T.D.M. v. T.H., 2011 ABQB 717

Court of Queen ’ s Bench of Alberta Citation: T.D.M. v. T.H., 2011 ABQB 717 Date: 20111123 Docket: FL03 23769 Registry: Edmonton Between: T.D.M. Appellant - and - T.H. Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Appeal from the Judgment by The Honourable Judge Janet D. Franklin Dated the 19 th day of March, 2010 Docket: 0906 23570F1) Introduction

[ 1 ] This is an appeal of a Guardianship and Child Access Order (the Order) made by the Provincial Court under the Family Law Act , SA 2003, cF - 4.5 ( FLA ) which denied TDM guardianship status of his child, G. TDM seeks to set aside the Order; to be appointed G’s guardian; to reinstate the parenting order which existed prior to the Order; and for the costs of this appeal. Background [ 2 ] TDM is a stay-at-home dad and the father of seven children. He has four adult children from his first marriage, two daughters (M and

S) who live with him, and G, who was born on March 20, 2009. The mother of M and S is DM. She is enstranged from TDM, lives in Edmonton, owns property jointly with TDM and provides support to him for M and S. DM and a former husband, TMB, are involved in ongoing legal proceedings in the Yukon concerning custody and access arrangements for their son, R, in which an interim consent order was taken to exclude TDM from any contact with R. [ 3 ] TH is the mother of G. She is a dental assistant and, at the time of trial, was not working due to G’s birth.

The parties met via the internet in December 2006 and started dating in March 2007. Both always had separate residences but spent periods of time together prior to and after G’s birth. On May 15, 2009, TH obtained an Emergency Protection Order (EPO) against TDM. TDM next saw G on or about May 22, 2009, when a consent parenting order was granted which provided that TDM would have G in his care for three hours each day. This arrangement continued until June 19, 2009, when the EPO was confirmed by consent, but the parenting order expired.

Thereafter, TDM had no contact with G until August 12, 2009 when a consent order was granted providing that TDM would have G in his care for six hours every odd day from 11:30 am to 5:30 pm. [ 4 ] Although the EPO was in place, TDM, TH and the three children began to spend time together. On September 28, 2009, a further consent order was obtained which provided that the parties could have such contact as they might agree. In the Fall of 2009, the parties attended counselling in an effort to reconcile. This effort failed and their relationship ended in November, 2009.

Following this, TH applied for a parenting order and TDM applied to be appointed G’s guardian. These applications were tried together in Provincial Court on March 18 and 19, 2010. It is that trial decision that is under appeal. Legislative Change [ 5 ] Subsequent to the hearing of this appeal on April 19, 2011, and pending my decision on the appeal, the provisions of the FLA dealing with guardianship were amended pursuant to the Family Law Statutes Amendment Act , SA 2010, c16 , effective August 1, 2011. The relevant amended provisions read: Guardians of Child 20...

(2) Subject to this section, a parent of a child is a guardian of the child if the parent (

a) has acknowledged that he or she is a parent of the child, and (

b) has demonstrated an intention to assume the responsibility of a guardian in respect of the child within one year from either becoming aware of the pregnancy or becoming aware of the birth of the child, whichever is earlier.

(3) For the purposes of this section, a parent has demonstrated an intention to assume the responsibility of a guardian in respect of a child by ... (

b) being the adult interdependent partner of the other parent at the time of the birth of the child or becoming the adult interdependent partner of the other parent after the birth of the child, ... (

j) voluntarily providing or offering to provide reasonable direct or indirect financial or other support, other than pursuant to a court order, for the child, or (

k) any other circumstance that a court, on application under subsection (6), finds demonstrates the parent’s intention to assume the responsibility of a guardian in respect of the child. [ 6 ] At the request of parties, a telephone conference was convened and subsequently written submissions were filed: by TH dated August 29, 2011, and by TDM dated October 6, 2011. The submissions addressed how the amendments impact this appeal in the context of the rule of

interpretation which presumes against retroactive application of legislation. Grounds of Appeal [ 7 ] The grounds of appeal are that the trial judge erred in law: (

i) by reviewing statements sworn by the parties and other documents on the court file before the trial began; (ii) by reading from a print-out of TDM’s criminal record and questioning him on its contents, when that document was not in evidence before her; (iii) by reading a copy of a Yukon court decision and questioning TDM on its contents, when that document was not in evidence before her; (iv) in making findings of fact not supported by the evidence; (

v) in failing to consider G’s right to a relationship with her father, and in giving undue weight to the nature and history of G’s parents’ relationship; (vi) by allowing the deliberate course of conduct adopted by TH to obstruct TDM to determine the outcome for G’s relationship with her father. [ 8 ] Regarding these grounds of appeal, TH takes the position that the trial judge: (

i) applied the fundamental principles of natural justice; (ii) correctly found that the evidence does not support finding that TDM is entitled to become a guardian pursuant to the FLA ; and (iii) crafted an appropriate contact Order with due consideration of the best interest of the child. Issues [ 9 ] To determine this appeal, I must decide:

