L.C. v. D.L., 2012 ABQB 451

Court of Queen ’ s Bench of Alberta Citation: L.C. v. D.L., 2012 ABQB 451 Date: 20120710 Docket: 4803 144275 Registry: Edmonton Between: D.L. Applicant - and - L.C. Respondent ______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is an application by D.L. [who is referred to as the “ father ” ] who seeks immediate interim sole custody of a soon to be 7-year-old child of the marriage, with no access granted to L.C [who is referred to as the “ mother ” ] for a period of six months.

There is also an application by the father citing the mother in civil contempt. The father submits that the mother has consistently denied and thwarted his access to the detriment of the child ’ s well being and best interests, destroying in the process the relationship between father and daughter.

He has also submitted that the mother has consistently disobeyed court orders and, that he requires interim sole custody in addition to primary day-to-day care and control of the child in order to ensure that the best interests of the child are met. [ 2 ] The mother responds that while the present system of access with respect to the child is not working, a variation in custody and primary care of the child at this time is unwarranted, impractical, not in the best interests of the child. She denies that she has

systematically thwarted the father ’ s access and alienated him from the daughter. With respect to the contempt application, the mother submits that her actions in this matter have not been contempt of court orders in any real sense, but rather based on the fact that she has no money in which to pay some of the court ordered costs. She seeks some order directing payment of monies owed over the course of time to fit her budgetary needs.

The mother is also prepared to allow the father to have her extended long weekend visits, and other specified access of a more reasonable and generous nature to accommodate the father. [ 3 ] On December 13, 2007, the mother filed a Statement of Claim for Divorce and the Division of Matrimonial Property in this court. On January 8, 2008, the father filed a Statement of Defence and Counterclaim for Divorce and the Division of Matrimonial Property under this action number. [ 4 ] To date, the following court orders have been granted: a.

Interim Interim Without Prejudice Order of Justice Crighton dated December 21, 2007; b. Interim Interim Without Prejudice Order of Justice Crighton dated January 14, 2008; c. Consent Order of Justice Topolniski dated May 7, 2008; d. Order of Justice Topolniski dated September 4, 2008; e. Order of Justice Belzil dated June 9, 2010; f. My Substitutional Service Order of April 5, 2012; and g. My Interim Order of April 5, 2012. [ 5 ] The Consent Order dated September 4, 2008 directed a Bi-lateral Custody Assessment be completed with the cost of $3,500.00 to be split between the parties.

The father has paid the entire portion of this cost. The portion owing by mother has since been reimbursed. [ 6 ] The September 4, 2008 Order also directed that the father was to have access with his daughter on the following dates: a. Saturday, September 13, 2008 from 10:00 am to 5:00 pm and each second Saturday thereafter from 10:00 am to 5:00 pm; and b.

Sunday, September 14, 2008 from 10:00 am to 5:00 pm and each second Sunday thereafter from 10:00 am to 5:00 pm. under the conditions that: such access be exercised in Vauxhall, Alberta (south of Calgary) which is where the mother moved to from Redwater, Alberta (north of Edmonton) in June 2008; and the father ’ s access be spent one-on-one with his daughter. Additionally, the transportation and hotel costs were to be shared between the parties. To date, the mother has not provided the father with any monies to cover these transportation costs.

The father has spent approximately $9,986.47 on these travel expenses (hotel rooms, food and fuel) and he is seeking an Order that the mother reimburse him her one-half, namely $4,993.23, and that such amount be payable forthwith. [ 7 ] The Open Custody Assessment dated December 8, 2010 ( “ Assessment ” ) was released in March 2011. The findings include the following:

a. At Page 6 (3 rd paragraph) - “ her behaviour did appear to be a little extreme for her age ” and “ the mother did nothing to encourage her to interact with either her father or the writer ” ; b. At Page 8 (2 nd paragraph) - “ despite the fact that the father... paid to have visits with his daughter supervised by Family Connections..., the mother ’ s concerns remained unassuaged ” ; c. At Page 9 (3 rd paragraph) - concludes that “ clearly the mother has consistently thwarted her ex-husband ’ s efforts to maintain a relationship of any substance with his daughter, despite her protestations to the contrary ” ; d.

