NMA v AS, 2011 ABQB 788

Court of Queen ’ s Bench of Alberta Citation: NMA v AS, 2011 ABQB 788 Date: 20111214 Docket: 4803 147913 Registry: Edmonton Between: NMA Plaintiff/Applicant - and - AS Defendant/Respondent Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] The Applicant Mother seeks a declaration that the Father is in contempt of my Order granted October 21, 2011; as well as an Order providing interim custody and residential care of the child exclusively to the Mother and an Order preventing the Father and/or his family from any contact or involvement with the child until my final Judgment is issued; and an Order limiting or preventing the Father from making any further Court applications. [ 2 ] The basis for the application is that the Father has engaged in oppressive, high handed, and bad faith conduct that should be

sanctioned to the fullest extent of the law in deliberately refusing to comply with the parenting access times as directed. [ 3 ] Incidental to this application by the Mother and Counsel for the Child, is to release $10,000 from the monies held in trust of over $158,000 in Queen’s Bench Action No. 0903 14505 with the Court. The $10,000 would be released to secure a retainer arrangement with Family Restructuring Therapy for the parties to assist the Child in family restructuring and counselling.

This application was dealt with separately in written Reasons now reported at 2011 ABQB 789 given that the funds are held in trust in different Court files, and at least one of the alleged Creditors objects to it’s distribution for this purpose. [ 4 ] The Father AZ opposes all aspects of the Mother’s application, arguing that the access

schedule I ordered was not working at all; that notwithstanding his encouragement, the 9 year old Child was refusing to go and that it is the Mother’s fault not his; and that the Child’s family doctor has now recommended that there be no further overnight visits until a further assessment, in part since the Child’s schooling is suffering as a result of the ordered visits. [ 5 ] The Father does not specifically deny that he disobeyed my October 21, 2011 Order, but objects to any change in the residential care and control of the Child as a result because since the Order of October 21, 2011 was pronounced, the son has been performing very poorly in school, and his concentration is almost non-existent. [ 6 ] The Father submits that the Child’s teacher on November 11, 2011 sent him an email stressing that the Child was beginning to struggle in school, and the Father deposes in his December 8, 2011 Affidavit that my October 21, 2011 Order “has had a very negative impact on my son’s school progress”. [ 7 ] The email exchanges that took place between the Father and the Child’s teacher are marked as Exhibits “C” to the Father’s December 8, 2011 Affidavit.

They do not describe the Child as having serious academic problems, but only describe him as having “some problems academically” that are “not serious”. There is no connection that I can see between the problems created by my October 21, 2011 Order and the Child’s difficulties, other than this Child is having difficulties collaterally largely as a result of the Father’s insistence that he will only obey Court Orders that he finds agreeable.

The Father must take responsibility for not complying with my Court Order, and it is he who must take overall responsibility for his actions generally throughout these proceedings which have regrettably collaterally and inevitably affected the Child over the course of time. [ 8 ] Counsel for the Child has also provided the Court with Child’s most recent September 1 to November 19, 2011 Assessment of Learning. This assessment notes that during this period of time the Child has been absent for a day and half, and late on three occasions, all while the Child was in the care of the Father.

The Assessment of Learning for this Grade 4 Child seems to indicate that the Child is doing well in school generally, although he is having “a hard time grasping many of the basic concepts” in his math studies and is “therefore struggling academically”. Overall the Child is demonstrating and achieving proficiently.

Accordingly the Father’s argument that the Child has been performing very poorly in school, and that his concentration is almost non-existent, is not supported by the Child’s Assessment of Learning, or by any other cogent evidence; and even if there is a problem there is no direct connection that can be shown to the Mother. [ 9 ] The Father also objects to the Mother’s present application to materially change the residential care and control of the Child as a consequence of his Contempt because the Child’s family doctor on November 30, 2011 recommended that the overnight visits should be suspended until a proper assessment is done on the Child.