1. The applicable standard of review; 2. Whether the trial judge breached the rules of natural justice; 3. Whether the trial judge made findings of fact not supported by the evidence in relation to TDM’s entitlement to guardianshipunder the FLA; 4. Whether the trial judge made an appropriate Contact Order; 5. The implications to this appeal of amendments made to the FLA following the trial judge’s decision and prior to the issuance ofthis decision.

Issue 1: Standard of Review Parties’ Positions TDM [10] TDM submits that the standard of review on an appeal from the Family Division of the Provincial Court to the Court ofQueen’s Bench on a matter arising under the FLA is that the decision of the lower court should not be disturbed absent manifest error: D(

W) v P (G) (1984), (AB CA), 54 AR 161,1984 CarswellAlta 86 at para 62. TH [11] TH agrees with the above submission. In addition, she submits that, because of the fact-based and discretionary nature ofdecisions in child custody and other family law matters, trial judges must be given considerable deference by appellate courts when suchdecisions are reviewed.

She further submits that appeal courts should not overturn support orders unless the reasons disclose an error inprinciple, a significant misapprehension of the evidence, or unless the award is clearly wrong: Hickey v Hickey, (SCC),[1999] 2 SCR 518, 172 DLR (4th) 577 at paras 11-12. Analysis and decision [12] I agree with the parties’ submissions on the applicable standard of review and that considerable deference should be given to atrial judge’s findings in family law cases: Hickey v Hickey. Issue 2: Did the trial judge breach the rules of natural justice?

Parties’ Positions TDM [13] TDM argues that the trial judge breached the rules of natural justice when she considered matters not in evidence, and notproperly before her, including: (

a) pretrial documents on the court file; (

b) emergency protection order proceedings between the sameparties; (

c) a print-out of the appellant’s criminal record; (

d) a decision of the Yukon Territories Court. [14] He contends that, in this jurisdiction, the practice of courts is to restrict themselves to a review of the record (pleadings andparticulars) before hearing a trial but in this case the trial judge read and relied on materials that were not in evidence at the trial. He saysthat consequently the trial judge made findings that tend to discredit him and that are not supported by the evidence. Specifically, he

points to the findings that he continued to have a sexual relationship with DM throughout his relationship with TH, and that his extended family wanted nothing to do with him. [ 15 ] TDM confirms that, during the trial, the judge indicated that she had read the contents of the file, including all of the statements made in support of prior applications. However, he argues that these statements were not put in evidence at the trial. He says that the trial judge stated that she had before her and was reading from a print-out of TDM’s criminal record when the print-out was not put in evidence.

Further, he states that the trial judge indicated that she had before her and was reading from a decision made in the Yukon Court in an action between DM and her former husband but that decision was not put in evidence. [ 16 ] TDM submits that, while he admitted at trial that he has a criminal record, the record was not put in evidence.

TDM’s admission demonstrates that: he has 26 criminal convictions; the first was in 1992; the record ends in 2004 as to criminal convictions, and in 2006 as to a peace bond; he was charged in 1992 with sexual assault and common assault, and was sentenced to 18 months; he was charged with fraud (welfare and legal aid) over $1000 in 1998 and 2000, and was sentenced to 9 months; he was convicted of spousal assault in 2002; he was convicted of common assault in 2004; he was convicted of breaching a peace bond; and was convicted of assault in 2006.

TDM had an outstanding fraud charge pending against him at the time of trial. [ 17 ] TDM’s evidence at trial is that he looks at non-teen pornography from time to time in the absence of his children. His intention at the time of trial was to find work later in September of 2010. He was experiencing some health problems at that time and was able to obtain respite daycare for M and S that permits him to go for medical appointments.

