Marriott v. Marriott, 2011 ABQB 94

Court of Queen ’ s Bench of Alberta Citation: Marriott v. Marriott, 2011 ABQB 94 Date: 20110217 Docket: 4803 118208 Registry: Edmonton Between: Derek Clifton Marriott Plaintiff (Respondent) - and - Jana Dawn Marriott (also known as Jana Dawn Loewen) Defendant (Applicant) _______________________________________________________ Memorandum of Case Management Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________ Arising out of the case management meeting of February 16, 2011, I have made the following decisions: 1.

No lawyer for the child [ 1 ] I have concluded that it is not appropriate in the circumstances here to appoint a lawyer for the child. [ 2 ] As our Court of Appeal held in Puszczak , see, e.g., para. 10, the objective when appointing a lawyer for a child is often to ensure that the child has a voice in the proceedings. Here, an expert has been appointed and has prepared and distributed a report which

deals with the child’s expressed wishes and how those wishes should be interpreted or understood by the court.

There is therefore no need to appoint a lawyer for that purpose. [ 3 ] Another objective in appointing a lawyer for a child is to have an independent conduit for information about the child’s needs; again that objective has been met by the bilateral parenting assessment. [ 4 ] Where, as here, because of high conflict between the parents, it becomes not only useful but even necessary to appoint an individual who is able to responsibly communicate with the child, that individual does not need to be a lawyer.

Here, that person is the psychologist, who has been approved by both parents, and who will commence counselling with the child as early as next Tuesday, February 22. In these circumstances, it is not necessary to appoint a lawyer as amicus, as was the case in Kalaserk , rather than a lawyer as advocate. [ 5 ] The D.J.E. decision does not focus on the role of a lawyer for a child and is therefore not helpful in the context here. 2.

Child’s counsellor is non-compellable, but competent, in these proceedings [ 6 ] The psychologist who is appointed as the child’s counsellor, will be in a therapeutic relationship with the child. Therefore, according to well-established principles of privilege relating to the intimacy of that kind of relationship, that psychologist will be non- compellable in these proceedings.

However, if - with the concurrence of the child - that psychologist is of the view that there is information which should be brought to the court’s attention, that psychologist is obviously a competent witness in the proceedings. [ 7 ] During the course of the proceedings, the parents have been warned not to communicate the substance of the hearings to their daughter.

One of the tasks of the psychologist/counsellor will therefore be to explain to the daughter, at their first meeting, whatever the psychologist thinks is necessary to explain about why the current initiative is being undertaken and where this initiative falls within the overall proceedings. 3. Child’s counsellor to be provided with a copy of the bilateral parenting assessment and of this decision; payment of the counsellor [ 8 ] Although the mother would prefer that the counsellor not receive a copy of the bilateral assessment, I have concluded that it is appropriate for the counsellor to receive that material.

The issue of independent assessment of the alienation issue does not arise in relation to the counsellor; the counsellor’s role is not to provide an opinion to the court on whether there has been alienation, but to help the parties’ daughter to a healthier relationship with her parents. Therefore, access to the parenting assessment will not taint the counsellor’s work with the child.

The counsellor will determine what, if anything, to pass along to the child of the information contained in the bilateral assessment. [ 9 ] The counsellor will also be provided with this decision so that she can become aware of the court’s expectations, including, for example, that while the child is living with her father, the mother will have no contact with the child, nor the child with her mother; rather, if the child needs comfort, re-assurance or assistance, she will be able to contact the counsellor. [ 10 ] The father will front-end the payment of the counsellor; however, the issue of whether those costs should be paid entirely by him, entirely by the mother, or shared between them is an issue that will be determined by the trial judge. 4.

Parenting until the trial in May, 2011 [ 11 ] The parents have co-operated in setting an early trial date. The main pre-trial issue remaining is what parenting scheme will take place between now and then.

[ 12 ] The bilateral parenting assessor has recommended that: the father have the care of the child, the mother have no contact with her daughter for 8 months, and, during the 8 month period, all of the parties would receive counselling. However, the mother has not yet had the opportunity of cross-examining the parenting assessor and has not had the opportunity of providing any expert evidence of her own on what parenting regime is in the child’s best interests.

For that reason, and because a trial of the parenting issue will occur relatively quickly, I agree with the mother that it would not be appropriate to implement the recommendations in the bilateral assessment at this time. To be clear, if the trial were not held in May as currently scheduled, I would consider that a material change of circumstance entitling the court to re-assess the interim parenting regime set out in this decision.

In the result, the mother will have what amounts to one final opportunity to prove that she is supportive of her daughter’s best interests in having a healthy relationship with her father. [ 13 ] The mother suggests that, prior to resuming a shared parenting regime, the child have two sessions with the counsellor. I have concluded that it is only necessary for there to be one such session between the counsellor and the child before commencing the shared parenting regime.

In coming to that conclusion, I note the virtual absence of parenting by the father since December 23, 2010 and the harm which the child thereby suffers, and which harm will become more grave and more difficult to treat, the longer her relationship with her father is subjected to its current strains. [ 14 ] Also, with a view to avoiding as much as possible any confrontations between the parents, the parenting exchanges shall take place at the school.

