DLC v. KRN, 2011 ABQB 413

Court of Queen ’ s Bench of Alberta Citation: DLC v. KRN, 2011 ABQB 413 Date: 20110704 Docket: 4803 149678 Registry: Edmonton Between: DLC Plaintiff - and - KRN Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] The issues currently before the Court are: (

a) Parenting time for the Defendant father with respect to the two children of the marriage; (

b) Whether there should be a police enforcement clause;

(

c) Whether there should be directions as to additional counselling or the nature of counselling that should be continued on behalf of the parties; (

d) Whether legal counsel should be appointed on behalf of the children; and (

e) Who should bear the additional costs for counselling assessments, and/or for the appointment of legal counsel for the children. [ 2 ] The father has applied for specified parenting time every second weekend, and for a police enforcement clause. The mother has cross-applied for the father to have parenting time every Monday after school until 7:30 p.m. and at other times as agreed upon between the parties. The mother seeks a Practice Note 7 Intervention, or alternatively a direction that the children continue counselling and that access be as directed by the counsellor.

The mother also desires that legal counsel be appointed for the children. Background [ 3 ] These parties were married in August 1999, and they have been separated since November 2008. The two children of the marriage are currently 12 and 9½ years of age. [ 4 ] The parties separated following an incident of domestic violence involving the children in November 2008, which resulted in the father being charged with several criminal offences. The charges were ultimately resolved by way of a Peace Bond, and by the requirement that the father attend an anger management course.

There was also a requirement that there be supervised access. The father began having supervised access through Family Connections, who ultimately refused to provide any more supervision due to the nature of the relationship between the father and the children. The father then began having supervised access visits with Safe Visitation, and latterly having visits with the children supervised by his relatives. [ 5 ] The parties also entered into counselling with Dr. Carter of Carter Haave Vanderstein and Bateman in an attempt to design a parenting plan beneficial to the parties and their children.

No parenting plan was apparently ever devised as a result of the parties’ attendance with Dr. Carter and the parties continue to have ongoing issues with respect to access, and how parenting should occur. Analysis [ 6 ] The father’s position is that the mother has taken every step available to her to ensure that the two children of the marriage spend as little time with him as possible.

The father argues that the mother has continued to use an incident that occurred approximately three years ago to create a continuing rift between him and the children. [ 7 ] The father seeks to have parenting time with the children every second weekend, which the mother opposes saying that the father should have access once a week for several hours during the day. The mother’s position is that the father’s contact with the children should be limited until the counselling has run its course and a reconciliation has been effected between the father and the children.

The mother submits that the father is trying to circumvent the required counselling, and simply begin having unsupervised overnight access visits. The mother, and the children she says, are opposed to any such overnight unsupervised access as the children express fear, discomfort, and distress both before and after visits with their father.

The mother denies attempting to deny the father access, and points out that it was her that began to allow unsupervised access for the father. [ 8 ] According to the mother, the father sees counselling as pointless, he feels that his actions that resulted in the criminal charges were appropriate, and that the children should have gotten over the matter by now. The mother believes that the father continues to act in a bullying manner towards the children without considering their needs, doing what he wants to do. Although the father has

completed his anger management course, the mother points out that the father’s anger management course was not directed at preventing domestic violence; and further that the father has not taken any parenting courses or any courses in relation to domestic violence. [ 9 ] As the mother wishes to have the children play a meaningful role in this process, she seeks a Practice Note 7 Intervention which would specify the access that the father should have and the conditions that should be imposed on that access.

She also wishes legal counsel be appointed for the children; and that the counselling continue with the father being involved at the discretion of the counsellor so that there can be a reconciliation between the father and the children, and so that the children’s concerns and fears could be addressed. Conclusion [ 10 ] There was a serious incident of domestic violence approximately 2½ years ago that led to the parties’ separation in November 2008. The nature of the access between the father and his children was initially prevented when criminal charges were laid against the father.

