Scotia,

have been seeing doctors and other health care providers there, presumably have been involved in extra-curricular activities there, and hopefully have developed school and neighbourhood friends there. Their social and professional contacts are in Nova Scotia; - at this time, the children are 9 ½ and 6 ½ years old.

In other words, they are still in their early formative years, and those years have been spent in Nova Scotia; their situation is different from that of a 13 or 14 year old child who might have been further along the development spectrum at the time of the move away from Alberta, would have a clearer ongoing connection with the parent who remained in Alberta, might have had connections with extended family members in Alberta and might even have had some of their own friends in Alberta with whom they had been able to stay in touch, by electronic means, for example; - the age of the children is also notable because they are of an age where their wishes, even if the court were satisfied that it knew the children’s true wishes, would not be a weighty factor in a parenting decision; - for some period of time, the children of the marriage have been living in a blended family situation which involves other young children.

While the children of the marriage have presumably not developed a sibling relationship with those children, the children of the marriage have presumably developed some relatively close bonds with the children with whom they have been living in a family relationship; - the children’s father lives in Alberta.

He has had no contact of any kind with them for over two years; his own evidence is that he did not even explore the possibility of telephone contact with them as permitted by court order until approximately 6 months after a court permitted such contact; - the children’s paternal grandparents do not live in Alberta but in Ontario. [ 35 ] In

summary, the children are not only currently residing in Nova Scotia, but have been making their lives there for more than two years. Their most substantial connections are with that province, not with Alberta. (

b) Is the transfer in the best interests of the children? [ 36 ] It is in the best interests of the children to transfer these proceedings to Nova Scotia. [ 37 ] Under clear guidelines in Alberta, once a court has determined that a child’s most substantial connections are with another province, the court should usually transfer the proceedings to that other province; “it can only decline to order a transfer if satisfied that the transfer would be contrary to the child’s best interests”: Shields .

That conclusion is based not on the Divorce Act but on the overall law which states that the best interests of the child is “the paramount, if not the sole, criterion to be applied in any judicial disposition regarding custody”.

In this province, therefore, issues such as the expense and difficulty of trial are not addressed as separate grounds for declining to transfer the proceedings to another province; if the children’s best interests are served by transfer of proceedings, it is irrelevant whether it would be more expensive and difficult for the parties to litigate in one province rather than in another. [ 38 ] In Alberta, the test for determining whether it is in a child’s best interests to transfer custody proceedings to another province has been further developed in Shields as follows: 22 In the context of a transfer application, the best interests of the child will generally be served by ensuring that the court which will hear the custody proceeding will have the best possible evidence before it. . . . 23 However, while availability of evidence will generally be the primary concern, in certain cases other factors may be significant in

assessing the best interests of the child. For instance, in circumstances where the child wishes to attend the proceedings, or where the court or the parties may seek the participation of the child, factors such as the residence of the child and the disruption of travelling to attend the proceedings may also be significant in assessing the child's best interests. 24 In this case, the parties have not presented arguments as to the location of the best evidence. Nor was there any evidence before the chambers judge which specifically addressed this issue.

However, given the substantial connection of the children to Ontario, and given their ongoing residence in Ontario, it is reasonable to conclude that the bulk of evidence that may be presented at trial will emanate from that province. It is there that the children's teachers, health care providers, and social contacts are found. When contrasted with the children's very limited connection with Alberta, and the resultant limited scope of evidence that will emanate from this province, it seems clear that Ontario would be the best forum for this proceeding.

This conclusion is strengthened by the children's presence in Ontario. Although it may be that neither party would choose to call the children as witnesses, the court should not discount the possibility that one or both of the children may wish to attend, or that the court may wish to hear from them. Transferring the proceedings will allow this to occur with minimal disruption to the children. [ 39 ] Mr. McGirr, who is unrepresented, has relied on some court decisions in support of his overall position. However, those decisions do not deal with the issue of conflicts between jurisdictions, or the proper

interpretation of s. 6 of the Divorce Act . The cases of S.P. , and A.F. , for example, deal with high conflict situations in which criminal allegations existed between the parents; however, those situations occurred within one province so the courts did not have to decide in which province the trial should be held. It is also important to note that those decisions are fact-driven; that is, the ultimate decision of the court was based on the facts as they found them.