Therefore, on Friday, February 25, which is the first time possible after the first meeting between the child and the counsellor, the child will be in the father’s care from after school on Friday afternoon until Monday, March 7 th , when the child will leave her father’s home to go to school. The mother’s parenting

schedule will commence once the child has arrived at school on Monday morning. [ 15 ] The mother will then parent the child from Monday morning on March 7 to Monday morning on March 14. When the child arrives at school on March 14, the father’s parenting time will begin. [ 16 ] The father will parent the child from Monday morning on March 14 to Monday morning on March 21. [ 17 ] The mother will parent the child from Monday morning on March 21 to Friday, March 25, at the end of the school day, which, if I understand correctly, will be the commencement of Spring break.

My intention is that the mother will parent the child up to the commencement of Spring break; therefore, if the break commences earlier during the week of March 21 than Friday, the mother’s parenting time for that week will cease at the commencement of Spring break. [ 18 ] The father will parent the child from the beginning of Spring break to the end of Spring break. My understanding is that school will recommence on Monday, April 11; the father will therefore parent his daughter until she commences school on Monday, April 11.

If I am mistaken about the day on which Spring break finishes and school restarts, then it is the actual time of re- commencement of school after the Spring break which will terminate the father’s parenting time.

His parenting time will continue until Monday, April 18, at which time the mother’s parenting time will resume. [ 19 ] The mother will commence her parenting time on Monday, April 18 and will continue until Monday, April 25. [ 20 ] The father will parent his daughter from Monday, April 25 to Monday, May 2. [ 21 ] The mother will parent her daughter from Monday, May 2 until Monday, May 9. [ 22 ] The father will parent his daughter from Monday, May 9 until the conclusion of the trial.

The trial judge will determine the parenting regime that will continue after the conclusion of the trial. [ 23 ] I assume that, given the child’s age and abilities and the location of the father’s home relative to the child’s school, the child will make her own way to her father’s residence immediately after school on February 25 and that she will make her own way to school

on March 7 th . If that is not possible, then the father must arrange to have someone pick up his daughter at school on February 25 and delivered to the school on March 7 th . Given the distance from the mother’s residence to the school, I assume that the mother will arrange transportation for her daughter to the school on every access exchange Monday. [ 24 ] While the father is parenting the child, the child will not telephone or text or contact her mother in any way and the mother will not telephone or text her daughter or contact her in any way.

This is a feature of the parenting regime until the time of trial which the counsellor must explain to the daughter at the first counselling session with the daughter. [ 25 ] Starting on February 22, and in every week thereafter until the trial, the counsellor will have a meeting with the child; the parent who has access during the week will facilitate that access. [ 26 ] There will be no discussion by either parent with the child about the parenting regime or about the counsellor’s meetings with the child. [ 27 ] There will be no discussion between the parents about any modifications to the interlocutory parenting schedule, and no changes from the

schedule set out above will be imposed unilaterally by either of the parents. [ 28 ] There will be no police enforcement clause. That clause has not, in the past, been successful. In order to consider imposing a police enforcement clause, the court would, in the circumstances here, given the information obtained by the parents from the police, have had to give the police an opportunity to make representations about the kind of police enforcement clause which they believe they require; we unfortunately do not have time for any such appearance.

In any event, however, parenting should not normally be associated with the police. Here, the run-aways in the past appear to have been at least condoned, if not approved or assisted by the mother. We have the right to expect that this will no longer happen. If, however, there were any run-away by the child until the trial, that will be a material change of circumstance which will entitle the court to re-assess the parenting regime, in addition to any other actions which it might take, including contempt proceedings. 5.

Discipline by the father during his interlocutory parenting time [ 29 ] The mother has asked the court to order that, during his parenting time, the father must refrain both from any physical discipline of the parties’ child and from using denial of the use of the daughters’ 2 cellphones as discipline. I decline to make such an order.

In coming to that conclusion, I have taken into account the decision of the Supreme Court in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) from which this representative comment in the headnote reads: While children need a safe environment, they also depend on parents and teachers for guidance and discipline, to protect them from harm and to promote their healthy development within society.

Section 43 is Parliament's attempt to accommodate both of these needs. It provides parents and teachers with the ability to carry out the reasonable education of the child without the threat of sanction by the criminal law. Without s. 43, Canada's broad assault law would criminalize force falling far short of what we think of as corporal punishment.

The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a concern that to do so risks ruining lives and breaking up families -- a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process. [ 30 ] Each counsel will provide their client with a copy of that decision. [ 31 ] Although that decision deals with physical discipline in the context of assault, the decision also reflects the reality that some children sometimes require physical restraint. [ 32 ] Here, the father denies any allegation of assault of his daughter and the police officer who investigated the mother/daughter

complaint in late December said that the father’s explanation of the situation was credible. Physical discipline, or indeed any discipline, may not be the mother’s approach to improving her daughter’s behaviour, but, until the court accepts an expert opinion that it is in the child’s best interests that no physical discipline be employed or until the father demonstrates that he is abusing parental disciplinary rights, it would be wrong for the court to impose one style or another of discipline on the parents. 6. Pre-trial process [ 33 ] The parents have been able to agree on a

schedule for pre-trial process. I will not repeat every aspect of what has been agreed. I do wish to emphasize, however, that any additional expert report to be presented at trial by either party, except for expert evidence as may be tendered by the counsellor, must be filed and served by April 15, 2011. 7. Costs [ 34 ] As the mother has only been partially successful on the issues raised, each party will bear their own costs of the February 16, 2011 case management. Heard on the 16 th day of February, 2011. Dated at the City of Edmonton, Alberta this 17 th day of February, 2011. J.B. Veit J.C.Q.B.A.

Appearances: Anthony D. Richard, Q.C., McGee Richard for Mr. Marriott Ning Ramos, Ning Ramos Professional Corporation for Ms. Marriott