IBP v MSP, 2012 ABQB 278

Court of Queen ’ s Bench of Alberta Citation: IBP v MSP, 2012 ABQB 278 Date: 20120426 Docket: 4803 129481 Registry: Edmonton Between: I.B.P. Respondent/Plaintiff - and - M.S.P., Also Known As M.S.R. Applicant/Defendant Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ Introduction

[ 1 ] This Decision is delivered orally, so this Court reserves the right to make any changes to the transcript of this Decision as I see fit. Any changes will not affect the substance of the Decision. Citations for cases and statutes as stated in this Decision will not be provided unless requested by counsel.

In the event that during the course of reciting this Decision, counsel become aware of any error that this Court may make in regards to factual information, then in such case, at the conclusion of this Decision, I would ask that counsel so advise this Court. [ 2 ] This is an application by M.R. (the “ Applicant ” ) against I.P. (the “ Respondent ” ) for: 1. termination of Madam Justice Goss ’ s order without notice dated September 23, 2011 (the “ Goss Order ” ), and 2. the return of the children to her care, or in the alternative, to transfer these proceedings to British Columbia. [ 3 ] The Respondent seeks to have the Goss Order confirmed by this Court as a Final Order, with terms that correspond to an Interim Order granted by Mr.

Justice P. J. McIntyre that the children reside in the primary care of the Respondent, with specified access to the Applicant. That application was adjourned for special chambers to determine jurisdiction and potentially address the custody and access regime. Facts [ 4 ] The parties were married in 1997 in British Columbia and separated in 2002 in Alberta. On November 18, 2004 a Divorce Judgement was granted out of Edmonton, Alberta. There are three children of the marriage ages 16, 11 and 8.

The Applicant was granted sole custody of the children in a Divorce Judgment and Corollary Relief Order dated November 18, 2004. Subsequently an Order granted on December 19, 2008 in Alberta gave the Respondent sole custody of the 16 year old daughter. Custody of the 16 year old is not dispute. The two younger children resided with the Applicant since the parties separated in 2002. [ 5 ] The Applicant has lived in the Salmon Arm area of British Columbia with the younger children for over eight years. Post- separation the Respondent continued to live in Alberta.

He currently resides at the military base in Cold Lake where he is employed. [ 6 ] The Goss Order varied the Divorce Judgment and granted the Respondent interim custody of two younger children. Shortly thereafter he picked up the children and brought them to live with him in Cold Lake. [ 7 ] This application was initially filed by the Applicant on December 20, 2011, which was heard in morning Family Chambers on January 9, 2012. Justice McIntyre adjourned the matter to Special Chambers and put an Interim Custody and Access Order in place. Issues [ 8 ] The issues in this application are: 1.

What is the proper jurisdiction to adjudicate custody and access, Alberta or British Columbia, and

2. If the proper jurisdiction to adjudicate this matter is Alberta, what is the most appropriate custody and access regime for the children at this time? Issue 1. Is Alberta or British Columbia the proper jurisdiction to adjudicate custody and access? Parties ’ Positions A. The Applicant ’ s Position [ 9 ] The Applicant submits that British Columbia is the proper jurisdiction and that custody and access of the children should be determined by the Supreme Court of British Columbia.

In this respect, the Applicant points to the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp), s. 6(3) which provides that where a variation order is sought the proceeding should be heard in the province that has the most substantial connection. In support, the Applicant refers this Court to Shields v. Shields , 2001 ABCA 140 , 281 A.R. 320 and C.R.D. v. N.D.D. , 2009 ABQB 242 . [ 10 ] Up to the present the children have resided in British Columbia for the better part of their lives. They have been in Alberta only since late September 2011.

The Applicant submits that the children ’ s teachers, doctors, and child care providers are all located in Salmon Arm (in particular Ms. Beatrice Johnson, a British Columbia Ministry of Children and Family Services ’ s social worker).

Further, the Applicant submits that certain British Columbia government and community resources have been assigned to her as a consequence of criminal charges against the Applicant. [ 11 ] The Applicant is not seeking immediate return of the children to British Columbia, rather she argues this matter should be heard in British Columbia as that is where the best evidence is available. In this respect, the Applicant acknowledges that the children have adjusted well to school in Cold Lake, Alberta and she does not wish to remove them mid-school year. She does not believe this would be in their best interests. B.

