Mason v. Mason, 2013 ABQB 56

Court of Queen ’ s Bench of Alberta Citation: Mason v. Mason, 2013 ABQB 56 Date: 20130122 Docket: 4803 145383 Registry: Edmonton Between: Orieta Mason Applicant - and - Daniel Robert Mason Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In this special chambers hearing, Mr. Mason asks the court to declare his former wife to be in contempt of the court ’ s July 2010 order giving him alternate week-end access with this daughter. He also asks the court to order that the child ’ s mother, who now lives in Calgary with the child, to provide access to him in Edmonton and that summer access be added to the week-end access set out in the 2010 order. [ 2 ] In a cross-application, filed several months after Mr. Mason brought his application, Ms. Mason asks for relief including: the transfer of the proceedings to Calgary where she and the child of the marriage now live; an order varying the previous court order by

imposing pre-conditions on the father ’ s access to his daughter, and by limiting the father ’ s access to supervised access; and, finally, by changing the location of the court-ordered access from Edmonton to Calgary. [ 3 ] The father ’ s application for contempt is directed to be tried: because the evidence the parties presented at this hearing concerning the father ’ s consent to the removal of the child to Calgary is contradictory, the issue cannot be settled in a chambers application.

The father will have carriage of the contempt trial; he should prepare, file and serve pleadings relating to that specific issue and the parties will, thereafter, be bound by the Rules of Court relating to preparation for trials, including the payment of a trial fee and the prima facie requirement for ADR. [ 4 ] The father ’ s application for increased access is denied: Mr. Mason has not presented any evidence of a material change of access since July 2010 that would justify a variation of July 2010 order of the court. However, should Mr.

Mason wish to pursue a claim for additional parenting time, the trial of that issue could be joined with the father ’ s pleadings for contempt and tried at the same time as the contempt issue. [ 5 ] The father ’ s application to enforce the parenting regime established in the court order of July 2010 is allowed, in part: because of the lengthy period in which the father did not exercise access to his relatively young daughter, it is not in the child ’ s best interests that the parenting regime previously ordered should be immediately resumed.

Rather, increasing amounts of access will be staged over a period of time to allow the child to become comfortable in her father ’ s care. [ 6 ] The mother ’ s parenting applications are denied: she has failed to establish any material change of circumstance since the court last dealt with parenting in July, 2010. [ 7 ] The mother ’ s application for a transfer of the proceedings to Calgary is granted. By analogy to the principles found in

Article 12 of the Hague Convention as adopted in Alberta by the International Child Abduction Act , since the child is now settled in Calgary, the proceedings should now be moved there. 1. Background [ 8 ] The parties, who separated in 2008 and divorced in September, 2010, have one child who was born in late 2006. On July 20, 2010, this court made an order for corollary relief which granted the parties joint custody of their daughter, with the mother having primary care of the child and sole decision-making power in relation to the child ’ s health, education and religion.

The father was granted access every other weekend from Friday to Sunday, provided he gave no less than 24 hours ’ notice to the mother of his intention to exercise access. The order required the father to be sober when he exercised access and required him to have the appropriate child restraint system in his vehicle.

The order required the mother to give to the father no less than 30 days ’ notice of any plan to take the child on vacation outside Canada, and to provide the father with information about the dates she and the child were returning to Canada. [ 9 ] In July, 2011, the mother and the child relocated to Calgary where the mother has remarried and is awaiting a second child. Although the mother states that she provided telephone advice to the father of her intention to relocate, and that she took his failure to object as his consent to the move, she does not state when that telephone advice was provided.

Oddly, the mother does provide copies of correspondence she directed to the father in 2011 to tell him that she was taking their daughter to California for 8 days, but she apparently did not notify the father in writing that she was taking the child to Calgary permanently.

The father disputes that he was told in advance that the child would be moved to Calgary and strenuously disputes that he consented to the child leaving Edmonton. [ 10 ] There is also a dispute between the parties concerning the amount of access which the father exercised after July 20, 2010, although it is agreed that he did exercise some access. [ 11 ] The mother acknowledges that, since 2008, she has not provided the father with information about where she and their daughter live, although she states that her email and cell phone particulars have remained constant.

[ 12 ] The father states that his contact information has remained constant throughout. [ 13 ] Evidence has been filed of the father ’ s intemperate communications with the mother and the mother ’ s parents in 2008 and of the father ’ s recent “ Eat shit ” communication to the mother ’ s current lawyer. [ 14 ] On February 22, 2012, the father sent an email to the mother asking for access according to the 2010 order. The extensive extracts from the Family Law Act which are included in the email suggest that the father may have had some legal advice in preparing this email.