The doctor recommended that the Child see a Paediatrician as well as a Psychologist for purposes of an assessment. [ 10 ] It is correct that on December 6, 2011 the Child’s family doctor recommend that the Child’s sleep over visits with the Mother be suspended until the assessment was completed, although I see no basis or reasoning specified by the doctor for the doctor arriving at this conclusion. An assessment will be part of the Family Restructuring Therapy I have now ordered. [ 11 ] Counsel for the Child also provided a Disciplinary Report with respect to the family physician.

The Disciplinary Report indicates that the family physician in question had been found guilty of unbecoming conduct in the treatment of his patient between January 14, 2006 and February 15, 2007 by having an inappropriate relationship with his patient, which included sexual intercourse. On March 12, 2010 the Counsel of the College of Physicians and Surgeons of Alberta suspended that doctor’s registration with the College for a period of 18 months. I conclude that nothing specific turns on this doctor’s recent suspension and reinstatement at this point.

Analysis [ 12 ] Following a 13 day viva voce hearing which commenced on October 3, 2011, a Provisional Parenting Order was directed, pending written submissions from all the parties, and pending the release of my final decision. This Provisional Parenting Order pronounced on October 21, 2011 was worked on exhaustively and had the cooperation/agreement of all parties, who were expressly advised that there would be adverse inferences drawn/consequences if any party willfully disobeyed/obstructed it’s provisions. The access rules and

schedule provided as follows:– 1. The Mother’s access to the Child, pending the final judgment by Justice Lee shall be as follows: · Sunday, October 23, 12:00 to 6:00 pick up and drop off to be at the Namao Police Station, 9641 - 167 Avenue.

Station, 9641 -167 Avenue. · Sunday, October 30 12:00 to 6:00 pickup and drop off to be at the Namao Police Station. · Monday, November 7 from 4:00 pick up at the Namao Police Station until Tuesday November 8 drop off at school. · Monday, November 14 from 4:00 pick up at the Namao Police Station until Tuesday, November 15 drop off at school. · Monday, November 21 from 4:00 pick up at the Namao Police Station until Tuesday, November 22 drop off at school. · Monday, November 28 from 4:00 pick up at the Namao Police Station until Tuesday, November 29 drop off at school. · Tuesday, November 29 from 4:00 pick up at the Namao Police Station until Wednesday, November 30 drop off at school. · Monday, December 5 from 4:00 pick up at the Namao Police Station until Tuesday.’December 6 drop off at school. · Tuesday, December 6 from 4:00 pick up at the Namao Police Station until Wednesday, December 7 drop off at school. · Monday, December 12 from4:00 pick up at the Namao Police Station until Tuesday, December 13 drop off at school. · Tuesday, December 13 from 4:00 pick up at the Namao Police Station until Wednesday, December 14 drop off at school. · Monday, December 19 from 4:00 pick up at the Namao Police Station until Tuesday, December 20 drop off at school. · Tuesday, December 20 from 4:00 pick up at the Namao Police Station until Wednesday, December21 drop off at school. · Wednesday, December 21from 4:00 pick up at the Namao Police Station until Thursday,December2l drop off at school.

2. The parties shall have access to the Child, during Christmas as follows: · Father - Saturday, December 24 until midnight and then the Child shall be delivered to the Mother’s home. · Mother - Sunday, December 25 from 12:00 a.m. until Saturday December 31 at noon, drop of to be at the Namao Police Station. · Father - Saturday, December 31 at noon until School recommences. 3. Thereafter Mother’s access in the year 2012 shall be Monday after school until Thursdays with drop off at the school shall continue as outlined above until Judgment from the Court is rendered regarding the custody and access matter. 4. Neither parent nor any member of his or her family, including a sibling shall:

a) Speak in a derogatory fashion about the other parent to the Child or within hearing distance of the Child.

b) Speak about the Court proceedings with or in the presence of the Child.

c) Speak about financial issues including return of personal property with the Child. 5. Should the Child refuse to go on the visit, the other parent who has care of the Child shall encourage the Child to go and the other parent (shall: sic) leave the police station. 6. No member of the A or S family shall attend at the pick up or drop off locations at the above noted times. The parents shall be the only ones involved in the exchanges. 7. Neither party shall consume alcohol or non-prescription drugs while the Child, is in his or her care and custody. 8.