At Page 9 (4 th paragraph) - further indicates that “ there does not appear to be any clear evidence that the father is incapable for caring for his daughter, or any clear support of the mother ’ s stated fears regarding his (the father ’

s) stability; e. At Page 10 (1 st paragraph) - further confirms that “ the father has, in short, provided all of the proof he can that the lack of involvement in his daughter ’ s life is unjustified ” ; and f. At Page 10/11 (last/first paragraph) - recommends that “ conjoint sessions between the child and her father with a therapist experienced in dealing with reunification issues between estranged parents and children ” be arranged. [ 8 ] Following the Open Custody Assessment, unsuccessful attempts were initiated by counsel to negotiate a specified access order by consent.

An Application and supporting Affidavit was filed with the Court by the father on May 24, 2011 in support of obtaining a specified access Order. The mother filed materials in response that focused on the recommendation that reunification sessions be coordinated. [ 9 ] The Order dated June 9, 2011 directed the father attend “ reunification counselling ” with a Collaborative Mental Health Practitioner, for the purpose of strengthening the bond between Father and Daughter so as to minimize any discomfort his young child had while in the father ’ s care.

Interim access was granted to the father to allow such reunification with the intent that the remainder of the application would be heard at a Special Chambers Application on August 19, 2011. This date was set over to September 6, 2011 at 2:00 pm but was later adjourned off of the list due to an overbooking. [ 10 ] The father did attend “ reunification ” counseling with the child before a Health Practitioner on June 18, 2011 and July 9, 2011.

The Health Practitioner ’ s report can be summarized as follows: a. “ Initially, the child appeared ok with her mother leaving and went off to play at the playground ” before returning to the Health Practitioner, clinging to her and stating “ my Mom doesn ’ t want me to have fun with my Dad ” . After the Health Practitioner reassured her it was okay to have fun with both parents, she “ settled and became engaged in activities ” with the father; b. “ While the child may have remained slightly apprehensive she laughed often and appeared to enjoy interacting with her Dad ” ; c.

The mother reported to the Health Practitioner that she would be “ freaking out ” if the father were taking the child alone; d. In the second visit, the child “ immediately became engaged ” with the father at the playground. She “ grabbed for ” the father ’ s hand getting out of the truck and “ alternated between snuggling up against him, crawling on his lap or laying her head on him. She was “ engaged in conversation and the visit overall went well ” . Upon returning to the office, “ the child was quieter than she had been ” during the whole day;

e. The visit on July 16, 2011 was just between the father and his daughter and the Health Practitioner reports that “ all comments from the child were positive regarding her time ” with the father; and f. The visit on August 13, 2011 was supposed to be the first overnight visit, as part of the step process but that the mother “ initially refused to have the child available for a visit ” .

The Health Practitioner confirms in her letter of September 13, 2011 that “ as soon as we got to the stage where the father was supposed to receive overnight visits with his daughter, that she received no response from the mother to her attempts to reach her by phone or email. [ 11 ] The father was able to have a partial visit with the child on August 13, 2011, but only on the terms specified by the mother, being a shorter visit at her house in her presence. Additional attempts were made to negotiate specified access for the father by consent, to no avail.

Any access the father did receive following the unification sessions being terminated by the mother, was at the mother ’ s discretion and on her terms. The father provides a detailed log of such visitation and telephone access, as well as his unsuccessful attempts to communicate and co-parent with the mother. [ 12 ] The father has not yet been able to contribute anything financially to the Invoices sent to him from the Health Practitioner for the reunification sessions and a balance remains outstanding of $1,966.26 to the date herein.