The Respondent ’ s Position [ 12 ] The Respondent submits that while resident in Salmon Arm, the Applicant has since 2003 been involved in an abusive relationship with her husband Fred. This relationship involved repeated domestic violence and disharmony that was witnessed by the children. [ 13 ] The Respondent further submits that in May 2011, the Salmon Arm British Columbia Child and Family Service Office notified the Applicant that she must choose between either her husband Fred or her children, and that the Applicant chose to continue to live with Fred.

In September 2011, the Applicant was charged with three criminal charges of assaulting her mother and mischief to her mother ’ s property. The Applicant was subsequently sentenced to probation on these charges. [ 14 ] The British Columbia Child and Family Service Ministry then removed the children from the Applicant ’ s care and placed them with the maternal grandmother. The Respondent submits that the maternal grandmother contacted him and asked that he take the children. [ 15 ] The Respondent points to the fact that he is a member of the Department of National Defence and works at the Cold Lake 4 Wing Airbase.

His Affidavit filed December 30, 2011, provides evidence that the children are doing well in his care: Exhibits “ L ” , “ M ” , and “ N ” all of which are from third party persons. Lastly, the Respondent submits that his employment is stable, and that he has a stable residence and environment in which the children have flourished. [ 16 ] The Respondent further points to the fact that the Applicant did not take steps to register or confirm the Divorce Judgment in

British Columbia. The Respondent says his immediate action preempted potentially intrusive and harmful measures by the BritishColumbia Ministry, such as subjecting the children to apprehension and interim foster care. On that basis the Respondent takes theposition that the Court should not transfer jurisdiction simply because the children were located in British Columbia for approximatelyeight years.

Instead, the Respondent points to the fact that it is the Applicant’s inability to protect her children that has caused theirresidence to change. [17] Lastly, the Respondent submits that Alberta not only had the status quo jurisdiction, but should retain jurisdiction given thismore recent history.

If Alberta remains the appropriate jurisdiction then the Respondent suggests that the Court confirm the January 9,2012 Interim Order on primary residential care and control, and that based on the evidence the Court should strongly consider parentingtime by the Applicant be supervised, at least until the Applicant can establish a material change in circumstance. [18] Accordingly, the Respondent submits that Alberta is the proper jurisdiction to hear this matter and this Court should maintainits jurisdiction over these proceedings. In support of his position the Respondent refers this Court to: Shields v.

Shields; A.H. v. G.H.,1994 ABCA 393; C.H.G. v. D.C., (ABQB); J.Y.C. v. K.T. 2009 ABQB 603, 483 A.R. 288; M.L.H. v. S.G.H., 2008ABCA 167, 53 R.F.L. (6th) 5; LC.M. v. J.N.S., 2008 ABQB 459, 459 A.R. 290; McKay v. McKay 2004 ABQB 580, 9 R.F.L. (6th) 414;Divorce Act, s. 6; Alberta Rules Of Court, Alta Reg 124/2010. Analysis [19] The key principle is provided by the Divorce Act, s. 6: 6(1) Where an application for an order under

section 16 is made in a divorce proceeding to a court in a province and is opposed andthe child of the marriage in respect of whom the order is sought is most substantially connected with another province, the court may, onapplication by a spouse or on its own motion, transfer the divorce proceeding to a court in that other province.

(2) Where an application for an order under

section 16 is made in a corollary relief proceeding to a court in a province and is opposedand the child of the marriage in respect of whom the order is sought is most substantially connected with another province, the courtmay, on application by a former spouse or on its own motion, transfer the corollary relief proceeding to a court in that other province.

(3) Where an application for a variation order in respect of a custody order is made in a variation proceeding to a court in a provinceand is opposed and the child of the marriage in respect of whom the variation order is sought is most substantially connected withanother province, the court may, on application by a former spouse or on its own motion, transfer the variation proceeding to a court inthat other province. [Emphasis added.]

(4) Notwithstanding sections 3 to 5, a court in a province to which a proceeding is transferred under this

section has exclusivejurisdiction to hear and determine the proceeding. [20] Section 16(1) of the Divorce Act is also relevant: 16(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respectingthe custody of or the access to, or the custody of and access to, any or all children of the marriage. [21] The leading case to determine jurisdiction is Shields v. Shields.