Neither parent shall smoke in a car with the Child nor in a house where the Child is present. Any an all smoking shall be done outdoors and not in the presence of the Child. 9. Neither parent shall use profanity during access exchanges nor in the presence of the Child including on phone calls with the other parent. 10. Both parents shall use best efforts to ensure that the Child’s homework is done on a nightly basis. 11. Child’s counsel shall meet with the Child to review the within Order. 12. Child’s counsel may meet with the sibling for a separate meeting to review the within order if she wishes to participate.

13. The only contact between the parents shall be via text message. 14. The Child, shall not be permitted to have a cell phone provided by the father during his parenting time with the mother. 15. There shall be no telephone contact initiated by any of the S family members with the Child during the parenting time with the mother. 16. Both parents shall actively encourage the Child to attend at and enjoy his parenting time with the other parent. 17.

Both parents shall attend and complete AADAC intake assessment for potential alcohol and/or substance abuse within 30 days of the date of this order and to follow-up and complete any recommended treatment. 18. Both parents shall attend individual sessions with a counselor with emphasis on necessary anger management treatment within 30 days of the date of this order. 19. AS and his extended members are restrained from being within 200 metres of the Mother’s residence, being Edmonton, her place of employment, and from being within 100 metres of the Mother anywhere else in the Province of Alberta. 20.

NMA and her extended family members are restrained from being within 200 metres of the Father’s residence being Edmonton, his place of employment, and from being within 100 metres of the Father anywhere else in the Province of Alberta. 21. The parties are hereby restrained from harassing, molesting, watching, following, telephoning or otherwise interfering with or contacting each other, either directly or indirectly, and either personally or by agent, anywhere in the Province of Alberta, except as otherwise provided in this Order. 22.

Contact between the parties in the presence of legal counsel, or at mediation or court proceedings shall not be considered a breach of this Order. 23. The parties complying with the terms of any current or subsequent Queen’s Bench or Provincial Court Order with respect to the parenting of the parties’ Child, and any contact between the parties arising from a current or subsequent Queen’s Bench or Provincial Court Order with respect to parenting shall not be considered a breach of this Order. 24.

If either of the parties, or any other person on their behalf, breaches any of the terms of this Order, then a Peace Officer which shall include but not be limited to the Royal Canadian Mounted Police, the Edmonton Police Service, and any other Police force shall provide assistance to ensure that the offending party complies with its terms. Before enforcing the terms of this Order, a Peace Officer must first ensure that the party has been served with a copy of this Order. If not served, the party must be shown a copy of the Order by the Peace Officer and be given a reasonable time to comply with its terms.

If the party fails or refuses to comply with this Order, the Peace Officer shall do such lawful acts as may be necessary to give effect to its terms including, if necessary, arrest, detain and bring the party at the earliest possible time before a Justice of the Court of Queen’s Bench to show cause why the party should not be cited for civil contempt. 25.

Any police or peace officer which shall include but not be limited to any detachment of the Royal Canadian Mounted Police, the Edmonton Police Service or any other Police force shall do all acts as may be necessary to enforce the terms of this Order, and specifically, to deliver the said Child to the care of the party who, by the provisions of this Order, is intended to have the care and control of the said Child at the time the breach occurs. The police officer is given full power and authority to use as much force as may be necessary to carry out the terms of this Order.

26. Upon the Plaintiff or Defence being in breach of any of the terms of the within Order, then in such event any Peace Officer, RCMP or any other Enforcement Officer shall forthwith arrest the Plaintiff or Defendant, detain him or her, and bring him or her, at the earliest possible time before a Justice of the Court of Queen’s Bench of Alberta to show cause why he or she should not be committed to civil contempt. 27.

This Order is sufficient authority for the keeper of a correctional institution to receive the offending party into custody and to safely keep the offending party pending an appearance before a Justice of the Court of Queen’s Bench of Alberta. [ 13 ] Despite this access Order being in place only from October 2, 2011, access only occurred as scheduled on Sunday, October 23, 2011, October 30, 2011, and November 7, 2011. [ 14 ] Ms.

