Walsh v. Binet, 2013 ABQB 686

Court of Queen ’ s Bench of Alberta Citation: Walsh v. Binet, 2013 ABQB 686 Date: 20131120 Docket: 4801 132108 Registry: Calgary Between: Deborah Lianne Walsh Applicant - and - John William Binet Respondent _ ________________________________________ ______________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _________________________________________ ______________

Summary [ 1 ] On the undefended divorce list, Ms. Walsh asks for a divorce judgment which deprives the husband/father of guardianship of his children, and relieves him of the obligation to pay child support. She relies on the father’s consent to this form of judgment and on the assertion that removing the father from the children’s lives in this way is in the best interests of the children since this will remove a source of conflict. [ 2 ] The application is denied. This application must be dealt with in special chambers where there will be sufficient time to inform the court of all the evidence relevant to this unusual request. [ 3 ] The court’s specific concern arises under s. 11(1) (

b) of the Divorce Act ; that sub-section requires the court to assure itself that adequate arrangements have been made for the financial support of the children. The court has no current financial information

about the father and no current information about the financial needs of the children; it is therefore unable to decide if the mother’s decision that the children do not need their father’s financial support is reasonable. A parent’s consent is not the equivalent of a court satisfying itself. [ 4 ] Moreover, the court observes that from the evidence available on the file, the children do not need to be protected from the father’s intransigeance.

If this is, indeed, a high conflict situation, the mother appears to be as responsible for the conflict as the father. [ 5 ] Finally, the court observes that the Divorce Act does not give the court explicit authority to deal with guardianship, a status that arises automatically from biological parenthood while married.

This court does have the inherent authority to deprive a parent of guardianship in addition to custody, but, because the incidents of guardianship are so much more extensive than the incidents of custody, the mother will have to satisfy the court concerning the reasons for which this father should be deprived of those incidents as well as of the incidents of custody. 1.

Background [ 6 ] The parties are the married parents of two young children. [ 7 ] No current information has been provided with respect to the children’s prospects, including, for example, how the children appear to be doing academically and whether, from that performance and from the parents’ modelling, it is likely that these children will be attending post-secondary educational institutions. [ 8 ] The parents describe the situation here as one of high conflict. There have indeed been many court orders, including consent orders, involving the parties.

Among other matters, the mother obtained a without notice emergency protective order which was not confirmed by this court. Without the consent of the father or a court order, the mother, with the then one child of the marriage, moved from Edmonton where the family had been residing to Calgary. In 2011, a judge of this court ordered a bilateral parenting assessment conducted by a registered psychologist who came to the following conclusions: 3. What parenting regimes does the assessment support? The results of the current assessment support: 1. Extended contact for the children with Mr.

Binet, including overnights and shared holiday time. To maintain high-quality relationships with their children, parents need to have sufficient and regular interactions with them. Arrangements that ensure the involvement of both parents in important aspects of their children's everyday lives and routines, including bedtime and waking rituals, are likely to keep non-residential parents playing psychologically important and central roles in the lives of their children. 2. One suggestion for this family would be for Mr. Binet to parent the children once a month from Thursday evening until Sunday late afternoon.

This arrangement would be best implemented over a period of time. I would suggest Mr. Binet parent the children on two occasions for one overnight while he remains in Calgary. After this, he could begin to parent in his home from Friday evening until Sunday late afternoon for perhaps four months before an increase to Thursday evenings until Sunday late afternoons. Once the children attend full-time school, the Thursday to Sunday

schedule will likely need to be adjusted so as not to interfere significantly with their school commitments. It would seem appropriate for the parents to share the driving associated with this arrangement. 3. For holidays, because the children are young, I would recommend a limit of five consecutive overnights at a time for them to be away from Ms. Walsh. A 5 day overnight separation from Ms. Walsh should be implemented only after the children have been staying overnight with Mr. Binet in his home as outlined in recommendation number 2. A parenting plan ought to be considered a living document.

As they get older, the children will be able to spend more time away from their primary home. I would anticipate by the time the children are 6 or 7, they will easily adjust to separations of a week. In time, I would expect the parents could share the summer holidays 50·50 if not 60·40 in favor of Mr. Binet. 4. The parent not caring for the children at any given time should be afforded communication with them via telephone or other electronic means such as Skype or e-mail. (See recommendation 6-iv). 5.

The results of this assessment support joint decision making on major medical, mental health care, and educational issues. Mr. Binet should have access to all information on the children's education, medical care and recreational pursuits. 6. Given the history of prolonged and hostile conflict between them, these parents will require the continued assistance of a parenting coordinator who will need to:

i. Assist the parents with communication and to disengage from conflict. ii. Help the parents comply with the parenting plan. iii. Provide an available, effective, decision-making, mediation resource who is able to make temporary and minor adjustments to the plan if the parents reach an impasse. iv. Provide written recommendations to the parties and the reason for those recommendations when an impasse is reached and the proposed resolution is not temporary and minor in nature. The parents and counsel may consider bringing an application to court to implement the recommendations. v.