The Court of Appeal at para. 6 held that a court consideringwhether to exercise its discretion to transfer a proceeding under s. 6 should engage in a two-step analysis: first determine to whichprovince the child is most substantially connected, and then consider if the transfer is in the best interests of the child. The Court indiscussing the requirements of s. 6 stated at para. 6:

Section 6 of the Act gives the court the discretion to transfer custody proceedings to another province to which a child of the marriage ismost substantially connected. This

section requires a judge to engage in a two step analysis to decide whether the proceedings should betransferred. That process was described in Holt v. Lippert (1996), (MB CA), 21 R.F.L. (4th) 241 (Man. C.A.) inwhich Helper J.A. stated that: [t]he first question [the motions judge] was required to ask herself was: With which province are the children most substantiallyconnected? Only if the answer to that question was Ontario, could she then have gone on to the second question: Is the transfer of theapplication to Ontario in the best interests of the children? Holt v.

Lippert, supra, at 242. [Emphasis added.] [22] In Martodam v. Martodam, 2007 ABQB 100 at para. 33, 156 A.C.W.S. (3d) 143, Justice Moen explained the test this way: There are two questions that must be asked when considering whether the Alberta court should take jurisdiction over a matter of which acourt of another jurisdiction has already assumed jurisdiction. First, the court must ask whether it can take jurisdiction, and, second, thecourt must ask whether it should take jurisdiction ... [Emphasis in original, citations excluded.] [23] At para. 34 Justice Moen addressed the first part: ...

It is a threshold test to establish whether this particular court can even consider the question at all. At this stage of the analysis thegeneral test is whether there is a real and substantial connection between the forum and the parties or the subject matter ... In the familylaw context, a real and substantial connection can be established on the basis of the child's ordinary residence with reference to theresidence of the custodial parent. [Emphasis added.] [24] Furthermore, in Shields v. Shields, at para. 18, the Court noted that: ... the inclusion of the word “most” in

section 6 of the Act precludes a decision based merely on any substantial connection. [Emphasisadded.] [25] Another restatement of the relevant test and factors is provided by McMahon J. in L.C.M. v. J.N.S., at paras. 24 to 29: 24 When another state has jurisdiction by virtue of the child's habitual residence, two questions arise in determining whether Albertashould take jurisdiction because of the child's physical presence in Alberta: 1. Can Alberta take jurisdiction? 2. Should Alberta take jurisdiction? ... 25 The first question is answered in part by the child's current physical presence in Alberta, giving the Alberta courts the obligation

25 The first question is answered in part by the child's current physical presence in Alberta, giving the Alberta courts the obligationto protect the interests of the child if the facts warrant it. The test is sometimes stated as whether there is a real and substantial connectionbetween the forum and the parties. In this case, there is in my view a real and substantial connection to Alberta. Both parents areCanadian citizens, as is the child. Neither the parents nor the child can become citizens of the UAE. The mother's parents reside inAlberta.

The parents connection to Alberta was sufficient to persuade them that it was in the child's best interests to be born in Calgary,and to carry Canadian citizenship. The child also has an obvious real and substantial connection to the UAE as her place of habitualresidence for the first 30 months of her young life. 26 The second question requires a consideration of which of the two jurisdictions is the forum conveniens. The search is for "thatforum which is the more suitable for the ends of justice": ... 27 Several cases have enumerated relevant factors in the Family Law context: 1. Location of witnesses, 2.

Location where the parties have lived, 3. Location where the evidence will be found, 4. Physical presence of the child in Alberta, 5. The length of time the child has been in Alberta, 6. The strength of the child's bonds to the persons and circumstances in each jurisdiction, 7. Whether the removal of the child was wrongful, 8. Whether removal of the child to another jurisdiction was justifiable, 9. Where it can be most quickly and inexpensively resolved, 10.

Whether moving the child to another jurisdiction would cause the child harm. ... 28 Evidence of the child's best interest will be found in both jurisdictions. The mother and her family are here, as are the mother'sbest employment prospects. The mother's status in the UAE is tenuous at best. The father and his family are in the UAE. The child is tooyoung for attachments to school, church or playmates to be significant.

