O.V.E. v. I.P.E., 2011 ABQB 758

Court of Queen ’ s Bench of Alberta Citation: O.V.E. v. I.P.E., 2011 ABQB 758 Date: 20111202 Docket: FL01 12894 Registry: Calgary Between: O. V. E. Appellant - and - I. P. E. Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W. A. Tilleman _______________________________________________________ Appeal from the Order by The Honourable Judge J. R. Shaw Dated the 12 th day of August, 2011 (Docket Number FL01-12894) Introduction

[ 1 ] This case involves a breakdown of a marriage and the subsequent application by one of the parents for full time parenting of the children. The breakdown involves the parents’ relationship with each other and four children who are no longer in Canada. The case now includes rulings by judges in different countries. [ 2 ] To summarize, the children are now in Nigeria with the Appellant father’s parents.

Related to that, the father has faced a Warrant for Committal for disobeying an Order to return the children that was granted in favour of his wife (the Respondent mother), ex parte ; the mother has made complaints about the father to police authorities in Canada and Nigeria; and to further complicate matters the Provincial Court Judge who ordered the Warrant of Committal did so sua sponte . Furthermore, there are allegations that the mother is significantly involved in pornography and related issues of marital infidelity.

While she denies the extent of the father’s allegations (though admitting online chats), she states that it is her own business, and further, that she believes the father has been unfaithful to her, too. [ 3 ] As sad as the parents’ and children’s circumstances are, the law regarding the decision on appeal seems clear to me. For the reasons set out below, the Provincial Court decision is set aside.

Facts [ 4 ] Prior to the hearing I asked both Counsel to give me an Agreed Statement of Facts, which they did, and the following paras. 5 through 14 reflect these Agreed Facts. [ 5 ] The parties began experiencing marital difficulties in Calgary, with both parties alleging infidelity. In an attempt to salvage their marriage, the family travelled to Nigeria on May 16, 2011. There, it was hoped that the steadying influence of the father’s family (the mother’s parents are deceased) would assist the parties in reconciling.

Also, according to Nigerian custom, it is necessary for the family to undergo a ‘traditional cleanse’ so that the curse can be removed from the four children. [ 6 ] The evidence is in conflict as to what took place in Nigeria that resulted in the children remaining there with the paternal grandparents.

The mother says that while in Nigeria for about five days, the father burned the mother’s clothes, and took her travelling documents, money, degree certificate and Alberta level I child care certificate, computer certificate and children’s passport. [ 7 ] The mother at some point then left the in-laws’ residence, as she was told she was no longer welcome there. She retained counsel in Nigeria, who lodged a complaint with the Nigerian authorities. [ 8 ] The father, in his Affidavit sworn June 29, 2011 denies that this took place.

Rather, he states that the mother attended at the home with the Nigerian police and sought to have the father arrested on allegations of destruction to her property. The father states that he was not home at the time that the police attended at the property, and, upon learning that he was to be arrested, fled Nigeria on June 3, 2011, returning to Calgary on June 4, 2011. He states in his Affidavit sworn June 29, 2011 that he fled because he feared the police would torture or even kill him while in their custody.

The father believes there is an outstanding warrant for his arrest in Nigeria. [ 9 ] The father further states in his Affidavit sworn October 17, 2011 that the mother had temporarily left her in-laws’ residence, but it was understood that she would be returning with her older brother, U. E., and possibly other family members to participate in the family meeting. [ 10 ] The children remain in the care of the paternal grandparents. The paternal grandfather, Chief J. E., has provided an Affidavit sworn August 11, 2011 in which he states that the children are well looked after in his home.

The two older children are attending school and the three-year-old twins are being cared for by him and his wife. He also corroborates the account of his son when he states that the mother was due to attend a settlement meeting and receive “cleansing prayers” when she returned to the home with the Nigerian police seeking the father’s arrest. [ 11 ] Upon the mother’s return to Calgary on June 10, 2011, she attended at the Provincial Court on June 15, 2011 and obtained an

ex parte Interim Parenting Order from Judge Wood, which stated: • The children shall reside with the mother. • The children and the children’s residence shall remain in Calgary, Alberta, at all times, until further Court Order. • The father shall arrange to have the children returned to the City of Calgary, Alberta prior to the next Court date, and failing this, he is required to appear on the next scheduled Court date to show cause as to why they have not been returned. • Police enforcement clause (short form) [ 12 ] The Warrant of Committal granted by His Honour Judge J.R. Shaw was not granted on the application of either party.

