Cazabonne v Turney-Seidenhofer, 2016 ABQB 453

Court of Queen’s Bench of Alberta Citation: Cazabonne v Turney-Seidenhofer, 2016 ABQB 453 Date: 20160817 Docket: FL01 24753 Registry: Calgary Between: Olivier Cazabonne Applicant - and - Cornelia Turney-Seidenhofer Respondent Corrected judgment: A corrigendum was issued on August 17, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] Mr.

Cazabonne seeks an order confirming that Cornelia Turney-Seidenhofer has failed to comply with the terms of a previous order granted in this matter and therefore, by the terms of that order, is contempt of court. He seeks a Rule 10.51 order requiring that a peace officer take Ms. Turney-Seidenhofer into custody and bring her before the Court to show cause why she should not be declared to be in civil contempt of Court. [ 2 ] The parties are the parents of a 9 year old boy. They are not married. The Applicant is French. The Respondent is German. Their son was born in Germany in March, 2007.

[ 3 ] Mr. Cazabonne came to Canada about 6 years ago. He lives in Banff. Ms. Turney-Seidenhofer remained in Germany. She and her son visited Mr. Cazabonne in Canada approximately 4 times in the 3 years following his move to Canada. Then Mr. Cazabonne lost contact with his son and Ms. Turney-Seidenhofer for about a year. Then about 2 years ago Ms. Turney-Seidenhofer and the child moved to Canada to live with Mr. Cazabonne. Ms. Turney-Seidenhofer is enrolled in a Ph.D program at the University of Calgary. [ 4 ] Mr. Cazabonne deposes that he and Ms. Turney-Seidenhofer separated in the spring of 2015.

Since the separation their son has resided primarily with Ms. Turney-Seidenhofer in Calgary and Mr. Cazabonne has had parenting time with his son once a week in Calgary. The child was with Mr. Cazabonne for a month in the summer of 2015. [ 5 ] Prior to the commencement of these proceedings there were no court orders governing guardianship, parenting or access in relation to the parties’ son. [ 6 ] In April 2016, Ms. Turney-Seidenhofer advised Mr. Cazabonne that she would no longer permit him to have parenting time with their son. Mr. Cazabonne also stopped getting information from the child’s school.

On June 16, 2016 Ms. Turney-Seidenhofer advised Mr. Cazabonne that she would be taking the child to Germany when the school year finished on June 30, 2016. Mr. Cazabonne was not given any information concerning their travel itinerary or as to the date they would return to Calgary. [ 7 ] Neither party is a Canadian citizen. Mr. Cazabonne deposes that he is not named on the child’s German birth certificate. [ 8 ] On June 29, 2016 Mr. Cazabonne was granted an “Ex-Parte Interim Order” in this action. It provided that: • the child’s habitual residence shall be in Alberta, Canada; • Mr.

Cazabonne would have interim primary care of the child; • Ms. Turney-Seidenhofer would have interim supervised visitation with the child; • neither party would remove the child from Alberta; • the child would immediately be “returned” to Mr. Cazabonne’s residence. The order included police enforcement provisions. It was to be reviewed in Court on July 11, 2016. [ 9 ] On July 11, 2016 Ms. Turney-Seidenhofer appeared by counsel at the review application. An affidavit sworn by Ms. Turney-Seidenhofer in Germany was filed at that time.

In it she refers to her current presence in Germany as a vacation but does not expressly state that she intends to return to Alberta. On July 11, the Court appears to have wanted greater certainty on that point and ordered that she forthwith either provide copies of the return airline tickets or return the child to Alberta. The order further provided that she would be held in contempt if she did not comply. [ 10 ] The July 11 order also changed the interim parenting arrangement that had been ordered on June 29. On an interim basis, Ms. Turney-Seidenhofer would continue as primary caregiver. Mr.

Cazabonne would have weekend access as agreed between the parties. [ 11 ] The July 11 order was to be reviewed July 14. On that date, Ms. Turney-Seidenhofer had not provided copies of the return airline tickets or returned the child to Alberta. The Court granted an “order of contempt” and a warrant for the arrest of Ms. Turney- Seidenhofer. The Clerk’s notes of the order (which has not been reduced to a formal order) stated: Will stay the order for 30 days. If she does not return from Germany with the child within 30 days of today, the order will take full force and effect.

Costs granted in favour of the applicant in the amount of $1000.00. Adjourned to Aug. 15, 2016. [ 12 ] The matter came before me on August 15. Counsel for both parties appeared. There is no issue that Ms. Turney-Seidenhofer has not returned the child to Alberta. Mr. Cazabonne sought the order indicated above in paragraph 1. [ 13 ] In my view the order Mr. Cazabonne seeks (that Ms. Turney-Seidenhofer is in contempt and that she be arrested) was already granted on July 14. The Court stayed execution of that order for 30 days on conditions. The conditions have not been satisfied.

The stay is therefore no longer effect. [ 14 ] But for the order I make below, the July 14 order of contempt and for a warrant for Ms. Turney-Seidenhofer’s arrest would now be in full force and effect. [ 15 ] However, I am concerned that allowing the July 14 order to have full force and effect will probably prevent the practical resolution of the dispute between these parties. That she is subject to arrest on return to Alberta will likely discourage Ms.

Turney- Seidenhofer from returning. [ 16 ] The unenforceability of an arrest and contempt order outside the jurisdiction is precisely the reason for the existence of International Child Abduction Act, R.S.A. 2000, c. I-4 which adopts the Hague Convention in Alberta. In my view, if Ms. Turney- Seidenhofer does not return the child to Alberta for school in September, Mr. Cazabonne’s remedy, if he has one, is under that Act.

The orders granted so far were not sought or granted under that Act. [ 17 ] In my view, a more practical approach is to continue the stay of the July 14 order until September 6, 2016 which is the first day of school in Calgary. If Ms. Turney-Seidenhofer has not returned the child to Alberta by that date, the stay will be at an end and the July 14 order, for what it is worth, will be in full force and effect. By that time Mr. Cazabonne will have had time to determine whether, should Ms.

Turney-Seidenhofer not return by then, it would be appropriate for him to bring a Hague Convention application. [ 18 ] I, therefore, order that the stay of the July 14 order be continued until September 6, 2016 and that if Ms. Turney-Seidenhofer has not returned the child to Alberta by that date, the July 14 order will be in full force and effect. I adjourn this matter to September 6,

2016 at which point Mr. Cazabonne can provide evidence that the child has not returned to Alberta, if that be the case, and, if he is so advised, bring an application under

Article 8 of the Hague Convention. Heard on the 15 th day of August, 2016. Dated at the City of Calgary, Alberta this 17 th day of August, 2016. B.R. Burrows J.C.Q.B.A. Appearances: Aida A. Rafie for the Applicant Megan P. Zybutz for the Respondent _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice B.R. Burrows _______________________________________________________ Typographical error in citation has been changed