NMA deposes in her December 8, 2011 Affidavit at paragraphs 9 through 15 the numerous difficulties that she has encountered in the attempting to gain access to her Child as Ordered by this Court:– 9. On Monday, 7 November 2011, I attended at the Namao Police Station at 4:00p.m. to pick up LA. AS and LA attended and LA did not wish to leave with me. Various officers were Involved and ultimately LA left with me. The Defendants behaviour was abusive- In addition to railing at me, calling me a thief and a liar, AS told the Police that I had taken all of his money and that he was broke.

He also took all of his change out of his pocket and attempted to hand if over to LA and telling LA “you know where I live”. Attached and marked as Exhibit “C” to this my Affidavit is a copy of the General Occurrence Report prepared by EPS regarding this Incident. 10. On Monday, 14 November 2011, I attended at the Namao Police Station at 4:00p.m. to pick up LA. The Police Station was very busy and I was unable to explain the situation to the desk officers. When AS and LA arrived, LA stated that he did not wish to come with me and he and AS left together. 11.

The Namao Police Station told me that I should go home and from there make a Police Report. I did so and later in the evening, a Police Officer attended to take my statement and to prepare a Report. I advised that I did not want to have the Defendant arrested because then my son would hate me even more as AS was clearly communicating all matters to LA. Attached and marked as Exhibit “D” to this my Affidavit is a copy of the General Occurrence Report from that date. 12.

I have requested the subsequent Police Reports for 21 and 28 November and 5 December2011, however to date I have only received those for 21 and 28 November 2011. I shall supply these to this Court, once available. Attached and marked collectively as Exhibit “E” are the General Occurrence reports for the 21 and 28” of November. 13. On 28 November 2011, I received a one-way text from AS advising that LA was sick and that he would not be bringing him to the Police Station for my access.

On 29 November I contacted LA’s school to see what was occurring and was advised that tendon was present at school on the 28th he had missed the morning of 29 November 2011 but was at school for the afternoon of 29 November 2011. I attended at the Namao Police Station on 28 November 2011 as scheduled. Neither AS nor LA attended at the Police Station. I made a complaint to the Police regarding the ongoing contemptuous conduct of AS and a warrant was issued for AS. I am unable to contact AS via text as the texts he sends are one-way only. 14. Later that evening, I was advised by Constable D.

Roy that the Police had attended at the Defendant’s stated address of [...] - 87 Street, Edmonton, Alberta, where it appears they were met by RS, who advised that AS did not live at that address and that he did not have contact information for AS. I was also advised that the Police had conducted an address and registration search for AS and due to AS’s receipt of Social Assistance benefits they had another address for him. I was later advised that he did not reside there either. 15. On 5 December 2011, I again attended at the Namao Police Station to pick up LA. AS did not even bring LA to the Police Station.

Instead he handed the desk officer a doctor’s note. I was not given the opportunity to look at the note. The Police officer advised AS about the Court Order and he simply shrugged. She then advised that he was being arrested as there was a warrant out for him and he complained that there was nothing in the Order that permitted his arrest. She read him his rights and asked if he understood and he said

‘no’. He also threatened that he was going to sue the Police for their involvement, and it was necessary for the female constable to go and get two other officers to assist in arresting AS. [ 15 ] Each of these exchanges for purposes of access to the 9 year old Child of the marriage occurred at the Namao Police Station as part of my October 21, 2011 Order.

General occurrence reports for November 7, November 14, November 22, and November 28, 2011 have been provided by the Edmonton Police Service, and the police have in my opinion clearly described the lack of cooperation and the disruptive actions of the Father that eventually lead to his arrest by them for non-compliance with my Order. The Mother’s attitude and actions as documented by police are generally restrained and reasonable in the circumstances.

The Contempt Application [ 16 ] In the Father’s Affidavit sworn on December 1, 2011 the Father admits that he isn ot following my Court Order and understands the consequences when he states as follows at paragraph 8:– 8. As I stated in paragraph 3 of this Affidavit, the

schedule spelled out in the Order pronounced on 21 October 2011 is not working at all. LA refuses to go to Ms. NMA’s home and I will not force him to do so. I am hereby stating that I will not continue with the

schedule that has been ordered . I mean no disrespect to the Court by my son’s mental health takes precedence over Court Orders. I understand the implications of not complying with Court Orders and I am ready to accept the consequences . However, I cannot, in good conscience, continue to comply with an Order that has a very negative impact on my son’s health and school performance. [Underlining Added] [ 17 ] The Father obviously intends not to comply with my Court Order of October 21, 2011 as he has stated that in his own words in the future.