Summary of Court Proceedings [ 13 ] With concurrence of Counsel, the following table summarizes the court applications to date: Date Court Order Granted June 15, 2011 Provincial Court of Alberta Ex Parte Interim Parenting Order July 6, 2011 Provincial Court of Alberta Interim Parenting Order August 12, 2011 Provincial Court of Alberta Enforcement Order under s. 40(2), Family Law Act August 26, 2011 Provincial Court of Alberta No Order made (review for compliance); adjourned to October 20, 2011 September 26, 2011 Court of Queen’s Bench of Alberta Order staying the Warrant for Committal of the Provincial Court.

October 20, 2011 Provincial Court of Alberta No Order made (Court considered itself functus pending appeal) [ 14 ] There is also an Order of the Magistrates’ Courts, Delta State of Nigeria, granting custody of the four children to the paternal grandfather , Chief J. E.

Standard of Review [15] Counsel for the mother submits that the standard of review applicable to this appeal is that of “palpable and overriding error”,since the Order is premised on a finding of fact with respect to the father’s ability to return the children to Canada. [16] As a preliminary matter it is necessary to look to the authority under which the appeal is commenced. The range or nature ofthe issues that may be the subject of an appeal may be circumscribed by the relevant statute. The nature of the issue, in turn, determinesthe standard of review.

For example, a statute may provide for an appeal on a question of law or jurisdiction only. The standard of reviewfor such questions is correctness. [17] This appeal comes before me pursuant to

section 89 of the Family Law Act, R.S.A. 2000, c. F-4.5, which provides that “[a]party to a proceeding under this Act may appeal a decision of the court in accordance with the regulations.” In turn, the Provincial CourtProcedures (Family Law) Regulation, A.R. 149/2005, s. 9(1), provides that “a party may appeal to the Court of Queen’s Bench anydecision of the Court.” As this right of appeal does not limit the nature of the question, it provides little guidance with respect to thestandard of review. Likewise

Part 12 of the Rules of Court, while providing procedural guidance, is silent on this issue. [18] The Alberta Court of Appeal summarized the standard of review in family law cases in its recent decision in MacKinnon v.Harrison, 2011 ABCA 283: [10] Family matters, including custody and access issues, are discretionary and warrant a considerable degree of deference. An appellatecourt may interfere if the case management judge has made a material error, a serious misapprehension of the evidence, or an error inlaw. (See: LN v. SM, 2007 ABCA 258, 412 A.R. 232; LWE v.

GLE, 2004 ABCA 179, 354 A.R. 40.) [19] In E. (L.W.) v. E. (G.L.), 2004 ABCA 179, 354 A.R. 40 at para. 12, the Alberta Court of Appeal cited the Supreme Courtdecisions of Hickey v. Hickey, (SCC), [1999] 2 S.C.R. 518 and Van de Perre v. Edwards, 2001 SCC 60 ,[2001] 2 S.C.R. 1014. The Court in Hickey considered the standard of review applicable to appeals of support orders granted under theDivorce Act.

At para. 11 the Court described the standard of review in terms that sound quite similar to the familiar appellate standard ofreview of a trial judge: [11] Our Court has often emphasized the rule 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. These principles were stated by MordenJ.A. of the Ontario Court of Appeal in Harrington v. Harrington (1981), (ON CA), 33 O.R. (2d) 150 (Ont. C.A.), atp. 154, and approved by the majority of this Court in Pelech v.

Pelech, (SCC), [1987] 1 S.C.R. 801 (S.C.C.), per WilsonJ.; in Moge v. Moge, (SCC), [1992] 3 S.C.R. 813 (S.C.C.), per L’Heureux-Dubé J.; and in Willick v. Willick, (SCC), [1994] 3 S.C.R. 670 (S.C.C.), at p. 691, per Sopinka J., and at pp. 743-44, per L’Heureux-Dubé J. [12] There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard ofappellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard theparties directly.

It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court willhave a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizesthe importance of the appreciation of the facts by the trial judge.

Though an appeal court must intervene when there is a material error, aserious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would havemade a different decision or balanced the factors differently. [20] From this I conclude (and the Alberta Court of Appeal confirms, below) that the standard of review for errors of law/principleis the less deferential correctness standard, while the standard of review for other kinds of questions is considerably more deferential:“significant misapprehension of the evidence”, “clearly wrong”, “material error”. [21] In Van de Perre, the Supreme Court commented on the standard of review in the context of matters of custody and access(per Bastarache, J. at para. 13):

[13] ... Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error inthe appreciation of the facts. Custody and access decisions are inherently exercises in discretion. ... [22] In T. (M.) v. Alberta (Director of Child Welfare), 2005 ABCA 125, 363 A.R. 306, the Alberta Court of Appeal has expresslynoted that for errors in law in family law cases, the standard is mere correctness: [24] The scope for appellate review of a permanent guardianship order is the same as for an order for custody.

