CT v MT, 2016 ABQB 556

Court of Queen’s Bench of Alberta Citation: CT v MT, 2016 ABQB 556 Date: 20161004 Docket: 4803 135879 Registry: Edmonton Between: CT Applicant - and - MT Respondent Corrected judgment: A corrigendum was issued on October 6, 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 Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This matter came before me in afternoon chambers on September 23, 2016.

CT seeks an order requiring MT to return their daughter JT to her care and custody in Drayton Valley, Alberta. MT opposes the application. [ 2 ] The Divorce and Corollary Relief order dated August 10, 2010 gives CT primary residential care of JT. MT had specified generous access to JT. In April, 2016, MT came to Drayton Valley, apparently at JT’s request, and took her with him to his home in Spruce Grove, Alberta. JT was registered in school in Spruce Grove. [ 3 ] MT brought an application to change custody of JT returnable April 28, 2016.

On that date, the judge presiding in Family Chambers ordered MT to return JT to CT’s care.

[ 4 ] MT declined or refused to do so, and CT brought an application returnable May 11, 2016 seeking a further order that MT return JT to her mother and other relief. [ 5 ] That application was heard on May 11.

Ackerl J ordered that the child be returned to the mother’s residence by May 11, 2016 and ordered costs against MT on a solicitor and client basis. [ 6 ] On June 2, 2016, Ross J suspended Ackerl J’s order of May 11, 2016, pending conclusion of a Children’s Services investigation. [ 7 ] Apparently, following the May 11 order, MT and JT made a complaint to Child and Family Services concerning CT and conditions in her home. [ 8 ] Ross J also ordered: The issue of the residence of JT, born on January 4, 2002, shall be determined either by consent or by further court application following the conclusion of the children’s services investigation. [ 9 ] On August 30, 2016, CT filed an application returnable September 9, 2016 seeking the identical relief sought in her May application. [ 10 ] MT filed an affidavit opposing the relief sought by CT.

JT swore an affidavit in opposition to her being ordered returned to her mother, providing her reasons for wanting to stay with her father. [ 11 ] The parties appeared before Goss J on September 9, 2016. She ordered that Child and Family Services provide an update in relation to the status of the investigation by September 21, 2016.

CT’s application for the return of JT was adjourned to September 23. [ 12 ] At the application on September 23, 2016, it was represented to me that Child and Family Services investigated the matter and have now closed their file as the allegations were unsubstantiated. [ 13 ] CT sought the immediate return of JT; MT opposed this based on the information he has received from JT. Analysis [ 14 ] I am troubled by the unilateral action by MT in removing JT from Drayton Valley surreptitiously.

I am troubled by his apparent refusal to comply with the order of April 28, 2016 requiring that he return JT to Drayton Valley. I am also troubled by the involvement of JT in this matter, as evidenced by the affidavit she swore on September 9, 2016. That affidavit was obviously prepared by an adult and is obviously not in her wording. Someone prepared this affidavit for her, although appended is a handwritten memorandum signed “JT.” MT’s involvement of fourteen-year-old JT in these proceedings is evidence of poor parenting. [ 15 ] I am troubled that JT appears to be alienated from her mother.

I have no idea whether the allegations she makes concerning her mother and her mother’s boyfriend are true. CT has not responded to the affidavit from JT, but in her affidavit sworn August 29 states: 5. I believe MT has been using his influence on my daughter to give false information to Child Family Services. MT has a history of making false allegations against me. For example, I was investigated by the Breton RCMP in approximately 2006 in reference to an allegation involving murder, an allegation made by MT, which was completely false. Additionally, MT and I have another child together, a 17 year old son, S.

I have tried to contact S’s school for information regarding him, and have tried to visit him at school. I have been refused access to information, and the school called the police when I went to visit my son because MT had advised them that I was not to see my son or have access to any information, contrary to my parental rights as previously agreed and ordered by the court. Nothing arose out of this incident. These are only two allegations concerning false information provided by MT. 6. I want my daughter returned home.