He also clearly intends to disregard any Court Orders that he does not agree with, as is evident by his other conduct during the course of these proceedings. He is in contempt of my Court Order of October 21, 211. [ 18 ] Notwithstanding Mr. AS’s denials and accusations, I have concluded that it is clear that the Mother has acted responsibly and in accordance with my October 21, 2011 Order with respect to access visits, but that she has been frustrated in exercising her access by the Father.

The involvement of the City of Edmonton Police clearly establishes the attitude and conduct of the Father that puts him in knowingly breach of my October 21, 2011 Order. [ 19 ] I find that the Father is in contempt of my October 21, 2011 Order.

The sanction for this breach follows. [ 20 ] It is clear to me that it is impossible to receive the Father’s cooperation and that the Child will not have any access visits with the Mother as ordered without at least temporarily removing the Child from the care of the Father, and prohibiting he and his extended family from having any access to the Child. [ 21 ] While this is most regrettable, particularly at Christmas, I have concluded that this is in the best interests of the Child.

The constant friction and involvement of the Child by the Defendant places the Child in an extremely difficult position and affects his life negatively. The Police also cannot be expected at one of their police stations to constantly monitor and supervise these extremely contentious drop off and pick up exchanges.

The Mother cannot afford to have her lawyer constantly return to Court to bring these problems to the Court’s attention where there is a deliberate pattern of non-compliance and frustrating of the Court process by the Father. [ 22 ] After a cooling off period, the Father can purge his contempt, and have the matter of his access to the Child revisited. The Child’s situation and condition will be closely monitored by the Court. The Child’s counsel has agreed to provide a detailed written update with respect to the Child on January 9, 2012.

[ 23 ] As such I have suspended the previous October 21, 2011 Order with respect to custody, access and parenting time and replaced it with the following provisions as a result of the Father’s contempt of that Order. [ 24 ] Henceforth the Mother shall immediately have sole custody and residential care of the Child of the marriage until further Order of this Court; and there shall be no contact or access with the Child by the Father, or his extended family members.

The Child will continue to attend the same elementary school that he is presently attending in the City of Edmonton, and the Father and the extended family are restrained from being within 25 metres of that school; as well as restrained from being with 200 metres of the Mother’s residence, the Mother’s place of employment, and anywhere else in the Province of Alberta. [ 25 ] Each party will be restrained from harassing, molesting, watching, following, telephoning, or otherwise interfering or contacting each other, either directly or indirectly, either personally or by agent, anywhere in the Province of Alberta, except as otherwise provided by the Court. [ 26 ] In that regard, contact between the parties in the presence of legal counsel, at mediation, or at family restructuring therapy or Court proceedings should not be considered a breach of this Order.

There will be a police enforcement clause such that a police officer will provide assistance to ensure that the parties comply with the terms of this Order. Solicitor-client costs of $2,500 are awarded, payable immediately, to counsel for the Mother. To prevent unnecessary applications and to properly

schedule hearing time for necessary applications, a restriction is placed on the Father’s ability to file motions. All of the Father’s motions/applications will have to be reviewed first by my office before they can be filed to ensure that they are proper and can be scheduled on a timely basis. Disposition [ 27 ] The new Order issued as of December 8, 2011 finds the Father in contempt and as a result:– 2. The Plaintiff shall immediately have sole custody and residential care of the Child of marriage, until further Order of this Honourable Court. 3.

There shall be no contact or access with the Child, by the Defendant, or his extended family members, until further Order of this Honourable Court. 4. The Child shall continue to attend [...]School in Edmonton, Alberta. 5. The Defendant and the S extended family members are restrained from being within 25 metres of [...] School, and 200 metres from the Plaintiff’s residence, being [...] Lancaster Terrace, Edmonton, the Plaintiff’s place of employment and from being within 100 metres of the Plaintiff anywhere else in the Province of Alberta. 6.