Only where the judge hasacted on a wrong principle or disregarded material evidence, or where the decision is otherwise clearly wrong, will the appellate courtinterfere: M. (R.E.D.) v. Alberta (Director of Child Welfare) (1986), (AB KB), 74 A.R. 23 (Alta. Q.B.); O. (T.L.) v.Alberta (Director of Child Welfare) (1995), (AB KB), 175 A.R. 194 (Alta. Q.B.); P. (T.) v. Alberta (Director ofChild Welfare) (1998), 1998 ABQB 892 , 231 A.R. 115 (Alta. Q.B.).

That standard of review, applicable at the Court ofQueen’s Bench, was stated correctly by the chambers justice .... [25] The errors alleged by the appellant are all errors of law. Thus, the standard of review to be applied by this court to the decision ofthe learned chambers justice is correctness: S. (T.) v. Alberta (Director of Child Welfare) (2002), 299 A.R. 290, 2002 ABCA 46 (Alta.C.A.). [emphasis added] [23] T. (M.) was recently cited for the standard of review by Sulatycky J. of this Court in his review of the Provincial Court’sdecision in Alberta (Director, Child, Youth & Family Enhancement Act) v.

D. (T.A.), 2011 ABQB 134. Analysis [24] In deciding whether or not the Provincial Court Order should stand, I have to take into account the following key facts. First,the four children are not only out of the jurisdiction of Canada, they were taken out by consent of both parents. Second, for what it isworth, I note that Nigeria is not a country to which the Hague Convention applies. Third, it is significant that Provincial Court Judge Shaw raised his concerns on these points as follows:[1] THE COURT: Okay. Judge Wood issues an Order.

Judge Wood issued an Order commanding the father to arrange to have the childrenreturned to Calgary and then a date – he gave a date for him to appear and – and show why he hasn’t. Nigeria is not a signatory countryto the Hague Convention. So, this Court has no jurisdiction to compel the return of the children. The children were left there by both parents, then they come here and dispute custody of the children that they have both left in Nigeria. Gentlemen, I am of the mind that this Court doesn’t have jurisdiction to deal with this matter. So, that’s the first point.... THE COURT: All right.

But there’s been no divorce proceedings taken in Court of Queen’s Bench? [No.] THE COURT: All right. And everyone acknowledges that since Nigeria is not a signatory to the Hague Convention, any Order forcustody is – is a hollow Order. Nigeria will not respond. They don’t have to. They haven’t signed the Hague Convention.... THE COURT: So, how do we make that happen? I can’t Order the authorities in Nigeria to make it happen. So, even if hypothetically Igave the mother custody and she tried to have it carried out under the Hague Convention or any other convention, Nigeria is not asignatory.

They’re close to being a failed state as it is if one believes and follows the media reports. So, how do we bring the – how dothese parents work together to bring the kids back here? It’s probably also agreed that this couple can’t live together. So, the obvioussolution seems to be somewhere in the north tower in this building, the Court of Queen’s Bench, a divorce hearing.

.... THE COURT: And then you can discuss Court of Queen’s Bench as well. I’ve clearly indicated they have parens patriae . They can’t rewrite the Hague Convention, but they can compel a parent to do more than we can. So, again, I’m just telegraphing. They – they have more bite than this Court does. [ 25 ] I referenced the above because I believe Judge Shaw was correct in his assessment of the propriety of an Order of this kind requiring, inter alia , the Appellant to return the children to Canada. [ 26 ] I am more concerned about the sua sponte Order for Committal made by Judge Shaw.

Under the Family Law Act , enforcement Orders can be granted as follows: 40(1) Subject to subsection (5), the court, on application by a person with a right under a time with a child clause, if it is satisfied that there has been a denial of time within 12 months of the application being brought, may make any enforcement Order that is appropriate in the circumstances.

(2) An enforcement Order under subsection (1) may contain any one or more of the following provisions: ... (

e) a provision providing for the respondent to be imprisoned, continuously or intermittently, to a maximum of 90 days for a denial of time until time with the child is given; [emphasis added] [ 27 ] Judge Shaw made the Order but did not do so on the application of either party. [ 28 ] I am also concerned that Judge Wood gave his ex parte Order notwithstanding evidence that both parents were in Calgary at the time of the Order. [Transcript June 15, 2011 p.2] An Order of this type (changing custody) required the input of both parents.

