MacDermaid v. Lucas, 2012 ABQB 80

Court of Queen ’ s Bench of Alberta Citation: MacDermaid v. Lucas, 2012 ABQB 80 Date: 20120201 Docket: 4803 148979 Registry: Edmonton Between: Fatima Shawn MacDermaid Plaintiff - and - Trevor Andrew Lucas Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Fatima Shawn MacDermaid seeks a variation of the Divorce Judgment granted on June 24, 2009 in this action.

In the Divorce Judgment, Yamauchi J. ordered: That the parties will have joint custody of Cole and Blade with the children maintaining their primary residence with the Defendant. [ 2 ] The parties ’ child, Blade, was 11 years old at the time of the Divorce Judgment. His brother, Cole, was 10. Blade is now 14. Cole is 13. They both live with the Defendant, Trevor Andrew Lucas, in Whitby, Ontario. They have always lived in Whitby, Ontario. Ms. MacDermaid lives in Edmonton. In the summer of 2011 Blade indicated a desire to move to Edmonton to live with his mother.

This application resulted. [ 3 ] The parties were married in Oshawa, Ontario in 1996. They separated on November 15, 2006 when their sons were 9 and 8. Ms. MacDermaid moved to Alberta. Blade and Cole stayed with their father in Ontario. Ms. MacDermaid swears that this was because at the time she moved to Alberta, the children did not want to leave their friends, their school and their community.

[ 4 ] In the context of this application, Verville J. ordered that Blade be interviewed by a parenting expert in Ontario who could determine Blade ’ s wishes. The materials include the report of Derek Foster, an Assessment Clinician in Oshawa, Ontario who was appointed for that purpose. Mr. Foster is careful to state in his report that he has not made any assessment and makes no recommendations. He reports only what Blade told him. [ 5 ] Blade told Mr.

Foster that his original reason for wanting to stay in Ontario when his mother moved to Alberta was frustrated somewhat when a year and a half after she moved his father moved house and he changed schools. He told Mr. Foster of strains which have developed in his relationship with his father which he, Blade, connects with his father beginning a new relationship with a new partner. He told Mr. Foster that his father favours his brother, Cole, who is mildly autistic. He said he has a difficult relationship with his brother and that is one of the reasons he wishes to leave his father ’ s home.

He said he anticipates missing the contact he has with extended family members and friends if he moves to Alberta. However he anticipates developing replacement relationships. He anticipates that he would not be treated as strictly in his mother ’ s home as he perceives he is treated in his father ’ s home. [ 6 ] Blade said his primary reason for wanting to move to Alberta was to spend time with his mother before he goes off to university. His secondary reason is the difficulty he is currently experiencing in his father ’ s home.

He anticipates aggravation of his situation if he is required to stay with his father despite his request to move to Alberta. [ 7 ] Ms. MacDermaid has contacted the school Blade would attend if he were to move to Alberta. Blade is presently in a semester system in Ontario. One semester finishes at the end of January. A new semester begins soon. The school to which he would go in Alberta is not on a semester system. Ms. MacDermaid offers in her affidavit hearsay evidence as to the opinion of the Vice- Principal of the Alberta school on the likely success of a transfer for Blade.

She also exhibits a communication from the Vice-Principal in which he says: It should be noted that registration for grade nine part way through the school year in the absence of any or all other contextual information is not deemed in the best interests of the average student. Grade nine is a pivotal year of decision for most students and an important time to map out future considerations specific to high school streaming.

The school recommendation is that students remain in their current educational setting until such time as they have completed their studies for that year, particularly in grade nine. [ 8 ] I have reviewed the court file and read the affidavits filed by Ms. MacDermaid. I am concerned by the extent to which Ms. MacDermaid appears to have involved Blade in the process by which this dispute will be decided by the Court. I am similarly concerned that her affidavits consist mainly of a recounting of what Blade has told her. I see very little evidence of any objective assessment of the situation on Ms.

MacDermaid ’ s part. There is little or no information offered about the home into which Blade would be moving, let alone any expert assessment to assist me in discerning where Blade ’ s best interests lie. [ 9 ] Indeed it is troubling that this application was made in morning chambers. Counsel practising family law in this Court are well aware that it is generally not considered appropriate to bring such an application in morning chambers. Usually a special application is considered appropriate.

No doubt the reason counsel brought this application in morning chambers was the hope that a decision could be made quickly so if Blade were to move he would not need to start the new semester in Ontario. To state that reason is to reveal its inadequacy. A decision of the level of importance of the one I am asked to make should not be made in a rush. [ 10 ] At the hearing of this application I questioned whether it was properly brought in Alberta at all and asked for further submissions on that point. Counsel and Mr. Lucas provided those submissions. I received Mr. Lucas ’ submission yesterday.

Having regard to my assessment of the merits of the application, I do not think it is necessary for me to decide the point. [ 11 ] The materials do not satisfy me that it is in Blade ’ s best interests for him to move to Alberta in the middle of the Alberta school term. In my view, his immediate best interest is served by his finishing the school year in Ontario. His immediate best interest is also served, in my view, by giving Mr.

Lucas, his new partner, Cole, and Blade an opportunity to work together to address and eliminate the frictions that have developed in their home. [ 12 ] I therefore dismiss the application.

[ 13 ] I expressly do not decide whether any future application of the same nature should be determined in Alberta or whether such an application if brought in Alberta should be transferred to Ontario, the jurisdiction to which Blade clearly has a much closer connection. I should not be interpreted as having made any determination on that point. [ 14 ] Mr. Lucas also raised the concern that the parties written separation agreement requires them to attempt mediation before coming to Court. The materials before me establish that Ms.

MacDermaid made appropriate efforts in that regard in relation to the application which I am dismissing. Heard on the 24 th day of January 2012. Dated at the City of Edmonton, Alberta this 1 st day of February 2012. Brian R. Burrows J.C.Q.B.A. Appearances: Patricia Gay for the Plaintiff Mr. Lucas was unrepresented