M and S are in daycare for about two days a week. [ 18 ] In TDM’s submission, the questioning by the trial judge at the end of his evidence elicited negative information about him which suggests that the trial judge had already formed her opinion on the outcome of the trial.

The particulars of the alleged negative information include those regarding: the Christian-based treatment program mentioned in the Yukon decision; TDM’s criminal record; the pending charges against him which were not elicited by either counsel during his earlier testimony; the respite daycare for which he was granted a subsidy; and his participation in the Yukon proceedings. [ 19 ] TDM asks that the judgment below be set aside on the ground that the judge failed to adhere to the principle that a tribunal shall be unbiased, and be seen to be unbiased, and defer judgment until all of the evidence and the arguments for both sides have been heard.

He further submits the judge also breached the audi alteram partem rule of natural justice; which demands that each side is entitled to know what evidence the other is relying on at the trial in order to make a full response. TH [ 20 ] TH argues that natural justice requires a fair opportunity to present one’s case without prejudice or bias and with all reasonableness. She submits that the trial judge allowed the introduction of TDM’s criminal record because she was of the opinion that it was a relevant factor for the determination of TDM’s character.

TH states that her counsel cross-examined TDM on his criminal record and he had the opportunity to respond; and that TDM also had the opportunity to respond to the trial judge’s questions in respect of his criminal record. TH notes in her submission that, in L M R v J J R , [1983] AJ No 497 , Kerans, JA, writing for the majority of the Alberta Court of Appeal, stated that a trial judge: ... must weigh not only the credit but also the character of the parties. He must make a judgment about the people as human beings.

Unlike ourselves, he is open to both verbal and non-verbal communication, and this is an inestimable advantage.

She cites in support of her position the case of Woloschuk v Von Amerongen , 1999 ABQB 306 , where this principle was followed. [ 21 ] TH submits that, in keeping with the role of a trial judge, to hear witnesses, receive documentary evidence and make findings of fact, the trial judge in this matter made her findings of fact and findings of credibility based on the evidence before her; that she did nothing improper in relation to fact finding; and that she properly applied the law and did not commit a “manifest error.”

Analysis and decision [22] TDM submits that the practice of Alberta trial courts is to review only the pleadings in advance of the trial. I do not know ifthat is the practice in the Family Division of Provincial Court. However, TDM did not provide any authority which suggests that a trialcourt is precluded from having regard to anything other than the pleadings in advance of trial.

Courts are generally the masters of theirown proceedings and I cannot conclude that the trial judge’s review of materials other than the pleadings in advance of trial constituted abreach of the rules of natural justice or otherwise represented an error of law.

What the rules of natural justice require is that the trialjudge make it clear what materials have been referred to and provide an opportunity to the parties to make submissions in relation to thatinformation in connection with the presentation of their cases. [23] In this case, the trial judge made it clear to the parties during the course of the trial that she had reviewed the materials thathad been previously filed by the parties in the action. The parties were given an opportunity to address the issues raised by her and tomake submissions regarding the materials.

No objection was made by either party during the course of the trial to the trial judge’sreference to any of these materials. I have concluded that this ground of appeal must fail. Having reviewed the materials that the partieshad themselves filed in the action and of which they had knowledge in advance of trial, the trial judge raised areas of concern andallowed the parties an opportunity to address those concerns.

In doing so, she did not breach the rules of natural justice, nor did herquestions, which I consider to be on issues of relevance to the issues before her, indicate that she was biased against either party inadvance of the trial. I conclude that this ground of appeal fails. Issue 3: Did the trial judge make findings not supported by the evidence in relation to TDM’s entitlement to Guardianship underthe FLA?

Parties’ Positions TDM [24] TDM submits that a child has a right to the most effective relationship with her parents that is possible in the circumstances:Convention on the Rights of the Child, Articles 7 and 9; FLA, s. 18(2)(vii). He states that, early in G’s life, she had a relationship withhim as father which included: (

a) spending the first seven weeks of her life with him jointly with her mother, since they were effectivelyliving together during that period; (

b) spending three hours daily in his care for a period of one month; and (

c) subsequently, spending aminimum of six hours every alternate day with him for a period of seven months, as well as some additional times when he and THspend time together as her parents. [25] TDM contends that the only permissible justification for the court to deprive G of her relationship with him is if it would be inher best interest to do so.