I believe she is being childish, and she is upset with me because I have been acting as a proper parent should. She is a teenage girl, and we do not always see eye-to-eye. We have had arguments about her spending money inappropriately, not following through on requests, and ignoring household rules. I believe that MT has taken advantage of this to convince our daughter to come and stay with him. In doing this, he told me nothing and allowed no contact with my daughter. I have access to no information, and have no idea what is going on with her.

I have offered to attend counselling, but this has been refused. [ 16 ] Child and Family Services have declined to intervene, which suggests that at a minimum some of JT’s complaints about her mother and her mother’s household have not been objectively verified. [ 17 ] All of this being said, JT is nearly fifteen years old. She believes that she has a right to decide where she should live. She has made those wishes clear. How much those wishes have been influenced by her father is unclear.

It is also unclear how mature JT is and how much weight should be given to her apparent wishes. [ 18 ] Fourteen- to fifteen-year-old children do not have a right to decide where they will live. At that age, they may have a right to have their wishes made known to decision-makers, but neither her parents nor the courts are bound by those wishes. Until she reaches the age of majority, decisions as to her well-being are at least officially made by her guardians or the courts. [ 19 ] Here, serious allegations have been made by her against her mother and of her treatment in her mother’s home.

I do not accept any such allegations as being true, as they have been put forward under questionable circumstances. [ 20 ] Nevertheless, it is important that her wishes be properly put before the Court. The parents are not wealthy, and directing a Practice Note 7 intervention is a costly process. From the information on file, MT earned $70,000 in 2008; CT earned $14,150 that year.

I do not know if those incomes have changed significantly since the parties divorced. Nevertheless, directing the parties to share the cost of a Practice Note 7 intervention may be a hardship. [ 21 ] An alternative to the involvement of a parenting expert is to appoint counsel for the child through Legal Aid. That will require both parents to be ultimately responsible to Legal Aid for the costs, but may be less of an immediate hardship. Accordingly, I direct that counsel for JT be appointed through Legal Aid.

That will require MT to arrange for JT to be interviewed by Legal Aid in either Spruce Grove or Edmonton and to sign the necessary papers. CT will have to arrange with Legal Aid to sign the necessary documents. [ 22 ] Mr. Tralenberg, as counsel for CT, should prepare the necessary “standard form” order for the appointment of a Legal Aid lawyer for JT. Rule 9.4(2)(

c) is invoked such that MT’s approval of the form is not necessary. At this stage, counsel is to act in the role of providing a “voice of the child” report and in the first instance should act in the role of friend of the Court, rather than as counsel to JT. That role may change, depending on counsel’s assessment of JT’s maturity and competence to give instructions. Counsel should provide a report to the Court as soon as reasonably possible. [ 23 ] I do not see this process as rewarding MT’s behaviour in this matter.

He appears to be acting in what he believes to be JT’s interests, or at least on her instructions. Ordinarily, once the Child and Family Services report declined to identify concerns about CT’s residence, the orders of April 28 and May 11 would be reinstated. [ 24 ] Ross J’s order of June 2, 2016 appears to require a fresh look at custody once the report was received.

The practical realities of this matter are that until JT’s views are received, and the Court has more information on the difficulties between her and her mother, JT will likely act in a manner that will thwart any return to her mother’s care in Drayton Valley. At the present time, she appears to be properly cared for in her father’s care (subject to concerns about alienation from her mother), and it seems that it is in her best interests to continue this investigation while she is in a place she is comfortable with, and going to school.

I note that her brother also lives with MT so there are additional family supports at her father’s home. Heard on the 23 rd day of September, 2016. Dated at the City of Edmonton, Alberta, this 3 rd day of October, 2016. Robert A. Graesser J.C.Q.B.A. Appearances: Brandon Tralenberg Brandon Tralenberg Professional Corporation for the Applicant MT, Respondent on his own behalf

_______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Throughout this entire decision the parties’ names have been substituted with initials.