Colbourne v. Colbourne, 2012 ABQB 191

Court of Queen ’ s Bench of Alberta Citation: Colbourne v. Colbourne, 2012 ABQB 191 Date: 20120320 Docket: 4814 001803 Registry: St. Paul Between: Chadwick Ford Colbourne Plaintiff - and - Christine Rita Colbourne Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Chadwick Ford Colbourne seeks variations to the Divorce Judgment granted in this action on July 16, 2007.

In particular he seeks a variation first of the provision that ordered that Christine Rita Colbourne would have sole custody of the children of the marriage and second of the provision requiring him to pay child support. [ 2 ] The application was made in morning chambers in St. Paul. There is no opportunity for the judge to read the affidavits prior to morning chambers. In most cases it is not necessary that they be read in order for a just decision to be made. Normally counsel or the parties are able to describe the evidence sufficiently to permit the judge to confidently determine the proper course.

[ 3 ] Occasionally, however, after hearing counsel or the parties describe the evidence the judge is not confident as to the proper course and it becomes necessary for the judge to reserve decision so that he or she can read the evidence and put himself or herself in a position to confidently decide. This was such a case. [ 4 ] I have now read the evidence. [ 5 ] The parties were married in September 1998. They separated in May 2005 and divorced in July 2007.

They have three children aged 10, 8, and 6. [ 6 ] The existing formal custody arrangement has been in place since December 2006 when Belzil J. ordered that Christine Colbourne would have sole custody of the children. Mr. Colbourne did not appear at the application in which that order was made. Ms. Colbourne swore at that time, “I am informed and verily believe that the Respondent [Mr. Colbourne] may again have involved in the consumption of illicit drugs.” [ 7 ] Belzil J. also granted Ms. Colbourne leave to proceed to divorce by the desk procedure. Mr.

Colbourne did not participate in the proceedings that resulted in the Divorce Judgment. [ 8 ] Mr. Colbourne now swears: [Ms. Colbourne] has become increasing unstable in the past three years, with the abuse of alcohol, drugs and partying. In addition, and as a result of her instability, she has changed residency twice in the last three years. I am aware of the Defendant being charged with a DUI in the last five months and I believe that this resulted in a conviction. Most recently, [Ms. Colbourne’s] instability caused the children to be apprehended by the Saskatchewan Social Services. . . .

The RCMP advised that there was alcohol and drug involvement and upon executing the search warrant, they found the children in the home unattended with our 10 year old child as a babysitter. I believe that Social Services were immediately informed and that they apprehended the children. I confirm that Social Services have placed the children in my care. Although the children were apprehended, to date, Social Services has not pursued an application. They did advise that I should enroll the children in school in Bonnyville, Alberta. I confirm that the children are [so] enrolled . . . as of March 12, 2012. [ 9 ] Mr.

Colbourne also admits in his affidavit that he had substance abuse issues in the past. He swears that he has been clean for three and a half years. He has a responsible job and involvement in the community in which he lives. He is remarried. He and his new wife have a 4 month old child. His new wife is currently on maternity leave and is able to care for the children. He swears as well that he is in contact with members of Ms. Colbourne’s family who are concerned for the children’s welfare. [ 10 ] Ms. Colbourne has filed an affidavit in response. She questions the relevance of Mr.

Colbourne’s opinion that she is unstable but does not state that she is stable. Neither does she present any evidence to permit me to conclude that she is. She admits having been convicted, on a guilty plea, to driving with more than 80 mgs of alcohol in 100 mls of her blood. She complains that the apprehension of her children was unlawful. She does not respond to the allegation that she currently has substance abuse problems. Indeed she does not mention that subject at all. She does not respond to the allegation that she has left the children unattended. [ 11 ] Ms. Colbourne is not represented.

This may in part explain why her affidavit does not address the points it needs to. [ 12 ] I am satisfied that the evidence before me, as it is, justifies varying the Divorce Judgment to regularize the current de facto custody arrangement. I am satisfied that the best interests of the children are served by their remaining in their father’s custody at least

until evidence is adduced to establish that some other arrangement better serves their best interests. [ 13 ] I do not wish to foreclose Ms. Colbourne’s ability to apply to the court hopefully with the assistance of legal counsel to establish that the best interests of the children are better served by some other arrangement. The order I make is made on the basis of the evidence that justifies it but which does not necessarily fully describe all the relevant circumstances. Therefore my order will be without prejudice to Ms.

Colbourne’s ability to make application without establishing a change of circumstances from those that, on the evidence before me, exist today. [ 14 ] As Mr. Colbourne has custody of the children, I order that the provision of the Divorce Judgment requiring him to pay child support be cancelled as of March 10, 2012. Heard on the 19 th day of March 2012. Dated at the Town of St. Paul, Alberta this 20 th day of March 2012. Brian R. Burrows J.C.Q.B.A. Appearances: Jason J. Conlin for the Plaintiff Christine Rita Colbourne appeared without counsel