The analysis of that issue should be, in his view, undertaken from G’s perspective in the manner in which thecourts consider mobility cases on a cost benefit basis as to whether going or staying is in the best interest of the child: Gordon v Goertz, (SCC), [1996] 2 SCR 27 at paras 52-53, 134 DLR (4th) 321. [26] TDM submits that the trial judge did not make any finding per se that appointing him as G’s guardian would not be in her bestinterests but, rather, the trial judge focused on the dysfunctional character of her parents’ relationship.

TDM submits that the trial judgeconcluded that denying him guardianship status would prevent the parties from resuming their relationship. This conclusion, TDMsuggests, is one that clothes guardianship with an effect it cannot have. [27] TDM argues that the trial judge did not consider the effect that the denial of the status of guardianship would have on G’srelationship with him. This denial would relegate him to a mere contact in G’s life, creating the risk of this driving a “wedge betweenthem”, ultimately weakening their relationship.

TDM contends that the trial judge failed to generally consider the unfortunate results forG as a child when her father drops out of her life, leaving her to be raised in a single-parent home.

He further contends that the judgefailed to consider the positive results that would likely accrue to G when there are two guardians who “both love her, and will protecther, and will contribute to her upbringing.” [28] TDM states that the trial judge mentioned the duty of a guardian to work with the other guardian to promote the child’s bestinterests but that the evidence demonstrates that TH is deliberately unreasonable when it comes to the matter of G’s relationship withhim. He argues that the evidence indicates that TH: (

a) refused him contact with G for one week in May, 2009 and for eight weeks in

June, July and August, 2009; (

b) took the position that his being a half hour late returning G to her was “very late”; (

c) phoned the police at least three times because he was “late”; (

d) without good reason, was not willing to put G in the same childcare as M and S; (

e) refused to agree that G enjoys being with M and S; (

f) will not agree to overnight visits; and (

g) destroyed a blanket given by M and S to G. TDM notes that TH acknowledged that G had never been unsafe in his care, and made no criticisms of the standard of care he has provided to G. [ 29 ] TDM submits that the qualifications for being appointed a guardian are effectively two: (

i) biological connection; and (ii) willingness to serve. He argues that it is illogical to refuse to appoint a father who has not lived with the mother based on matters of character derived from a criminal record which, he argues, would not suffice to terminate a father’s guardianship. TH [ 30 ] TH argues that the trial judge was methodical in her decision and provided her reasoning having regard to the provisions of sections 18, 20 and 21 of the FLA , with the best interests of the child at the core of her assessment and analysis.

She submits the trial judge judiciously applied the legislation and the correct test to the relevant facts before she came to a conclusion in which she declined to appoint TDM as a guardian of G. [ 31 ] She submits that it is the responsibility of the court to make the situation as secure and ideal for a child when a non-ideal one presents. Where a case like this comes before the court, TH submits it is the trial judge who is in the best position to make the most difficult of decisions.

When such decisions are made by the trial judge, an appellate court must give it a high degree of deference. [ 32 ] While TH agrees that a criminal record alone would not suffice to terminate a father’s guardianship, she notes that TDM’s criminal record is lengthy. She points out that the trial judge found that the criminal record is “very germane to the issues” before her; and that it is not in the best interest of G that TDM be appointed as her guardian. Analysis and decision [ 33 ] The trial judge’s reasons for denying TDM’s application for guardianship status were primarily two-fold.

She focussed on TDM’s criminal record and on her concern that an ongoing sexual relationship between TDM and TH were not in G’s best interests. She was clearly of the view that the unhealthy nature of G’s parents’ relationship would make it impossible for them to put G’s best interest ahead of their own. She concluded, that because TH had been G’s primary caregiver since birth, she was in the best position to make decisions for G.

She was clearly sceptical of TDM and TH’s ability to work together on an ongoing basis in making mutual decisions in G’s best interest. [ 34 ] The trial judge acknowledged that TDM had spent an increasing amount of time with G and she confirmed that she had “absolutely no issue with [his] care” of G.

She also recognized that it was in G’s best interest to have a relationship with her father and she went on to confirm her view that G’s father should have G for longer periods of time under a Contact Order. [ 35 ] In my view, it was not inappropriate for the trial judge to have regard to TDM’s criminal record or to the highly dysfunctional relationship between G’s parents.

However, I have concluded that there is merit to TDM’s position that the trial judge, in focussing so heavily on the problems in the relationship between TDM and TH, used guardianship in an attempt to regulate that relationship. [ 36 ] It is clear that TDM has been actively involved in G’s life since her birth and that his involvement increased as time went on. Although I agree that the trial judge had very valid concerns regarding TDM, many of those concerns related to his deficiencies as a partner, rather than as a parent.