We are reminded by the Court of Appeal that “the granting of an Order on an ex parte basis is usually a recipe itself for mischief and any such Order must ensure that the other side has a reasonable opportunity to respond before the status quo is permanently altered or the parties are seriously prejudiced, as happened here. In matters of child custody, the harm can be extreme and the need for caution all the more significant.”: Alexander v. Cherry , 2007 ABCA 128 , 412 A.R. 45 at para. 10 . [ 29 ] I now consider the appellant’s grounds of appeal in turn.

The appellant submits that Judges Wood and Shaw erred in essentially three respects, all of which raise, in my view, questions of law or jurisdiction. The first is the question of whether the ex parte Interim Parenting Order was made without jurisdiction. The second is whether the Order ought to have been made ex parte .

The third is whether the Order for a Warrant for Committal ought to have been made when there was no application for it under the Act . [ 30 ] As discussed above, on questions of law (and, by analogy, jurisdiction) in appeals of family law decisions, the standard of review is correctness, just as it is with appeals in other areas of the law.

If the Provincial Court Judge relied upon an incorrect legal principle, little deference is owed and I must substitute my own view of the law that applies. [ 31 ] On the matter of the Provincial Court’s jurisdiction to Order the return of the children from Nigeria, I note that during the July 6 hearing Judge Shaw indicated that he had concerns about the Provincial Court’s jurisdiction at least ten times. [2] I have quoted some of these above.

Though at one point he suggests that he has jurisdiction over the father, [3] he makes a point of saying that he is not ruling on the matter, and makes it clear in subsequent statements that it remains an open question. Judge Shaw never resolves the matter of jurisdiction – and indeed makes a point of not doing so – before continuing Judge Wood’s Order. Furthermore, the matter is hardly addressed at all in the August 12 hearing at which Judge Shaw orders the father jailed if he does not comply with the earlier Order.

[ 32 ] As I have indicated above, I am of the view that Judge Shaw properly had concerns about his jurisdiction. [ 33 ] With respect to the propriety of making and continuing the Interim Parenting Order on an ex parte basis, as I have said above, courts have to exercise caution when granting ex parte Orders. In this case, the effect of that Order landed dad in jail before there was a merits hearing. While the father was represented by counsel at the hearings subsequent to June 15, he was unable to appear in person to provide input due to his unavoidable off-shore work.

In any event, his appearance through counsel does not change that the original Interim Parenting Order was granted ex parte . Even Judge Shaw had significant concerns with this Order and indicated that he would not have granted it. [4] Had Judge Wood not granted the Order, there would have been nothing for Judge Shaw to continue. [ 34 ] Having decided to continue Judge Wood’s Order, however, Judge Shaw was single-minded in his pursuit of the return of the children to the point of disregarding any concern about the merits of the Interim Parenting Order.

Counsel for the father suggested at one point that perhaps residing for a time with the grandparents, where both parents had deliberately left the children, might be in the best interests of the children while issues surrounding parenting were worked out. [5] However, Judge Shaw was focussed strictly on getting the children back to Calgary, regardless of whether either parent was capable of providing a proper home.

These, he contended, were issues to be argued later, once the children were back. [ 35 ] Judges Wood and Shaw do not appear to have considered the direction from the Court of Appeal with respect to the danger of altering the status quo and prejudicing the parties without hearing from both parents, thus erring in law. [ 36 ] Finally, the error that is the most obvious and troubling is Judge Shaw’s Order issuing a Warrant for Committal under s. 40 of the Family Law Act without an application for such by a party. The

section grants this power only where there has been such an application, and the making of the Order was therefore an error in law. Conclusion [ 37 ] The appeal will be allowed and the ex parte Order of Judge Wood as continued by Judge Shaw will be set aside. More specifically, and in the result, both parents return to the position of joint custody of the four children. I decline to decide more than that, i.e., who is the best parent.

In other words, I decline to make any credibility findings. [ 38 ] I note that Phillips J. of this Court stayed the August 12, 2011 Warrant for Committal pending the outcome of this appeal. It follows from my decision to set aside the Interim Parenting Order as continued by Judge Shaw that I also now set aside the Warrant for Committal. [ 39 ] Finally, I am not directing where these proceedings go next (i.e., to the Court of Queen’s Bench or to Provincial Court). Heard on the 3 rd day of November, 2011. Dated at the City of Calgary, Alberta this 2 nd day of December, 2011.

W. A. Tilleman J.C.Q.B.A. Appearances: James A. Smith for the Appellant Fraser Gordon for the Respondent [1] Transcript, July 6, 2011 at pp. 3, 6, 9 and 17. [2] Ibid . at pp. 3, 4, 6, 9, 10, 11, 16, and 17. [3] Ibid . at p. 10. [4] Ibid . at p. 7 [5] Transcript, August 26, 2011 at pp.27-8.