Hoff v. Hoff, 2011 ABQB 685

Court of Queen ’ s Bench of Alberta Citation: Hoff v. Hoff, 2011 ABQB 685 Date: 20111108 Docket: 4803 114090 Registry: Edmonton Between: Robert Carl James Hoff Applicant - and - Kimberley Dawn Hoff Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Hoff asks for generous telephone and email access to his 12 year old and 16 year old children, together with supervised daytime access, and various complementary orders. [ 2 ] The application is denied. [ 3 ] In the circumstances here, before Mr. Hoff resumes any contact with his children, he must provide expert evidence that such contact is in his children ’ s best interest.

1. Background [ 4 ] The parties were married in 1995; they have 2 children, a 12 year old girl and a nearly 16 year old girl who operates at a Grade 3 or 4 level. [ 5 ] The parties separated in 1999, when the older child was 3 ½ years old and the younger four months old, and the children have lived with their mother since then. In November, 2000, on an interlocutory basis, the parties were awarded interim joint custody of the children, with the children ’ s principal residence being with the mother. The parties were divorced in 2001; issues relating to parenting and support were severed from the divorce judgment.

There followed a series of applications by the parties, not every step of which is recorded in the court file. It appears, however, that Ms. Hoff brought an application for sole custody of the children. On April 28, 2005, this court adjourned Ms. Hoff ’ s application “ to a date on or before July 14, 2005 as agreed between counsel ” . The same order indicated in paragraph 2 that Ms. Hoff was to have “ interim interim sole custody ” of the children of the marriage. Paragraph 3 of the same order stated: The Plaintiff [i.e. Mr.

Hoff] shall have no access to the children until the hearing of the next Special Chambers application. The Plaintiff may apply for a review of access upon two clear days notice to Counsel for the Defendant. It appears that the parties agreed to an extension of deadline set in para. 3 of the April 28, 2005 order, presumably at least in part to accommodate Ms. Hoff ’ s intention to either cross-examine Mr. Hoff on an affidavit he had filed or to examine him in discovery in the main action. However, on July 19, 2005, Mr. Hoff failed to attend for examination, despite having been served with notice to attend..

The anticipated special chambers application was therefore never heard. Since April 28, 2005, Mr. Hoff has not asked for a review of access until his current application. Mr. Hoff has not seen or communicated with his children since January 2005. Although it is not absolutely clear from the file, it appears likely that Mr. Hoff has never paid the costs that were awarded in relation to his failure to proceed with the special chambers hearing scheduled in 2005. [ 6 ] Some 8 years ago, Ms.

Hoff commenced a new relationship which has continued since then; indeed, she has been living with her new partner for the past 7 years. Ms. Hoff advises that she has not changed the telephone number which she had when she last had communication with Mr. Hoff. [ 7 ] In support of his current application, Mr. Hoff swears that “ I wasn ’ t allowed to see my children, and they moved away. Losing my children caused me to give up on life . . . “ In relation to a previous drug issue, he now states that he has been clean since March 15, 2009.

He provides a handwritten, i.e. somewhat informal, letter from July 2009 from a psychiatrist in Edmonton which did not diagnose any medical condition, but which concluded: “ [Mr. Hoff] was a poor attender which limited assessment. ” On October 8, 2010, the Nanaimo Regional Clinic, of the British Columbia Forensic Psychiatric Services Commission stated that Mr. Hoff had been involved with the forensic psychiatric services program in Nanaimo and in Alberta for the past 5 years and that, in the past year, he had made significant strides in improving his life circumstances and addressing his mental health issues. Mr.

Hoff ’ s case manager stated that Mr. Hoff had been a cooperative client, and had attended numerous psychiatric sessions with a psychiatrist and had attended cognitive behavioral therapy and life skill development sessions on a weekly basis. Mr. Hoff had apparently completed some comprehensive psychological assessments which could be made available by Mr. Hoff direct. On October 22, 2010, Mr. Hoff was discharged from the B.C.

Forensic Psychiatric Services Commission where he had been a client, through the Nanaimo Regional Clinic, in relation to an underlying offence of being in possession of a weapon for dangerous purposes, which offence was apparently committed in Edmonton. His discharge diagnosis was: Axis I: Depressive Disorder NOS, in remission with medication; Polysubstance (Crystal Meth) Dependence, in remission; Axis II: No diagnosis; Axis III: Severe Obstructive Sleep Apnea, Hypercholesterolemia. [ 8 ] Mr. Hoff has not paid child support for a very long time.

In separate proceedings, he has requested cancellation of child support arrears and a downward variation of ongoing child support. His application for that relief will be heard in Alberta in February, 2012; in anticipation of that hearing, by January 15, 2012, Mr. Hoff must provide additional evidence regarding his health, income and employment. 2. In light of the circumstances here, relying on PN #7, the court orders the father to obtain an expert opinion about whether telephone access with their father is in the children ’ s best interests

[ 9 ] In his application, Mr. Hoff states that he has proved that he does not pose any risk to either himself or to the children. He also states that it is in the best interest of his children to revive their relationship with him. With respect, the evidence provided by Mr. Hoff on this application does not establish either proposition. [ 10 ] The evidence on which Mr. Hoff relies is evidence that was developed in relation to Mr. Hoff ’ s status as an offender, not his status as a father, nor in relation to the children ’ s best interests. Indeed, it is somewhat concerning that Mr.

Hoff ’ s affidavit speaks in terms of being denied access to his children and the children moving away when it appears that Mr. Hoff chose not to attend a cross- examination when he knew that access to his children was dependent upon that attendance, and apparently chose not to stay in contact with the children even though the mother ’ s telephone number apparently remained constant; Mr.

Hoff appears unwilling to recognize his responsibility for the situation in which he has not had contact with his children for a very long time. [ 11 ] The children ’ s mother states that she is concerned that the return of their biological father to the children ’ s family circle may be disruptive and that the children do not wish to see him.

The difficulty with that position is, of course, that the court is concerned with the children ’ s best interests, which may involve knowing that their father has not abandoned them, even if rekindling some form of relationship with their father is disruptive to the mother. [ 12 ] An additional feature here is the fact that the older of the two children is a special needs child; nothing is known to the court in relation to that child ’ s needs in relation to contact with her biological father.

Also, it must be kept in mind that the younger of these children was just a baby when her parents separated; the court does not have any information about whether she ever bonded with her biological father. [ 13 ] Given the paucity of information available to the court about the children ’ s best interests in the particular circumstances here, the court indicates that PN#7 should be applied here with a view to obtaining evidence of a recognized child development expert about the children ’ s best interests in relation to telephone access: should it be allowed, to one or both children, at a specified time or at will, should the children merely be given the father ’ s telephone number or should a more proactive stance be taken to ensure some contact between the father and his daughters, should any telephone calls be monitored, should there be a review of the success of telephone access at some definite point in the future, etc.

In other words, the court is looking for a relatively narrow opinion, relating only to telephone access. It is not looking for a bilateral custody assessment, or even an assessment of whether in person visits should be allowed, much less overnight visits. The cost of this limited expert opinion should initially be borne by the father, subject to a subsequent costs hearing to determine the final apportionment of the costs. 3. Costs [ 14 ] If the parties are not agreed on costs of this hearing, I may be spoken to within 30 days of the release of this decision. Heard on the 31 st day of October, 2011.

Dated at the City of Edmonton, Alberta this 7 th day of November, 2011.

J.B. Veit J.C.Q.B.A. Appearances: Colin Chew Law Office for Mr. Hoff Carolyn L. Seitz, Duncan & Craig LLP for Ms. Hoff