The child had a nanny whose evidence, if useful, can be given byvideo conference or affidavit in either jurisdiction. 29 There are other factors including any juridical disadvantage to either party, the cost of conducting the litigation and the difficultyof proving foreign law (here, Canadian law): Camco International (Canada) Ltd. v. Porodo (AB KB), [1997] A.J.No. 1120, 211 A.R. 71, affirmed on appeal at [1998] A.J. No. 1563. In that case, the action was in tort which occurred in the UAE and sothe law of the UAE would apply. Thus Alberta declined jurisdiction.

[Emphasis added.] [ 26 ] The children are currently present in Alberta. This Court therefore can take jurisdiction: L.C.M. v. J.N.S. , at para. 25 . [ 27 ] That leaves whether this Court should take jurisdiction, and that is an evaluation of which jurisdiction the children have the most substantial connection. I conclude that is Alberta. There are multiple bases on which I draw that conclusion: 1. The children have resided in Alberta since September, 2011 as a consequence of a valid Alberta court order.

Although the period of their residence in Alberta may be somewhat short, the evidence provided appears to substantiate that they are flourishing, and that their most substantial social interactions are now with Alberta, not with British Columbia. 2. The children have attended school in Alberta during the 2011/2012 school year, have seen Alberta counselors, attended church, and have been involved in school extra-curricular activities. 3. For over half a year the children have been living in a family situation which includes the Respondent ’ s new spouse.

While the children have presumably not developed a step-mother/step-child relationship with the Respondent ’ s new spouse, it appears from the evidence provided that the children have presumably developed some relatively close bonds with the Respondent ’ s new spouse with whom they have been living. 4. The childrens ’ eldest sister, resides permanently with the Respondent and also promotes a “ family ” atmosphere for the children. 5. At this time the children are 8 and 11 years old.

They are therefore on the cusp of leaving behind their early formative years and are beginning to and I believe have begun to form relationships and attachments with similarly aged children in Alberta, which hopefully includes both school and neighborhood friends. The childrens ’ current social and professional contacts are in Alberta. 6. Both parties may be required to call viva voce evidence from witnesses who wish to testify. This is a neutral factor as there are roughly equal witnesses in either jurisdiction. My conclusion is that the Respondent is more likely to call more witnesses.

There will be similar costs for both parties to conduct litigation in either Alberta or British Columbia. 7. Evidence is also a neutral factor, it is divided between both provinces. 8. Alberta has taken ongoing jurisdiction from the Divorce Judgment forward. That now totals three post-divorce orders. 9. the Applicant at no time confirmed the Alberta Divorce Judgment in British Columbia. [ 28 ] The second question of the two-step analysis is whether a change in the custody arrangement is in the best interests of the children. The Court of Appeal in Shields v.

Shields concluded at para. 22 that: ... in the context of a transfer application, the best interests of the child will generally be served by ensuring that the court which will hear the custody proceeding will have the best possible evidence before it. [ 29 ] Once a Court has assigned jurisdiction via the substantial connection analysis, the Court must evaluate whether that

assumption of jurisdiction would not be contrary to the child ’ s best interests. In McGirr v. McGirr , 2010 ABQB 766 at paras. 37-38 , Veit J. noted the global context of that factor: 37 ... That conclusion is based not on the Divorce Act but on the overall law which states that the best interests of the child is "the paramount, if not the sole, criterion to be applied in any judicial disposition regarding custody".

In this province, therefore, issues such as the expense and difficulty of trial are not addressed as separate grounds for declining to transfer the proceedings to another province; if the children's best interests are served by transfer of proceedings, it is irrelevant whether it would be more expensive and difficult for the parties to litigate in one province rather than in another . 38 In Alberta, the test for determining whether it is in a child's best interests to transfer custody proceedings to another province has been further developed in Shields as follows: 22 In the context of a transfer application, the best interests of the child will generally be served by ensuring that the court which will hear the custody proceeding will have the best possible evidence before it. ... 23 However, while availability of evidence will generally be the primary concern, in certain cases other factors may be significant in assessing the best interests of the child .

For instance, in circumstances where the child wishes to attend the proceedings, or where the court or the parties may seek the participation of the child, factors such as the residence of the child and the disruption of travelling to attend the proceedings may also be significant in assessing the child's best interests. 24 In this case, the parties have not presented arguments as to the location of the best evidence. Nor was there any evidence before the chambers judge which specifically addressed this issue.