The specific facts in this case will, naturally, be very different from the facts in those two cases; therefore, those two decisions will not necessarily be helpful to any court which has to determine what is in the best interests of these children. Also, it is important to note that in high conflict situations, the most important evidence will not be about the parents and any wrongdoing they may have committed in relation to one another, but about the children, and what is in their best interests.

The decisions in Reeves and Tremblay deal with court responses where a parent refuses to obey court orders; that is not the situation here. In other words, even though the decisions cited by Mr. McGirr may be of some assistance to the court that will eventually decide this parenting dispute, the first or threshold decision that must be made is which court will hear the parenting dispute; the decisions relied on by Mr. McGirr do not address that issue. [ 40 ] In

summary in relation to this factor, the best interests of these children is served by having a custody trial in Nova Scotia since a Nova Scotia court will have ready access to most of the best possible evidence concerning the children’s situation; the bulk of the evidence concerning what is in the best interests of these children today will emanate from Nova Scotia. Mr. McGirr characterizes the current parenting situation as one of “blatant parental alienation”; in order to determine if there is any merit to this assertion, the children will have to be assessed by an expert.

In those circumstances, it is clearly in the children’s best interests to remain where they have been for the last two years while any expert assessment is undertaken. Moreover, if the children, particularly the older child, were to participate in the trial, it would be in their best interests to have the trial as close as possible to the place where they live. (

c) Would a transfer impede the proper administration of justice? [ 41 ] In Alberta, this factor has never been included in the assessment of transfer of custody jurisdiction although it is a factor which is mentioned by courts in some other provinces.

Nevertheless, because ss. 6(2) and (3) of the Divorce Act do not require a transfer, but merely allow a court to order a transfer, thus leaving room for consideration of a child’s best interests in addition to an assessment of the child’s most substantial connections, a judge’s discretion under those sub-sections might be based on other judicial considerations including perhaps the proper administration of justice. [ 42 ] There is no issue here of the children having been improperly removed from Alberta, i.e. in defiance of a court order.

In any event, based on international standards, even if the children had been improperly removed from Alberta, because the children have been outside Alberta for more than 2 years, the best interests of the children would be served by having a parenting trial where the children are currently located. [ 43 ] Mr. McGirr states that he does not have the money or the time to run a parenting trial in Nova Scotia. Even accepting that assessment as accurate, that does not constitute a reason for having a trial in Alberta.

An Alberta trial would require an enormous expenditure and dislocation in order to obtain evidence in this province concerning the children’s current situation in Nova Scotia; that expenditure and dislocation would far exceed any difficulty suffered by Mr. McGirr. In addition, it must be noted that each of the parents would bear a financial burden by having to litigate in another province; the focus of the court is not, however, on the parents, but on the children and what is in their best interests. 3. Parenting assessment

[ 44 ] Ms. Oliver’s application to suspend Mr. McGirr’s extremely limited access to his children until an assessment has been done in Nova Scotia is denied. [ 45 ] At the moment, Mr. McGirr’s only permitted contact with his children is supervised telephone contact. No such contact has in fact occurred. Ms. Oliver is not, therefore, in a position to advance any factual argument against that level of contact continuing to be made available to the father until a trial of the custody issue.

In other words, she has not proved a material change of circumstance since the court order of June, 2009 granting such contact. [ 46 ] Moreover, Ms. Oliver has established that a Nova Scotia court is the court that should exercise jurisdiction on parenting issues with respect to these children.

Therefore, it is a Nova Scotia court that will now have the jurisdiction to determine if any interlocutory orders are required prior to trial in addition to hearing the trial itself. [ 47 ] This court orders the immediate transfer of the file to Nova Scotia so that a Nova Scotia court can deal with all further parenting issues. 4. Costs [ 48 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 1 st day of December, 2010. Dated at the City of Edmonton, Alberta this 10 th day of December, 2010. J.B. Veit J.C.Q.B.A. Appearances: Mr.

McGirr, on his own behalf Marie L. Gordon, Q.C., Gordon Zwaenepoel for Ms. McGirr