On February 23, 2012, the mother responded to the father, also by email, stating that she had not been denying access, but rather that he had not attempted to exercise access.

Moreover, she set out many concerns relating to the father ’ s exercise of access and concluded her email with these comments: I am seriously concerned about my daughter ’ s safety and emotional state when she is under your care and as a mother I will do everything in my power to protect her from anyone that will affect her future, including you. [ 15 ] Although it is not reflected in any document, the father says that he took the February 23, 2012 communication from the mother as a refusal to comply with the 2010 order, and he engaged legal assistance to obtain access; however, apparently as a result of personal commitments, Mr.

Mason ’ s lawyer was not able to bring the application that is now before the court prior to September 19, 2012. Ms. Mason brought a counter-application on December 6, 2012. 2. Contempt of court [ 16 ] The father asks the court to declare the mother in contempt of the court order of July 20, 2010 “ by refusing or neglecting to facilitate the Applicant ’ s access to the child of the marriage ” . In support of his application, the father merely swears that, in mid-2011, Ms. Mason moved to Calgary without advising him and without obtaining his consent.

It is true, of course, that it is difficult to prove a negative; nevertheless, Mr. Mason does not provide any evidence that he attempted to exercise the access that was set out in the July 20, 2010 order but was prevented from doing so by Ms. Mason. (I pause to add, parenthetically, that much of Mr. Mason ’ s affidavit contains argument, rather than facts.) [ 17 ] For her part, Ms. Mason swears that, at the beginning of June 2011, she told Mr.

Mason by telephone that she was moving to Calgary and that he did not voice any objection, in person, in writing or by email to that relocation. [ 18 ] Special chambers is like morning chambers at least to the extent that if there is a contradiction in the evidence presented which does not allow the chambers judge to come to a factual conclusion on a contested issue, the contested issue will have to be tried. That is the situation which has arisen here. [ 19 ] Mr. Mason, who is the defendant in the original matrimonial action, will have carriage of the contempt proceedings.

He will have to prepare, file and serve pleadings relating to that issue and, thereafter, the conduct of the proceedings will proceed according to the Rules of Court, including the rule relating to the payment of a trial fee and the rule relating to mandatory ADR. 3. Increasing access to include summer access [ 20 ] Mr. Mason asks for a variation of the July 20, 2010 order by increasing his access to allow him two, non-contiguous, weeks of summer access. However, Mr. Mason has not presented any evidence of a material change of circumstance from the July 20, 2010 order. Indeed, much to the contrary, even Mr.

Mason ’ s material indicates that he has not seen his daughter since June 2011. [ 21 ] If Mr. Mason wants a variation of the existing access order to increase his parenting time, he can add that request to any pleading he chooses to initiate with respect to contempt; should he choose not to pursue the contempt issue, he should issue a new pleading relating to increased access. As indicated above, once any such pleading is filed and served, the parties ’ preparation for trial will be bound by the Rules of Court.

4. Producing child in Edmonton for access [ 22 ] Mr. Mason asks the court to order that Ms. Mason produce the child in Edmonton for access. This request is allowed, in part: given the long time that has elapsed from the father ’ s last face to face contact with his daughter, it is in the daughter ’ s best interests to have a progressive reintroduction to her father so that she can feel comfortable in his care. [ 23 ] For a period covering 4 Saturdays, beginning February 2, 2013, Ms. Mason will produce the parties ’ daughter in Edmonton for access by the father for increasing periods of time.

On February 2, that access will be between 11:30 a.m. and 2:00 p.m.; on February 9, that access will be between 9:00 a.m. and 2:00 p.m.; on February 16, that access will be between 9:00 a.m. and 5:00 p.m. and on February 23, that access will be between 9:00 a.m. and 7:30 p.m. [ 24 ] Each of the parents will give to the other as much notice as possible, in writing, by email, of any inability to comply with the access regime set out herein.

