Salehi v Babrak, 2017 ABQB 317

Court of Queen’s Bench of Alberta Citation: Salehi v Babrak, 2017 ABQB 317 Date: 20170509 Docket: 4803 178655 Registry: Edmonton Between: Samiullah Salehi Plaintiff - and - Parwin Babrak Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In this family chambers application, Mr. Salehi’s notice of application seeks shared parenting of the three children of the marriage, a 5 year old, and two other children, one who is nearly 4 and one who is nearly 2. Mr. Salehi recognizes, however, that where the existing Provincial Court consent order gives his client parenting time only for a few hours a week, a special chambers hearing or a trial is required to assess the requested change in parenting regime. He therefore restricts his current application to one for alternate weekend access and mid-week access. [ 2 ] Ms.

Babrak, who acknowledges that she has unilaterally denied her husband access to their children since at least January, 2017, opposes the application to extend the parenting time on the grounds that Mr. Salehi has, consistently, whenever they have an argument, threatened to remove the parties’ oldest child to Afghanistan, the country from which both parents came. She asks for a regime of commercially supervised parenting, without overnight access, but with police enforcement. [ 3 ] Ms.

Babrak also brings a counter-application for retroactive child support. [ 4 ] The father’s application for alternate week-end parenting with some mid-week access is granted, in part. It is obvious from

the mother’s parenting position in the Provincial Court that she has no principled objection to the father having overnight access to the two older children; her position relative to the youngest child was presumably taken because of that child’s young age at the time. [ 5 ] However, in light of the relatively long gap during which the mother has prevented the father’s access to these young children, the children’s re-introduction to their father will have to take place more gradually than requested by the father. [ 6 ] Ms.

Babrak’s counter-application is adjourned sine die ; she neglected to tell the court about the child support proceedings in the Provincial Court. [ 7 ] Mr. Salehi’s application for shared parenting is adjourned sine die . The parties will have to seriously consider whether that application can be dealt with at a special chambers hearing or whether a trial is required. 1. Background [ 8 ] The parties, who are the married parents of three children, a 5 year old who is attending pre-school, a nearly 4 year old and a nearly 2 year old, all girls, separated in either December, 2014 or January, 2015.

On December, 8, 2015, when both parents were represented, they entered into a Provincial Court consent order.

The order provided that the father would have access to his two older children every Monday and Friday from 12:00 p.m. until 3:00 p.m. and with his youngest child from 12:00 p.m. until 1:00 p.m. and that . . all of his parenting time, and exchanges, shall take place at the Millwoods’ Recreation Centre; Transportation shall be shared equally between the parties as the parties are agreed; Further parenting time as mutually agreed upon. [ 9 ] The December 8, 2015 order made minor changes to an earlier order, dated October 19, 2015, with similar access provisions.

Prior to the making of these 2015 orders, the mother had filed a parenting statement indicating that she did not want the father to have any access to the youngest child except in her presence and at the same time that as the father exercised access to the older children. She had proposed that the father have access to his older two children on Mondays from 8:00 a.m.until 5:00 p.m., on Wednesdays from 6:00 p.m. until Thursday at 8:00 a.m., and on Saturdays from 8:00 a.m. until 5:00 p.m.

She had also wanted the father to complete some courses and to have his parenting time suspended if he missed his scheduled parenting time. [ 10 ] In late December, 2016, the mother obtained an Emergency Protection Order, which, as its title implies, is granted without notice to the father; the order prevented the father from having access to his children. Although a confirmation hearing on such orders is, by statute, held as soon as practicable after the order has been granted, the confirmation hearing in this case was delayed until January 27, 2017, presumably to allow Mr.

Salehi to file an affidavit setting out his version of the events which resulted in the granting of the EPO. At the hearing of Mr. Salehi’s parenting application in this court, there was a dispute between the parties about the actions taken in our court on January 27, 2017.

The father contended that the EPO had been vacated because the court did not accept the mother’s allegations; the mother contended that the court had concluded that the allegations of violence were historic, or dated, and did not require emergency treatment. [ 11 ] In order to clarify that dispute on the facts, I told the parties that I would listen to the FTR recording of the January 27, 2017 hearing.

On April 26, I advised the parties that the FTR disclosed that, at the confirmation hearing, the presiding judge concluded the hearing by saying that the “violence” as set out in the materials consisted essentially of name calling – “dog” being particularly offensive; that the EPO may have been improperly granted, and, that it appeared that the mother had obtained the EPO in an attempt to “manipulate” the custody/parenting dispute. The confirmation judge therefore vacated the EPO. [ 12 ] Despite the fact that the EPO was vacated, the mother has continued to deny the father access to the children.

Her then lawyer stated that this position was taken on his advice. [ 13 ] On February 9, 2017, the father brought an application in Provincial Court to decrease his level of child support based on his loss of employment because of what he described as a back injury and a knee injury.