However, given the substantial connection of the children to Ontario, and given their ongoing residence in Ontario, it is reasonable to conclude that the bulk of evidence that may be presented at trial will emanate from that province. It is there that the children's teachers, health care providers, and social contacts are found. When contrasted with the children's very limited connection with Alberta, and the resultant limited scope of evidence that will emanate from this province, it seems clear that Ontario would be the best forum for this proceeding.

This conclusion is strengthened by the children's presence in Ontario. Although it may be that neither party would choose to call the children as witnesses, the court should not discount the possibility that one or both of the children may wish to attend, or that the court may wish to hear from them. Transferring the proceedings will allow this to occur with minimal disruption to the children. [Emphasis added.] [ 30 ] From my review of the evidence provided, it is my opinion that the “ best interests of the children ” would be better served by continued jurisdiction by the Alberta Court of Queen ’ s bench.

I base my conclusion on the fact that: 1. the children are most substantially connected with Alberta, and 2. it is in the children ’ s best interests for this Court to retain jurisdiction. Issue 2. If the proper jurisdiction to adjudicate this matter is Alberta, what is the most appropriate custody and access regime for the children at this time? The Parties ’ Positions

A. The Applicant ’ s Position [ 31 ] In regards to the second issue, the Applicant submits that if Alberta is the proper jurisdiction to hear this matter, then any Order regarding custody and access should be by an Interim Order. [ 32 ] The Applicant argues that further evidence is required for the Court to make a conclusive determination on this matter. The matter should be adjourned so that additional Affidavits may be obtained from witnesses, and so that the parties can question the witnesses on their Affidavits.

Alternatively, the Applicant suggests a Special Chambers Application with viva voce evidence and leave to call witnesses. [ 33 ] The Applicant suggests parenting and household assessments by a parenting expert may be appropriate. In the interim, the terms of the Order of January 9, 2012 should continue to apply. The Applicant explained that she is attempting to arrange counselling for her and the children that can either be conducted over the internet or the telephone. She believes this is possible but has been advised that she requires a Court Order to make that happen. B.

The Respondent ’ s Position [ 34 ] The Respondent seeks a Final Order that grants him sole custody of the children. He therefore suggests that this Court confirm the January 9, 2012 Interim Order with respect to primary residential care and control. Any access by the Applicant should be supervised. Analysis [ 35 ] A review of the Applicant ’ s and Respondent ’ s respective Affidavits discloses broad disagreement and inconsistency. [ 36 ] For example in the Applicant ’ s affidavit of December 16, 2011, the Applicant: 1.

Refutes the Respondent ’ s allegations that the children were in dire straits and were soon to be apprehended by the Ministry of Children and Family Services in British Columbia and put into foster care. The Applicant states that a Ms. McCallum, a British Columbia Child and Family Services social worker, encouraged the Applicant to send the children to the Applicant ’ s sister. The Applicant says she and Ms. McCallum drove the children to her sister ’ s residence on the evening of September 21, 2011. 2.

Says the children were picked up from that residence by the Respondent after he obtained the Goss Order via an ex parte application. The children were then taken to Alberta. 3. States that the Respondent ’ s wife, Christine, contacted her on numerous occasions by e-mail and text messaging and made disparaging comments towards her in regards to her parenting ability. 4. Deposes in her Affidavit that she has had virtually little contact with the children and that any communication has been by telephone or e-mail.

She further alleges in her Affidavit that the Respondent has now denied her all communication with the children. [ 37 ] In contrast, the Respondent states in his December 30, 2011 Affidavit that: 1. Any text messages sent by himself or his wife Christine to the Applicant were for the reason that they were worried for the

children. 2. He obtained the Goss Order on an ex parte basis as he was extremely concerned for the children ’ s immediate safety and well- being. 3. When the Applicant telephoned his home on September 28, 2011, indicating she was in Edmonton and wished to see the children, he refused because in his words, “ I was concerned to the point that I again went to the military police to alert them, I took J. and M. out of school early, and my family and I locked our doors and waited in fear to see if she would show up. ” The Respondent further alleges abuse of the children by the Applicant.

He challenges the Applicant ’ s ability and fitness to care for the children. These allegations, as well as other third-party comments, are generally inadmissible hearsay evidence. [ 38 ] Given the conflicting Affidavit evidence presented by both parties, this Court does not have a clear picture as to the material facts in this custody proceedings. Furthermore, credibility is in issue and it is trite law that a finding of credibility cannot be made based on Affidavit evidence.