Provide direction with regard to the continued development of the plan as the children grow older. vi. Provide input and direction in the event a parent needs help to solve a problem with regard to communication with the children via phone or Skype etc. 7. It is likely a police enforcement clause will increase compliance with the parenting plan. 8. Given their history of conflict, face-to-face transfers between the parents should be avoided whenever possible.

This is likely to be more feasible once the children are in school where transfers might take place. [ 9 ] The mother states that she earns approximately $130,000.00 gross per year and she does not need any financial support from the children’s father. There is no information about the father’s current financial circumstances. [ 10 ] The mother’s 2011 application for a desk divorce having essentially the same terms which she now requests was returned for additional information, including additional financial information. That administrative request was never complied with.

In 2013, the mother renewed her application for a divorce judgment which ordered that the father no longer be a guardian of his children and that he no longer pay child support; that application was rejected and the matter was placed on the Calgary undefended divorce list so that the mother could have a hearing in which she could further explain the basis for her request. [ 11 ] The mother states that, since the father has had only minimal contact with his children and has not been paying child support, the contact with the father has been much less contentious and that is in the children’s best interests. 2.

Are the children’s financial interests reasonably served by removing any financial contribution to their well-being from the father? [ 12 ] Section 11(1) (

b) of the Divorce Act imposes on a court the duty of satisfying itself that reasonable arrangements have been made by divorcing parents for the support of the children of the marriage, having regard to the applicable guidelines, and, if not satisfied, to stay the granting of the divorce until such arrangements have been made. The reference in the sub-paragraph to “guidelines” suggests that the kind of support which is the subject of this legislative concern is financial support rather than a more encompassing notion of support. The obligation imposed by Parliament in the

section is an obligation on the court: in other words, “mere” consent by the divorcing parties to ignore the child support guidelines does not guarantee that the

section will be satisfied. [ 13 ] Here, there is no information about what the children might foreseeably need in the future; therefore, not only is it impossible to say whether the mother’s income alone will be able to satisfy those needs but it is impossible to usefully articulate what the current circumstances are so that any future applications to bring the father back into the picture based on a material change of circumstance can be adequately dealt with. [ 14 ] Moreover, without any information about the father’s current financial circumstances, it is impossible to say what opportunities these children might be deprived of as a result of cutting them off from support by the father. [ 15 ] Finally, there is the social issue of whether it is not generally in a child’s best interest to have a parent contribute financially to their child’s development because that financial involvement is likely to lead to a broader, and continued, involvement in the child’s life.

It appears likely that there were disputes between these parents about money matters and child support generally. However, is there not a danger that making an order that a parent does not have to pay child support will send an unfortunate message, to wit – a bullying or unreasonable parent is rewarded by removing their obligation for child support for their bad behaviour. 3. Is the proposed order in the children’s best interests? [ 16 ] The 2011 parenting assessment does not support the mother’s argument that the conflict between the parents is harming the children.

The mother would have the opportunity at a special chambers hearing of presenting updated evidence on this issue. 4. Does this court have the jurisdiction to remove the father as a guardian of these children? [ 17 ] There is no explicit jurisdiction in the court under the Divorce Act to abrogate Mr. Binet’s guardianship of his biological children.

Nevertheless, it is clear that the court has the necessary inherent jurisdiction to strip a parent of guardianship; however, no basis for doing so has yet been established in the circumstances here. [ 18 ] In V.L. our Court of Appeal provided us with a helpful overview of the difference between guardianship and custody. For ease of reference, I reproduce some of their comments:

48 . . . .Instead,

section 54 of the DRA adopts a rebuttable presumption of continuing joint guardianship following separation ordivorce, unless one of the parents is declared unfit or the court otherwise declares. This implies that guardianship is not dependent uponcustody; absent a finding of unfitness or court declaration to the contrary, a non-custodial parent with or without access, retains certainrights and responsibilities. That premise is inconsistent with the position adopted by the Ontario Court of Appeal in Kruger v. Kruger,supra, and taken by L'Heureux-Dubé in Young v.

Young, supra, both of which endorse the exclusive authority of the parent with solecustody. 49 However, that presumption is consistent with s. 16(10) of the Divorce Act which provides that the court shall promote maximumcontact between the child and the non-custodial parent. It also conforms with the U.N.

Convention on the Rights of the Child (1989)which guarantees children the right to maintain personal relations and direct contact with both parents, and provides that both parentshave common responsibilities for the upbringing and development of their children, unless the exercise of those rights is contrary to thechildren's interests: Rev. 1 (Geneva: Centre for Human Rights, United Nations, 1996), Articles 9 and 18. 50 In this province, some of the statutory rights that might be exercised by a non-custodial guardian include, for example: the right togrant or refuse consent to a change of the child's surname: the Change of Name Act, R.S.A. 1980, c.

C-4, ss. 7, 7.1, 11 & 12; the right tobe notified about protection and adoption proceedings, and to grant or refuse consent to adoption: the Child Welfare Act, S.