While his lack of independent financial resources is troubling, the evidence show that he had thus far been able to provide food and other necessities to G while she was in his care.

[ 37 ] I have concluded that denial of guardianship in these circumstances was not warranted. However, I agree with the trial judge that TDM’s involvement in G’s life ought to be restricted given the problems in his relationship with G’s mother. However, that can be accomplished without denial of guardianship. As the trial judge pointed out, the FLA specifically provides for this type of situation by allowing the Court to restrict the powers of a guardian where it is in the best interest of a child to do so.

I do not find fault with the trial judge’s decision that it ought to be TH who makes decisions on behalf of G, certainly at present and for so long as TDM and TH continue the type of dysfunctional relationship that they have had to date. Minimization of contact between them is appropriate and requiring joint decisions would not be in G’s best interests. Issue 4: Did the trial judge make an appropriate Contact Order? Parties ’ Positions TDM [ 38 ] According to TDM, no explanation was offered by the trial judge for her reduction of G’s time with him and her step-sisters.

He argues that this parenting order does not align with the current thinking on the need for infants to frequently interact with loved ones in order to ensure bonding and their general welfare. He contends that TH does not wish to share G with TDM and her step-sisters and that wish ought to have been rejected as contrary to the best interests of G. TH [ 39 ] TH states that the trial judge was aware of the fact that it is in the best interest of the child to have two loving parents to whom she should have regular access as much as possible.

She observes that the judge explicitly stated in her reason that it is in G’s interest to “have contact with Dad, not because that brings Dad in contact with Mom, but because it is in [G’s] interest to have a relationship with her father.” However, she submits the trial judge also recognized that, because of G’s tender age, she deserves “security and stability and routine in her life.” [ 40 ] TH contends that the best interests of G would yield to the interests of the parents if G is made to move “back-and-forth, from home-to-home” and become a “temporary resident between two households, basically a nomad.” She submits that the trial judge made an appropriate contact order which will ensure a stable home with one parent for G and that the judge’s decision to reduce TDM’s parenting time is necessary so as to establish a routine for G. [ 41 ] TH submits that guardianship orders are discretionary and a trial judge’s decision is entitled to considerable deference.

She further submits that the order below is sustainable under the FLA and within the trial judge’s fair exercise of her judicial discretion in the best interests of the child. Analysis and decision [ 42 ] I can find no error in the trial judge’s decision regarding the terms of the Contact Order. The trial judge took into account the various factors that she felt were relevant. I agree that it was open to the trial judge to exercise her discretion in the manner she did. The type of contact regime implemented by her was reasonable in the circumstances and is owed considerable difference in any event.

I conclude that the Contact Order was appropriate in the circumstances of this case. Issue 5: Implications of the amendments to the FLA Parties ’ Positions

TDM [43] TDM agrees that the amendments to the FLA are not retroactive. However, he submits that the amendments to s. 20 areretrospective in that, if a person in his position were to apply for a guardianship order for a child born before the amendments, theamendments would apply and that person would be a guardian by operation of law.

He argues that the amendments should be consideredas relevant on this appeal because the amendments declare the intentions of the Legislature with respect to this particular statutoryscheme. [44] Further, TDM notes that, pursuant to Rule 12.68 of the Alberta Rules of Court, this is an appeal on the record and only theevidence before the Provincial Court can be considered unless otherwise ordered. He suggests that, depending on the outcome of thewithin appeal, the court can, inter alia, make any order that the Provincial Court could have made: Rule 12.70.

He therefore urges me toexercise my discretion to appoint him as a guardian of his daughter because that would be in the best interests of G: FLA, s. 18. TH [45] TH argues that the amendments do not apply to this appeal. There is a presumption against retroactive operation of statutesand this presumption may only be rebutted by clear language in the statute: CNG Producing Co. v Alberta (Provincial Treasurer), 2002ABCA 207 at para 27, 317 AR 171, citing, Gustavson Drilling

(1964) Ltd. v MNR, [1977] SCR 271 at 279. She submits that thechanges to the guardianship provision in the FLA do not apply retroactively.