Indeed, henceforth all communications between the parents will be exclusively by email, in the expectation that the communications will be recorded and will be producible on any future court applications. [ 25 ] Assuming that each of the above-mentioned visits takes place as planned, the parties will then go on to the next step. If one of the Saturdays must be missed because Mr. Mason is not available or the child is ill, the Saturday

schedule will be extended until there have been 4 sequential visits of the type outlined. [ 26 ] The next step will be that, Ms. Mason will produce the parties ’ daughter in Edmonton for access by the father on March 9, 2013 - or on the Saturday to which the original

schedule has been extended - from Saturday at 9:00 a.m. to Sunday at 5:00 p.m. That type of week-end overnight access will go on for a total of 4 alternate week-ends. Assuming that each of those visits takes place as planned, the parties will then go on to the next step. If one of the truncated week-ends must be missed because Mr. Mason is not available or the child is ill, then the truncated alternate week-end access

schedule will be extended until there have been 4 sequential truncated alternate week-end access visits. [ 27 ] The final step will be the resumption of alternate week-end access as set out in the July 2010 order. [ 28 ] Changes can be made to this parenting

schedule by agreement between the parties. Pending agreement between the parties concerning an access exchange location, the mother will deliver the daughter to the father ’ s parents ’ residence. 5. Mother ’ s application for variation of the July 20, 2010 order [ 29 ] Ms. Mason asks the court to vary the July 20, 2010 parenting order by imposing various restrictions on Mr. Mason, including, the obligation to provide a criminal record and limiting access to supervised access. These requests are denied: Ms.

Mason has not established that there has been a material change of circumstance since the July 20, 2010 order. [ 30 ] Most of the evidence contained in Ms. Mason ’ s supporting affidavit deals with matters predating the 2010 court order, including, for example, events which occurred during her pregnancy with the parties ’ daughter and events which occurred at the time of separation in 2008. One of the few statements she makes is that Mr. Mason has not seen his daughter in 18 months; Mr. Mason agrees with that statement and complains about that lack of access. Ms.

Mason suggests that this parenting gap justifies a requirement of “ professional ” supervision for parenting. With respect, I do not agree. As set out above, a material gap in parenting may require some staged re-introduction, but it does not justify the artificiality, stigma and expense of professional supervision. [ 31 ] Another statement made by the mother is that the parties ’ daughter has made “ shocking statements ” about her father ’ s potential use of a gun and that she does not want her father to know the way to Calgary.

Given the daughter ’ s current age, and the age at which she last saw her father, and the age at which she last regularly saw her father (which according to the mother ’ s evidence on this

application was 2008 when the child was approximately 2 years old) it seems unlikely that any views which the child has about her father were acquired while the child was in the father ’ s presence. The mother ’ s evidence on this issue is therefore insufficient to justify a variation of the July 2010 order which presumably reflected the parenting situation as of that date. 6. Mother ’ s request to move the proceedings to Calgary [ 32 ] Ms. Mason asks the court to move the proceedings to Calgary.

The father objects; he says that granting this request would reward the mother for having failed to comply with the July 2010 order. By analogy to the principles set out in the Hague Convention where children are not typically returned to their original jurisdiction if more than a year has passed since their departure from the original jurisdiction and they are settled in their new environment, Ms. Mason ’ s request is allowed. [ 33 ] By passing the International Child Abduction Act , R.S.A. 2000, c.

I-4, Alberta has adopted the Convention on the Civil Aspects of International Child Abduction, commonly referred to as the Hague Convention.

Article 12 of the Convention reads as follows:

Article 12 Where a child has been wrongfully removed or retained in terms of

Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. [ 34 ] It is worth emphasizing that the return provision in the Convention applies where a child has been wrongfully removed from one jurisdiction, whereas the situation here is that there has not yet been any determination of whether the child was wrongfully removed from Edmonton.

But, even where a child has been wrongfully removed from a jurisdiction, the child will only be ordered to be returned to the original jurisdiction if less than one year has elapsed from the date of the wrongful removal or, if more than one year has elapsed, the child has not settled in its new environment. This demonstrates that the focus of the Convention is firmly on the best interests of the child, not on the wrongdoing of the parent who has wrongfully removed the child from the original jurisdiction. That principle applies by analogy here. Mr.

Mason ’ s daughter has now been resident in Calgary for over a year; she is settled in that city. Even if a court concludes that Ms. Mason wrongfully removed the child from Edmonton, it is appropriate that, henceforth, proceedings should be conducted in Calgary, where the child is now settled. The issue of whether the mother acted wrongfully in moving the child to Calgary will be dealt with separately and, if the mother did act wrongfully, a court will be able to craft some suitable sanction for the wrongful behaviour. 7.

Costs [ 35 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 17 th day of January, 2013. Dated at the City of Edmonton, Alberta this 22 nd day of January, 2013.

J.B. Veit J.C.Q.B.A. Appearances: Justin Sidhu, Moustarah & Company for Mr. Mason Waldemar A. Igras, RCIM LLP for Ms. Mason