Albers v Albers, 2011 ABQB 456

Court of Queen ’ s Bench of Alberta Citation: Albers v Albers, 2011 ABQB 456 Date: 20110711 Docket: 4803 114324 Registry: Edmonton Between: Terra Naomi Albers Respondent/Plaintiff - and - Kevin Lee Albers Applicant/Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is an application by the father to have one of the two children of the marriage who is 12 years of age reside with him.

The daughter in question has provided the father with numerous of her diary entries and text messages requesting that she be allowed to reside with him because of disagreements she has with her mother, and because she is residing in squalid living conditions and is embarrassed to bring her friends home. [ 2 ] These parties were married in July 1995 and divorced in 2004. The father has been paying $1,062 a month in child support for the two children in the Divorce Judgment granted on September 3, 2004.

In the Divorce Judgment, the parties have joint custody of the two children of the marriage, with the primary residence of the two children to be with the mother. Reasonable and generous access was provided to the father.

[ 3 ] This application is opposed by the mother who submits that there is no independent evidence to support the father’s position, and that there has not been any material change to warrant a change in primary residence.

The mother also submits that the father is only making this application for a change in the child’s primary residence because of financial considerations in that she applied for his financial disclosure in March/April 2011, and that she fears that he is using this opportunity to effectively reduce his child support obligations. [ 4 ] The father denies that he is applying for a change in the child’s primary residence because of financial motives.

He submits that he has fully complied with financial disclosure, and that he has nothing to worry about in terms of his child support obligations until November 2011 when the next review takes place. He is happy to continue to pay on the basis of both children residing with the mother until November 2011, even though one of the children would be living with him. [ 5 ] The mother also complains that since these parties were divorced in September 2004, the father has exercised his right to see them at his own convenience, with her having to accommodate his various requests.

She submits that the father has not complied with her request for financial disclosure in March 2010, and that the matter is still outstanding, and that the outstanding child support issues should be consolidated with this application and be heard at a later date. At a minimum the mother’s counsel argues the Court should not proceed to change the primary residence of the child until there has been an independent assessment done, or independent counsel appointed for the child. [ 6 ] The father refuses to spend and pay any more money in this matter.

Apparently he had previously gone bankrupt as a result of his matrimonial problems, and submits that it is not necessary to do further assessments when the child has spoken out so clearly, and the child’s situation is dire. [ 7 ] The child’s wishes however are only one factor that the Court must take into account, the primary consideration being the child’s best interests. In this case the child appears to be speaking consistently and persistently about her desire to go and live with the father.

The child however has only turned 12 in March of this year, and she has an older sister not the subject of this application who she has always lived together with who is currently 14½. [ 8 ] The father claims that the mother threatened to frustrate the youngest daughter’s request for a change in primary residence unless the father also allowed the oldest daughter to live primarily with him as well.

The mother is not able to formally address this recent allegation which was made in Court on the date that this matter was being argued, and the father in any event does not want the oldest daughter to stay with him because he believes that she would not abide by the rules of his household. [ 9 ] The Court did however offer the mother the opportunity to respond to this allegation at the time of the hearing of this application, but on the advice of counsel she declined to do so. [ 10 ] The mother also complains that the father has not been involved in the life of either child since the divorce.

She alleges that he has not attended any health/medical related appointments for the children since the separation, and has not attended a single parent/teacher conference for either child since the divorce. The father responds that he has simply not been involved in these aspects of decision making by the mother.

Conclusion [ 11 ] I conclude that while the father has a responsibility as a person with joint custody, the relationship between these parties appears to have been acrimonious involving many Court applications, so that it is to a certain extent understandable why he has not been part of the children’s lives. It does not however appear that the children have been adversely affected by this, nor does it appear that there is anything unsuitable about the father as a parent.

[ 12 ] The mother has pointed out to the Court that the father has demonstrated a pattern of instability having moved three times in the last year; and having been involved in two significant relationships in 18 months. I am satisfied however by the father’s explanation that neither the moves nor the prior significant relationship compromise in any way his ability as a father and as a parent.

The father appears to be in a stable relationship with a long term partner/fiancé, and appears to be able to provide the discipline and proper home setting for the child. [ 13 ] In that regard there is an issue as to the current living arrangements of the child where the father and the child allege is living in a cramped two room cabin/cottage with her grandparents.

The Court specifically provided the mother with the opportunity to provide rebuttal Affidavit evidence with respect to this point and other allegations raised by the father, but on the advice of her legal counsel she declined to provide further evidence.

However there is also nothing before the Court that shows any negative implications of the daughter’s currently living conditions. [ 14 ] As for the fact that the girls have grown up together, and that the youngest daughter has attended the same school for the past five years with the same circle of friends, it must be borne in mind that it is the daughter herself who seeks to have primary residence with the father. [ 15 ] As for the complaint that the father has cancelled many access visits and has not made them up, this also appears to be part of the acrimonious nature of the relationship between two parties who do not get along. [ 16 ] Counsel for the mother submits that the father has provided no evidence to suggest a material change of circumstance, but I conclude that the obvious expressed desire of the 12 year old daughter to reside with the father is sufficient to constitute a material change of circumstance.

In any event establishing a material change in circumstance is not a particularly high threshold, and this matter needs to be dealt with. [ 17 ] I also do not accept that the present application by the father is self-serving and only results as a direct consequence of the mother’s request to update child support. The father is sincere in trying to respond to the daughter’s cries for a change in primary residence. [ 18 ] The question as to what is in the best interests of the child is a much more difficult problem to determine given that this child only turned 12 in late March.

This is still a susceptible age for the child, and not one on which a child’s wishes should predominate over all other factors. The child’s wishes however at this age should definitely be considered, but it is not simply a matter of the child writing and texting, and entering diary pages about how much she would like to live with the father. [ 19 ] There still must be some independent review of the situation.

The Court is reluctant to involve such a young child directly in this Court process, nor do I believe that there has to be a full assessment done in this situation. [ 20 ] I do conclude however that I can simply not authorize a change in the child’s primary residence without at least requiring that counsel be appointed for the child. I must receive a report from independent legal counsel. I am prepared to work with the parties with respect to the terms of reference and the appointment of independent legal counsel so that this matter can be expedited and resolved as soon as possible.

Although the father rejects vehemently to spending any further money on this process, it is in my respectful opinion the only option I have before I can effectively change custody of the child. As I understand the process, it is not a costly one. The daughter with the help of the parents and counsel would apply to Legal Aid for the appointment of legal counsel for the child as soon as possible. Once the report from legal counsel was ready, I would review it and determine the next step. I will even appoint myself case manager in this matter until it is concluded to effectively marshal the father’s progress.

Heard on the 8 th day of July, 2011. Dated at the City of Edmonton, Alberta this 11 th day of July, 2011. Donald Lee J.C.Q.B.A. Appearances: Nav Virk Virk Law for the Plaintiff Kevin Lee Albers Appeared on His Own Behalf