The parties are hereby restrained from harassing, molesting, watching, following, telephoning or otherwise interfering with or contacting each other, either directly or indirectly, and either personally or by agent, anywhere in the Province of Alberta, except as otherwise provided in this Order. 7.

Contact between the parties in the presence of legal counsel, at mediation, at Family Restructuring Therapy or Court proceedings shall not be considered a breach of this Order. 8 The parties complying with the terms of any current or subsequent Queen’s Bench or Provincial Court Order with respect to the parenting of the parties’ Child, and any contact between the parties arising from a current pr subsequent Queen’s Bench or Provincial Court Order with respect to parenting shall not be considered a breach of this Order.

9. If either of the parties, or any other person on their behalf, breaches any of the terms of this Order, then a Peace Officer which shall include but not be limited to the Royal Canadian Mounted Police, the Edmonton Police Service, and any other Police force shall provide assistance to ensure that the offending party complies with, its terms. Before enforcing the terms of this Order, a Peace Officer must first ensure that the party has been served with a copy of this Order. If not served, the party must be shown a copy of the Order by the Peace Officer and be given a reasonable time to comply with its terms.

If the party fails or refuses to comply with this Order, the Peace Officer shall do such lawful acts as may be necessary to give effect to its terms including, if necessary, arrest, detain and bring the party at the earliest possible time before a Justice of the Court of Queen’s Bench to show cause why the party should not be cited for civil contempt. 10.

Any police or peace officer which shall include but not be limited to any detachment of the Royal Canadian Mounted Police, the Edmonton Police Service or any other Police force shall do all acts as may be necessary to enforce the terms of this order, and specifically, to deliver the said Child to the care of the party who, by the provisions of this Order, is intended to have the care and control of the said Child at the time the breach occurs. The police officer is given full power and authority to use as much force as may be necessary to carry out the terms of this order. 11.

Upon the Plaintiff or Defendant being in breach of any of th terms of the within order, then in such event any Peace Office, RCMP or any other Enforcement Officer shall forthwith arrest the Plaintiff or Defendant, detain him or her, and bring him or her, at the earliest possible time, before a Justice of the Court of Queen’s Bench of Alberta to show cause why he or she should not be committed for civil contempt. 12.

This Order is sufficient authority for the keeper of a correctional institution to receive the offending party into custody and to safely keep the offending party pending an appearance before a Justice of the Court of Queen’s bench of Alberta. 13. The sum of $10,000 00 shall be immediately released to Andrea Doyle of the Family Law Office, from monies held in Trust with the Court under Queen’s Bench Action #0903 14503, to secure retainer arrangements for Family Restructuring Therapy for the parties’ to assist the Child. 14.

The sum of $2,500 00 shall be immediately released to Lana Robinton of Lana Robinton Professional Corporation, from monies held in Trust with the Court under Queen’s Bench Action #0903 14503, as costs ordered against the Defendant for his contempt of the Orders of Justice Lee of 21 October 2011. 15. Any future documents for service upon the Defendant shall be deemed to be properly served, once sent by regular mail to 17932 - 87 Street, Edmonton AB. 16.

The Defendant is hereby precluded from filing with the Court of Queen’s Bench, any Applications, Motions, Affidavits or other materials; without, the express permission of the Office of the Honourable Justice D. Lee. 17. Counsel for the Child shall file with the Court and circulate to the Defendant and opposing Counsel, her responses to the written submissions of the Plaintiff and the Defendant, on or before 9 January 2012. 18. Alberta Rules of Court, Rule 9.4(2)(

c) is invoked, and the approval of the Defendant to this form of Order is dispensed with. 19. The faxed signature of Counsel for the Child to this Order shall not be an impediment to filing this Order.

Heard on the 9 th day of December, 2011. Dated at the City of Edmonton, Alberta this 12 th day of December, 2011. Donald Lee J.C.Q.B.A. Appearances: Lana Robinton for the Applicant AS Appeared on His Own Behalf Andrea Doyle Family Law Office for the Child