Reliable and cogent evidence is necessary in order for this Court to make an informed decision as to which party, the Applicant or the Respondent, should have custody of the children. The evidence presently before this Court falls short of that standard. In Nieuwesteeg v.

Barron , 2009 ABCA 235 at para. 9 , the majority of the Court stressed that a Court must order a trial when it cannot resolve a conflict in Affidavit evidence presented on a motion: In our view, if we were to restrict our analysis to the evidence the chambers judge considered, given the high standard of review, we would not disturb his conclusion. However, that analysis excluded any consideration of the affidavits filed by the parties, because the chambers judge was unable to resolve the conflicting statements contained therein .

We conclude that the chambers judge erred in proceeding despite the unresolved conflicting allegations by simply ignoring them. Included in those allegations are circumstances which could, indeed probably would, have resulted in a different conclusion if they had been accepted.

We do not fault the chambers judge for being unable to resolve the conflict, but conclude that the correct course would have been to direct viva voce evidence to resolve the conflict . [Emphasis added.] At para. 11 the majority indicated an appropriate procedure: We therefore allow the appeal to the extent of directing a viva voce hearing, at which both the mother and father shall testify . Since both parties have already filed extensive affidavits, and each has had the opportunity to cross-examine on the other's affidavits, no further discovery process is necessary.

We therefore direct that the matter proceed directly to a viva voce hearing. We also direct counsel for the parties to approach the Associate Chief Justice of the Alberta Court of Queen's Bench within ten days of receipt of this memorandum in order to obtain an expedited hearing date. [Emphasis added.] [ 39 ] The case at bar is distinct from the situation in P.A.C. v. W.D.C. , 2012 ABCA 31 , where our Court of Appeal held, at para. 14, that in an application to terminate custody the matter may be resolved despite conflicting assertions.

Those disagreements could be resolved when the chambers judge evaluated all available evidence. The Court at para. 15 agreed with the chambers judge that: ... no prejudice resulted from the decision of the judge not to supplement an already bloated record with further viva voce evidence. [ 40 ] The hearing in P.A.C. v. W.D.C. , did not involve permanent custody of the children, but instead was an interim pre-trial proceeding (para. 15):

... an interim order to address, as the chambers judge noted, "what should happen with the parenting until there can be a fuller trial." (Transcript, p. 226/18-19). In contrast the Respondent is not requesting an interim order of custody of the children but instead a final order. [ 41 ] In the face of the conflicting Affidavit evidence, this Court cannot properly determine custody of the children in the absence of viva voce evidence. This Court therefore directs that the matter proceed directly to a viva voce hearing with leave to call witnesses.

The Court directs counsel for the parties to approach the Associate Chief Justice of the Alberta Court of Queen ’ s Bench for a hearing date of this issue. Conclusion [ 42 ] This matter is to proceed in Alberta and directly to a viva voce hearing with leave to call witnesses, and this Court directs counsel for the parties to approach the Associate Chief Justice of the Alberta Court of Queen's Bench in order to obtain an expedited hearing date. [ 43 ] It is ordered that: 1. The application to transfer this matter to the Province of British Columbia is denied. 2.

The application for a final custody and access order shall be adjourned to a viva voce hearing with leave for the parties to call witnesses. Further, the parties have leave to contact the Assistant Chief Justice to request to request a hearing on an expedited basis. 3. In the Interim, the children of the marriage shall continue to reside primarily with the Respondent and the Applicant shall have access with the children, as follows: (

a) The Applicant shall have liberal telephone or internet video access to the children, such days and times to be arranged by the parties; (

b) The Applicant shall have access with the children once a month on a Saturday from 9:00 a.m. to 9:00 p.m.; (

c) The Applicant shall not have overnight access; (

d) The Applicant shall give the Respondent at least one week ’ s notice of the date on which she chooses to exercise her access; and (

e) The Applicant shall have further in-person access with the children as agreed upon between the parties. 4. The parties shall bear their own costs for the Special Chambers Application. 5. The Order shall be filed notwithstanding a faxed signature of counsel.

Heard on the 12 th day of April, 2012. Dated at the City of Edmonton, Alberta this 26 th day of April, 2012. Don J. Manderscheid J.C.Q.B.A. Appearances: Sarah Dargatz Family Law Office for the Applicant Lawren Wowk Grey Munday Stolfa Wowk LLP for the Respondent