Analysis and decision [46] I note that in Minchau v Busse, (SCC), [1940] 2 DLR 282 (SCC); reversing, (AB CA),[1938] 4 DLR 744 (Alta CA), where after the hearing of an appeal, but before arguments, the provincial Legislature passed a statutewhich would affect the rights of the parties, the Supreme Court of Canada held that where a statute is not “in express terms madeapplicable to pending proceedings and ... it does not in terms declare the law to be applied in proceedings commenced prior to the passingof it” the SCC is governed in pronouncing judgment by the law as it stood when the Court of Appeal gave its judgment: at para 83. [47] Nevertheless, the existing jurisprudence appears to support the position that the general principle against legislation beingapplied retrospectively is usually “tempered” or considered inapplicable in continuing fact situations which include any state of affairs,status, relationship or characteristic capable of persisting over time: Imperial Oil Ltd. v Alberta (Minister of Environment), 2003 ABQB388 , 2003 CarswellAlta 620 (Alta QB) at paras 48-49; Regina Police Superannuation & Benefit Plan v Wyatt Co., (SK KB), [1996] 8 WWR 74 (Sask QB) [Wyatt Co.]. [48] In Wyatt Co., at paras 67-70, Barclay J of the Saskatchewan Court of Queen’s Bench stated, inter alia, that: 67 Arguably, because the Act governs a relationship or state of affairs which is of an ongoing nature, its application to the ... question isnot retroactive at all but instead is merely of an immediate and general application.

According to Driedger on the Construction of Statutesat 510: ... Legislation is applied immediately and generally when it is applied to facts in progress, that is, facts that began in the past but are stillon-going when the legislation came into force. The immediate and general application of legislation to on-going facts is a prospectiveand not a retroactive application of law. ... 69 By way of example, Côté, in The

Interpretation of Legislation in Canada at p. 124, refers to "Facts indicating a status." He states:

(4) Facts indicating a status. In some cases, a statute may attribute consequences to a status, to the fact of being a certain type of person

or thing.

For example, a statute may convey a benefit on all married persons. ... 70 In Lorac Transport Ltd. v Atra (Le), (FCA), [1987] 1 C.F. 108 (C.A.), Justice Hugessen wrote, at p. 117, thatthe presumption against retroactivity, normally applies only where a statute attaches new consequences to an event which happened prior to its enactment; it does not applywhere the statute attaches consequences to a status or characteristic which may have existed prior to the enactment but which continues toexist afterward. (Emphasis added) [49] I conclude, given the nature of TDM’s status as the biological father of G and the on-going nature of his parental relationshipwith G, which is one “capable of persisting over time”, TDM is entitled to the benefit of an immediate operation of the amendments tothe FLA.

The immediate and general application of legislation in this manner to on-going facts has been described as “a prospective andnot a retroactive application of law”: Wyatt Co. at para 67. [50] Thus, from the perspective of the amended legislation and the facts of this case as disclosed in the record before me, Iconclude that TDM has been involved in G’s life by voluntarily providing or offering reasonable direct or indirect support for her; hasacknowledged that he is a parent, and has demonstrated an intention to assume responsibility for her, within one year from “eitherbecoming aware of the pregnancy or becoming aware of the birth of the child”: FLA, s. 20, as amended. [51] Therefore, although I have concluded that the trial judge was in error to have denied guardianship status at trial, I alsoconclude that, even if she had been correct at trial, the legislative amendment would entitle TDM to automatic guardianship status on thebasis of the case authorities referred to above.

Conclusions [52] In the result: 1. I hold that TDM is a guardian of G for two reasons:

a) because the trial judge erred in denying him guardianship status at trial; and

b) by virtue of amended s. 20 of the FLA; 2. Until otherwise ordered by a court of competent jurisdiction, TDM shall have no powers under s. 21(6)(

a) to (

m) inclusive of theFLA, all such powers being reserved solely to TH; 3. Until otherwise ordered by a court of competent jurisdiction, the Contact Order put into place by the trial judge on March 19,2010 shall remain in effect. [53] If the parties are unable to agree on costs, they may have the matter dealt with by me by contacting my assistant within 30days of the issuance of this decision.

Heard on the 19 th day of April, 2011. Written submission received August 29, 2011 and October 6, 2011. Dated at the City of Edmonton, Alberta this 23 rd day of November, 2011. D.L. Shelley J.C.Q.B.A. Appearances: Elsa G. Rice, Q.C. Scorgie Wilson Rice for the Appellant Kenneth J. Alyluia Gledhill Larocque for the Respondent