T.D. v. B.D., 2011 ABQB 201

Court of Queen ’ s Bench of Alberta Citation: T.D. v. B.D., 2011 ABQB 201 Date: 20110406 Docket: FL03 28124 Registry: Edmonton Between: T.D. Applicant - and - B.D. Respondent Restriction on Publication: By Court Order, there is a ban on publishing information that may identify the children or guardians in this matter. See the Family Law Act, s. 100. Corrected judgment: A corrigendum was issued on April 6, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice P.B. Michalyshyn _______________________________________________________

[ 1 ] The parties appeared in ordinary Chambers the morning of March 22, 2011. The Applicant seeks an order under the Family Law Act for parenting and child support. The Respondent opposes, noting proceedings in Ontario. Both parties acknowledge a threshold issue of jurisdiction must be determined. [ 2 ] For reasons which follow, it is for the Ontario Court to have the opportunity to decide the initial issue of jurisdiction. I am informed the Ontario Court is scheduled to review matters March 25, 2011.

Pending the position of the Ontario Court on jurisdiction, on March 25, 2011 or thereafter, the application before the Alberta Court is adjourned sine die . [ 3 ] In addition to the submissions of counsel, I have reviewed the Applicant's initial Affidavit filed February 17, 2011, the Respondent's Affidavit filed March 9, 2011, and the Applicant's Affidavit in Response filed March 18, 2011. I have also reviewed a transcript of February 3, 2011 proceedings before the Honourable Judge Savaryn of the Alberta Provincial Court. I was provided and have reviewed Shields v. Shields, 2001 ABCA 140 ; J.Y.G. v.

K.T., 2009 ABQB 603 ; and McGirr v. McGirr, 2010 ABQB 766 . [ 4 ] N.D. was born in 2004. For most of his young life N. has lived in Ontario, it appears with his mother, the Applicant T.D. T.D. was given "final custody" of N. by virtue of a Consent Order granted by the Honourable Justice Timms of the Ontario Superior Court Family Court Branch May 26, 2008. The same Consent Order gives the father, B.D., "final access", and sets out certain child support obligations. [ 5 ] In August, 2010 the Applicant, with N., moved to Alberta. They have lived in Alberta since.

N. is enrolled in first grade and in a variety of activities.

I am told that N. is in the midst of an assessment at the Glenrose Rehabilitation Hospital; the Applicant's March 18, 2011 Affidavit attaches a physician's letter noting N. is currently in the Royal Alexandra Hospital child and family psychiatric unit for assessment and treatment apparently for mild tics and executive dysfunction with outbursts. [ 6 ] In the same March 18, 2011 Affidavit, T.D. deposes "… it would not be in N.'s best interests to have him uprooted in the middle of the school year and send back to Ontario." That is very likely a relevant consideration for where the issues of custody/access and support should ultimately be determined, but does not obviously determine whether it is an Ontario or Alberta Court which decides what I believe to be the threshold jurisdiction issue. [ 7 ] I am unable to tell when the Ontario proceedings were originally commenced.

As compared to the Alberta proceeding, it is clear they are of relatively long-standing. Many Orders have been given. Three are worth mentioning in particular:

(1) The Order of the Honourable Justice J.E. Hughes October 25, 2010 staying enforcement of the Respondent B.D.'s child support obligations pending reconsideration when T.D. serves and files her own responding materials. I have no information whether any responding materials were ever filed;

(2) The Order of the Honourable Justice J.E. Hughes November 25, 2010 terminating effective September 1, 2010 B.D.'s child support, child care and arrears, and giving B.D. sole custody of N. on a temporary, without prejudice basis. The order of Justice Hughes was to be reviewed by Justice Hughes within eight weeks of November 25, 2010. It appears no such review occurred;

(3) While not in the form of an Order as such, the hand-written endorsements of the Honourable Justice Hatton February 7, 2011, wherein Justice Hatton concludes that it is unnecessary to "validate" Justice Hughes' November 25, 2010 Order, and that notwithstanding the eight-week review provision in the November 25, 2010 Order, the temporary custody provisions in the Order remain in full force and effect until it is varied or terminated by the Ontario Court or superceded by an order in Alberta. (I note that between the November 25, 2010 Order and the February 7, 2011 endorsement, the parties appeared February 3, 2011 before Judge Savaryn in connection with B.D.’s application to enforce the November 25, 2010 order in Alberta by way of the Extra-Provincial Enforcement of Custody Orders Act .

Judge Savaryn found that by virtue of the lapse of the eight weeks noted in Justice Hughes' November 25, 2010 Order, the Ontario Order had expired and as such there was no Order to enforce.)

[ 8 ] Only on February 17, 2011 did T.D. commence proceedings in Alberta by way of the Alberta Family Law Act claim before me. [ 9 ] I do not find that I am assisted by the cases provided to me in deciding initially whether it is for the Alberta Court or the Ontario Court to determine which Court should have jurisdiction. We are a step removed from those cases. We are at the stage of deciding which Court should determine the issue of jurisdiction.

Only once that decision is made will a Court decide, doubtless with N.'s best interests uppermost in mind, where the issues of custody/access and support should be determined. In all of the circumstances I defer to the Ontario Court in the making of the initial determination which Court should have jurisdiction. The Alberta application is accordingly adjourned. Heard on the 22 nd day of March, 2011. Dated at the City of Edmonton, Alberta this 24 th day of March, 2011. P.B. Michalyshyn J.C.Q.B.A. Appearances: D.J. Tkachuk for the Applicant K.E.

Moore for the Respondent _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice P.B. Michalyshyn _______________________________________________________

_______________________________________________________ The names of the parties have been reduced to initials to protect their privacy. Also, some of the hearing dates of this matter were missing but have now been put into the Judgment as follows: [2] For reasons which follow, it is for the Ontario Court to have the opportunity to decide the initial issue of jurisdiction. I am informed the Ontario Court is scheduled to review matters March 25, 2011.

Pending the position of the Ontario Court on jurisdiction, on March 25, 2011 or thereafter, the application before the Alberta Court is adjourned sine die. [3] ...I have also reviewed a transcript of February 3, 2011 proceedings before the Honourable Judge Savaryn... [7] ....(I note that between the November 25, 2010 Order and the February 7, 2011 endorsement, the parties appeared February 3, 2011.... [8] Only on February 17, 2011 did T.D. commence proceedings in Alberta by way of the Alberta Family Law Act claim before me.