Albers v Albers, 2011 ABQB 498

Court of Queen ’ s Bench of Alberta Citation: Albers v Albers, 2011 ABQB 498 Date: 20110811 Docket: 4803 114324 Registry: Edmonton Between: Terra Naomi Albers Respondent/Plaintiff - and - Kevin Lee Albers Applicant/Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] I last dealt with this matter in written Reasons dated July 11, 2011 now reported at 2011 ABQB 456 .

At that time I appointed myself case manager and directed that independent legal counsel be appointed for the 12 ½ year old daughter of the marriage. [ 2 ] Subsequent to my written decision in this matter, Mr. Albers on his own initiative took his daughter to see a lawyer, who wrote to me and provided his Statutory Declaration sworn on July 15, 2011 which confirmed the lawyer ’ s view that the daughter would prefer to live with her father at this time. The Statutory Declaration reads as follows: – Statutory Declaration

I, ROBERT A. JOLY, Barrister and Solicitor, of the City of Spruce Grove, in the Province a1 Alberta, DO SOLEMNLY DECLARE THAT: 1. At the request of the Applicant/Defendant, KEVIN LEE ALBERS, I met with his daughter, K.A., born 1999, in my Spruce Grove office on July 15, 2011 to discuss a possible change of residency for her which is the subject matter of the above mentioned litigation. 2. I can advise that I spoke with K.A. and she fully understands that her parents are divorced, and her father has remarried.

She tells me that she has been living with her mother, Terra Albers, and her sister, as well as her grandmother and grandfather near Muir Lake, Alberta, and she has been attending school at the Muir Lake Community School which is 5 minutes away by school bus. 3. She has just completed Grade 6, and is moving into Grade 7. 4. I asked her where she preferred to live, and this question caused her to break out in tears. She had difficulty expressing the reasons for her unhappiness in her mother ’ s home, but she made it very clear to me that she would prefer to live with her father. 5.

She tells me that her father resides in Parkland Village near Spruce Grove with her stepmother, Raina, in a trailer park. 6. I asked her about schooling, and she tells me that if she moves in with her father, she would have to change schools, which can be done quite easily. She would attend Woodhaven Elementary School in Spruce Grove, and would be bussed in on a daily basis. She advises that the school bus stops immediately in front of her father ’ s trailer. 7. She also tells me that she already has friends going to this new school. 8.

With respect to access, I asked her what her preferences were, if this Order is granted, and she tells me that she would like to spend three weekends out of every four with her mother, and the remaining weekend with her father. 9. I am also advised that the Court is considering a six month temporary Order for her residency, and that is fully acceptable to her. [ 3 ] Mr. Albers indicated that the Statutory Declaration was emailed to Mr. Virk on July 18, 2011 and Mr. Albers provided my office with evidence of this through a forwarded email that he sent to Mr. Virk ’ s Assistant. In that email Mr.

Albers appears to have provided Mr. Virk with the letter Mr. Joly sent to my office dated July 15, 2011 containing the Statutory Declaration, and Mr. Joly ’ s statement of account to Mr. Albers in the sum of $315 which was marked “ paid in full ” . [ 4 ] My office then provided Mr. Virk with a reasonable opportunity to respond to the above mentioned materials, and I now have Mr. Virk ’ s response as well as his client ’ s Affidavit sworn on August 2, 2011. [ 5 ] In Ms. Albers ’ August 2, 2011 filed Affidavit, she continues to oppose the application by Mr.

Albers for a change of primary residency stating that the parties were married in July 1995, divorced in September 2004, and that the children have been primarily residing with her since January 2003, amongst other things. [ 6 ] In the Affidavit at paragraphs 8 (

d) and (

e) there is a reported discussion between Mr. Joly and Mr. Virk in which it is described that Mr. Joly refused to provide his statement of account, although I note that the statement of account has been provided to the Court. I can only presume this to mean that somehow Mr. Virk did not receive the statement of account from Mr. Joly rendered to Mr. Albers that I received.

[ 7 ] Mr. Joly ’ s account does not list the amount of time that was spent by him with the child, although it does bill $300 in fees. [ 8 ] There are some other issues arising out of the Statutory Declaration which rendered it somewhat problematic. [ 9 ] Firstly, the Court was not aware that Mr. Joly would be involved in this matter through Mr. Albers. When I concluded that there would be independent legal counsel appointed for the child, that was not meant to include counsel selected by Mr. Albers. Mr. Albers ’ new wife apparently was present during Mr. Joly ’ s interview with the child.

The lawyer also did not speak with others who have an interest in this matter such as the child ’ s teachers, and Ms. Albers. The Statutory Declaration also does not make it clear that the lawyer is acting for the child only, and if this was the lawyer ’ s only involvement with the child. [ 10 ] I conclude that it is insufficient in terms of what independent legal counsel should be doing in conducting a review of this matter for the Court.

The Statutory Declaration also mistakenly references that the Court is considering a six month temporary order for the child ’ s residency, which is “ fully acceptable ” to the child. The Court of course is considering a number of options but not at this point, so this is an erroneous proposition to be put to the child for her approval by the lawyer making the Statutory Declaration. [ 11 ] The proper process after a lawyer is appointed by the Court to represent the interests of a child in a proceeding under the Family Law Act , R.S.A., 2003, c. F-4.5 ( Section 95(3) ) is being pursued by Mr. Virk as Mr.

Virk has had Ms. Albers attend at Legal Aid on August 2, 2011 with respect to the appointment of legal counsel. [ 12 ] Mr. Albers has indicated in some of his correspondence with the Court that he would like this matter of the child ’ s change of primary residency dealt with prior to the commencement of new school year registration on August 17, 2011. I can advise the parties that this will not occur as there is insufficient time for a hearing to take place with independent legal counsel ’ s report and input.

I would estimate that the next case management meeting in this matter involving legal counsel for the child would probably not take place until October 2011. [ 13 ] Mr. Albers must also govern himself accordingly in these proceedings because he has been guilty of sending snippets of evidence and submissions in email form to my office in response to filed materials and Affidavits submitted by Mr. Virk, as he sees fit. Mr. Virk has indicated to the Court that he will be continuing to pursue the matter of imputing income to Mr. Albers based on what Ms. Albers deposed is Mr. Albers ’ earnings of over $15,000 a month.

It appears that this application will be part of the next case management meeting so that Mr. Albers should be prepared to also deal with the issue of ongoing retroactive child support in the coming months, along with the issue of where the 12 ½ year old daughter will primarily reside, through filed Affidavit material only at the appropriate time(

s) before the motion(

s) are actually returnable, but not at this time. It is very important that all parties follow the proper Court procedures in these matters. Even if the parties do not understand the process it is an unacceptable excuse for them to not follow proper procedure. There are costs sanctions that the Court can and will impose on those consistently not following proper procedure. Heard on the 8 th day of July, 2011. Dated at the City of Edmonton, Alberta this 11 th day of August, 2011.

Donald Lee J.C.Q.B.A. Appearances: Nav Virk Virk Law for the Plaintiff Kevin Lee Albers Appeared on His Own Behalf