Latterly there have been periods of supervised access first with paid supervisor(s), and then through the use of relatives of the father. The Peace Bond expired on April 29, 2010, the father completed an anger management course, and he has had unsupervised access without major incident.

The mother does point out a number of problems however with the father’s continued interaction with the children, and she has been trying to set up a Practice Note 7 Intervention since July 2009, without success as a result of a lack of cooperation from the father. [ 11 ] The mother continues to believe that the father tries to physically and mentally dominate and control the children, and that the children remain uncomfortable in his presence.

While these are serious and legitimate concerns, the reporting of the level of discomfort and reluctance of the children to be with their father is largely unsubstantiated hearsay.

It is also generally recognized that children will often say and do what they feel their custodial parent wants them to say or do in some circumstances. [ 12 ] There is considerable merit to the mother’s submission that a professional psychologist or psychiatrist should become involved and provide guidance as to what access the father should have with the children, and the conditions of that access, as well as what programs and treatment the father requires to address his discipline, anger management and control issues, although it should be noted that there is a limited range of effective programs for such treatment or courses available for the father to complete.

There is also however the problem of the considerable cost associated with such professional intervention.

It is also fair comment to suggest that most separated parents likely have serious issues with the manner in which their children are raised by the other parent, and separated parents do not and should not be required to reach agreement with respect to the raising of their children before unsupervised generous access is allowed. [ 13 ] Specifically in this case both parties have somewhat limited means financially, and each not surprisingly want the other party to be directly responsible for incurring the significant counselling, assessment and other expenses related to appointing counsel for the children. [ 14 ] The father submits that the mother should incur the costs of a

Section 7 Intervention and the appointment of legal counsel for the children since she is demanding that these things occur. The mother submits that the father recently received a significant refund of child support payments from Maintenance Enforcement, and since it is he that has the parenting problems and difficulties, he should pay for the

Section 7 Intervention and for appointing legal counsel for the children. [ 15 ] I estimate the cost of a

Section 7 Intervention to be somewhere between $3,600 and $10,000, plus legal counsel for the children would require significant additional fees to be incurred. Not only do I not believe the parties can afford such costs, I have concluded that this is a case where such costs at this time are not mandated or required to be expended. The children have been receiving counselling and should continue this counselling through the wife’s employer benefits. The restructuring therapy begun by Dr. Carter should also continue.

None of these forms of counselling are necessarily child centred, however they will provide benefits to the children and to the parents. [ 16 ] I will however accept the mother’s objection with respect to overnight access, so the father’s request for specified parenting time every second weekend will be limited to 6 hours of access between 1:00 p.m. and 7:00 p.m. every Sunday, except when the children are at camps, or out of town as indicated in paragraphs 5 and 6 of the mother’s Affidavit sworn on June 15, 2011.

[ 17 ] When school begins the father will continue to be allowed 6 hours of access every weekend from 1:00 p.m. to 7:00 p.m., as I conclude that the mother’s proposal to allow the father access only every Monday after school for approximately 3 hours until 7:30 p.m. is insufficient.

The intent of my direction is that while I am not allowing the father to have overnight access at this time, he must at least 6 hours of access a week of non-overnight access. [ 18 ] Although I have decided not to appoint legal counsel for the children or to direct a Practice Note 7 Intervention at this time, I reserve the right to revisit those issues in the future as I am appointing myself as case management Judge. [ 19 ] I decline at this time to authorize a police enforcement clause with respect to the access given the level of uncertainty that I foresee in this matter at least in the short term, which could be further exacerbated by police involvement in enforcing the father’s rights. [ 20 ] To alleviate this uncertainty, and to better monitor the situation, as case manager counsel can return to me to bring their further applications in this matter. [ 21 ] There will be no costs awarded to either party given the mixed success in the application and cross-application.

Heard on the 28 th day of June, 2011. Dated at the City of Edmonton, Alberta this 30 th day of June, 2011. Donald Lee J.C.Q.B.A. Appearances: Christopher King for the Plaintiff Sylvia Tensfeldt for the Defendant