A. 1984, c.C-8.1, ss. 56 & 57; the right to appoint a testamentary guardian of the person and estate of the child to act jointly with the survivingparent or with the guardian appointed by the other parent: s. 48 DRA; the right to resume custody of the child in the event of the death ofthe custodial parent: s. 54(2) DRA; the right to consent to medical treatment of the child when the child does not have the capacity toconsent: DRA, s. 47 (refers to parents being joint guardians) and C. (J. S.) et al. v. Wren, 1986 ABCA 249 , [1987] 2 W.W.R.669 (Alta.

C.A.); the right to consent to employ a child under 15 years of age: Employment Standards Code, S.A. 1996, c. E-10.3, s. 65;the right to obtain health care insurance information concerning the child: Alberta Health Care Insurance Act, R.S.A. 1980, c. A-24, s.13(4)(e.1) (as rep. by Health Information Act, S.A. 1999, c. H.-4.8, s. 110) or information concerning diagnostic and treatment servicesprovided to the child: the Hospitals Act, R.S.A. 1980, c.

H-11, s. 40(5)(a.1) (as rep. by Health Information Act, supra, s. 117(2)(e)(ii))(but see Health Information Act, supra, ss. 7 & 104(1)(c)); the right to grant or refuse consent to the marriage of a minor child: theMarriage Act, R.S.A. 1980, c. M-6, s. 18 (but s. 18(2)(

a) suggests otherwise); the right to apply for the sale of a minor's real property:the Minors' Property Act, R.S.A. 1980, c. M-16, s. 3; the right to consent to an application to obtain a motor vehicle operator's permit:Motor Vehicle Administration Act, R.S.A. 1980, c. M-22, s. 11; the right to consent to physical therapy treatment: Physical TherapyProfessions Act Regulations, A.R. 298/85, s. 13(e); the right to notification of the apprehension of a child under the Protection ofChildren Involved in Prostitution Act, S.A., 1998, c.

P-19.3, s. 4; a conditional right to information concerning services provided to orassessments conducted of a child under the Psychology Profession Amendment Regulation, Alta. Reg. 87/2000, s. 8. . . . . 53 In Young v. Young, supra, L'Heureux-Dubé J. considered the term "custody" to be akin to the concept of guardianship,encompassing the full bundle of parental powers.

But at 40-41 she acknowledged that a non-custodial parent retains certain residualrights over the child, including the right to apply to the court for a variation of custody and access terms, the right to contest the child'sadoption, the right to claim guardianship upon the death of the custodial parent and the right to succeed to the child's property. 54 The residual rights referred to in Young v. Young, supra, and prescribed under provincial law, evince an ongoing legal relationshipbetween the child and a non-custodial parent with or without access.

Moreover, the exercise of most of those rights necessarily impliesthe right to be informed of or consulted about, and to participate in significant decisions pertaining to the child's education, health andwelfare. It is reasonable to assume that "significant" decisions would not include day to day decisions while the child is in the care of theother parent, but would include those decisions likely to have long term consequences for the child. 55 The Alberta model is similar to

Article 599 (formerly 647) of the Civil Code of Quebec which provides that both parents retain jointparental authority. The Quebec Code stipulates that parental authority comprises the rights of physical custody, supervision andeducation which is similar to s. 46(

d) of the DRA:

Article 599. 56 In C. (G.) v. V. F.(T.), (SCC), [1987] 2 S.C.R. 244, the Supreme Court considered the effect of the parentalauthority provisions under the Civil Code. The Court held at 267 that an award of custody removes the exercise of custody from the non-custodial parent but not the enjoyment of parental authority. Beetz J., writing for the Court, held at 281-83 that: • a person having parental authority who loses exercise of the right of custody is not deprived of all the attributes of parentalauthority.

Dividing up the exercise of parental authority does not result in the loss by the non-custodial parent of the status of personhaving parental authority.... The person who has the custody has control of the child's outings, recreation and associations. That personmust also, as a consequence of his or her privileged position, make day to day decisions affecting the life of the child. Nevertheless, thenon-custodial parent who is deprived of the physical presence of his or her child most of the time enjoys a right to watch over thedecisions made by the person who has custody ....

The non-custodial parent also has, pursuant to his or her status of person havingparental authority, the right to decide as to the major choices affecting the direction of the child's life [p. 282].... The non-custodial parentcontinues to have a duty to see to the welfare and maintenance of the child [p. 283]. [19] The mother should explain in a special chambers context why, even if it were appropriate to give the mother sole custody andno specified access to the father, it is reasonable to deprive the father of the various non-custodial incidents of guardianship as set outabove.

She should also explain what might constitute a material change of circumstance enabling the court to re-open both custody andchild support issues. 5. Conclusion [20] For the reasons set out above, the mother’s application for a divorce judgment in the format proposed is denied, withoutprejudice to the mother’s right to renew the application at a special chambers hearing.

Heard on the 12 th day of November, 2013. Dated at the City of Calgary, Alberta this 20 th day of November, 2013 . J.B. Veit J.C.Q.B.A. Appearances: Penny L. Pritchett, Jivraj Knight Pritchett for the Applicant