The father is seeking an Order that directs the mother to be solely responsible for the full fees of the Health Practitioner invoiced to them given that she frustrated the process. [ 13 ] My Interim Order on April 5, 2012 granted the father specified access to his daughter as follows: a. Telephone access to the child twice per week, commencing on Thursday, April 5, 2012 and exercised between 7pm and 8pm on Tuesdays and Thursdays each week; b. Interim weekend access as follows: I. Saturday, April 7, 2012 from 9 am to 7 pm; ii. Saturday, April 21, 2012 from 9 am to 7 pm; iii.

Saturday, May 4, 2012 from 9 am to 7 pm (should have read May 5th); iv. Saturday, May 18, 2012 from 9 am to 7 pm (should have read May 10); v. Saturday, June 2, 2012 from 9 am to 7 pm; and c.

Every second weekend from Friday at 6 pm to Sunday at 6 pm commencing on June 16, 2012 and continuing every second weekend thereafter. [ 14 ] With respect to the access granted to the father under the terms of my Order, the child refused to go with the father for the April 7, 2012 visit, and refused to leave the mother ’ s home for the April 27, 2012 visit, forcing the father to have a strained visit with his daughter under the mother ’ s supervision in her home on both occasions.

The visit on May 5, 2012 was denied entirely because the mother was not home and did not contact the father to confirm an alternate exchange location. The visit on May 19, 2012 was missed as a result of alleged unresponsiveness by the mother to the father ’ s telephone calls. The June 2, 2012 visit resulted in police involvement following the mother ’ s interference in the father leaving with his daughter after she was placed in the father ’ s truck.

The mother also informed through a letter from counsel dated June 15, 2012 that she would not make the child available for her first overnight visit with the father, as a result of travel with the child to Saskatchewan. [ 15 ] It is submitted that the mother has systematically denied and thwarted the father ’ s access to his daughter. The mother has also allegedly denied or interfered with the father ’ s telephone access to his daughter and would refuse to answer the father ’ s calls, thereby denying the father ’ s right to co-parent their child together.

[ 16 ] It is submitted that the mother has alienated their young daughter from the father since the reunification sessions, and this behaviour has gone on for years in violation of Court Orders. Conclusion [ 17 ] The status quo, and the court orders with respect to custody and access over the last several years has not been effective in allowing the father to exercise his access. The father has given the Court a reasonable proposal however it would drastically change the 7-year-old child ’ s life.

The child has been doing reasonably well under the care of the mother and the child has a 13-year-old half sister she is close to and lives with. [ 18 ] While the father has been validated by the experts as a good father to the child, the accusations made against the mother, including by the experts, have in many cases been denied or challenged by her. In the context of a Special Family Law Chambers hearing where a number of the material issues are in dispute it is difficult to grant the father sole custody and cut off the mother ’ s access immediately for at least six months.

Accordingly, while I am sympathetic to the father ’ s situation, I direct the matter of his sole custody application will have to proceed to a viva voce hearing. [ 19 ] The father will continue to have telephone access, and alternating access every second weekend from Friday at 6 pm to Sunday at 6 pm. There will be a Police Enforcement Clause.

The father may reapply to the Court for further specified access dates and provisions in addition to the alternating weekend access and the telephone access I ordered on April 5, 2012. [ 20 ] There will be no order citing the mother in civil contempt, as I conclude that at this point that that is not necessary or appropriate.

There will however be a direction that the mother pay and be responsible for any outstanding balance owing to the Health Practitioner for the reunification sessions in the amount of $1966.26 plus any interest charged on those invoices. [ 21 ] A further order will direct the mother to reimburse the father the sum of $4993.23 representing her half of the father ’ s access costs, and these funds will be paid over the next 12 months in equal monthly payments of $416.00. Heard on the 6 th day of June, 2012. Dated at Edmonton, Alberta this 10 th day of July, 2012. Donald Lee J.C.Q.B.A. Appearances: Jack Boudreau

Laurier Law Office for the Applicant Graham Neill Merchant Law Group for the Respondent