That application was adjourned sine die , by consent. [ 14 ] At the hearing of the father’s application for alternate week-end parenting on April 25, 2017, in recognition of the fact that a court would not have time in a regular chambers application to hear a contested application for shared parenting, the father orally amended his notice of application to ask, at this time, for alternate week-end access and mid-week access rather than shared parenting. [ 15 ] The mother objected to the father’s application on two grounds.

The first objection is that the father had repeatedly orally threatened to remove the parties’ oldest child from the mother’s care and take the child to his family in Afghanistan. Despite the fact that the mother had saved some telephone messages from the father, and has transcripts and translations of them prepared for the EPO hearing, she did not have any such tangible evidence of the oral threats to remove the oldest child. [ 16 ] The court takes judicial notice of the fact that Afghanistan is not a signatory to the Hague Convention.

On the other hand, the parties were married in an arranged marriage, and it is therefore likely that the mother has the means of knowing where the father’s family resides in Kabul. [ 17 ] The second objection is that the mother has always supervised the father’s access to his children.

Indeed, at the hearing, the mother says that, despite the fact that the consent parenting order devised a regime whereby the father was to see all of his children for a few hours at a sports facility and that the parents would share the transportation to and from that facility, in reality, she has never allowed the father to see his children other than in her home under her supervision. [ 18 ] After the court advised the parties of the reasons given by the confirmation judge for vacating the EPO, the mother terminated her lawyer’s services.

2. General parenting principles [ 19 ] In the Divorce Act , Parliament established the principles on which parenting disputes are resolved: s. 16 (10) . . . the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. 3.

Application of general parenting principles to the situation here [ 20 ] It is obvious from the position she took in the Provincial Court proceedings, that the mother has no principled objection to unsupervised, overnight, access by the father of the two older children. [ 21 ] The mother’s objection to the father having unsupervised access with his youngest child may have had to do with the child’s age, given that she was only approximately 6 months’ old at the time.

That child is developmentally much older now. [ 22 ] The mother’s current concern in relation to the removal of the oldest child to Afghanistan is not supported. There is no record of any such threats. Moreover, the children do not have passports.

Although the mother correctly states that some situations have occurred where passports have been obtained for children without the consent of both parents and that children have been taken out of the country without one parent’s consent, a normal parenting regime should not be denied because of a minor statistical possibility. [ 23 ] The mother’s request for commercially supervised parenting is not substantiated. [ 24 ] The mother’s request for a police enforcement order is not substantiated; on the material before this court, it is only the mother who has been in breach of a court parenting order.

Naturally, if the father fails to abide by the parenting regime established in this order, the mother is at liberty to renew her application for a police enforcement clause. [ 25 ] The children are young, and although there is no reason shown on this application why it is not in their best interests to have maximum contact with their father, they have not seen their father for a lengthy period of time; it is therefore necessary to re-introduce the children to their father. At the present time, neither of the parents is employed. The court establishes the

schedule which follows. However, if the mother becomes represented, and the court’s

schedule could be improved by reference to changes in the parents’

schedule and to the older child’s school schedule, I would be prepared, on two days’ notice, to hear submissions on changes to the schedule. - On Saturday, May 13, 2017, the father will pick up all three of his children from the mother’s home at 9:00 a.m. and return them to her home at 2:00 p.m. - On Tuesday, May 16, 2017, the father will pick up all three children from the mother’s home at 9:00 a.m. and return them to her home at 2:00 p.m. - On Thursday, May 18, 2017, the father will pick up all three children from the mother’s home at 9:00 a.m. and return them to her home at 6:00 p.m. - On Saturday, May 20, 2017, the mother will deliver all three children to the location where the father will be exercising access at 9:00 a.m. and the father will return the children to the mother’s home at 6:00 p.m. - On Wednesday, May 24, 2017, the father will pick up all three children at the mother’s home at 3::00 p.m. and will return them to her home at 6:00 p.m. - On Saturday, May 27, 2017, the father will pick up all three children at the mother’s home at 1:00 p.m. and will return them to the mother’s home at 1:00 p.m. on Sunday May 28, 2017. - On Wednesday, May 31, 2017, the mother will deliver all three children to the location where the father will be exercising access at 3:00 p.m. and the father will return them to the mother’s home at 6:00 p.m. - On Wednesday, June 7, 2017, the mother will deliver all three children to the location where the father will be exercising access at 3:00 p.m. and the father will return them to the mother’s home at 6:00 p.m. - On Saturday, June 10, 2017, the father will pick up all children at the mother’s home at 9:00 a.m.; the mother will pick them up from the location where access is being exercised at 5:00 p.m. on Sunday June 11, 2017. - On Thursday, June 15, 2017, the father will pick up all three children at the mother’s home at 3:00 p.m. and the mother will pick up all the children at the location where the father is exercising access at 6:00 p.m. - On Friday, June 23, 2017, the father will pick up all three children at the mother home at 6:00 p.m. and the mother will pick up all three children from the location where the father is exercising access at 5:00 p.m. on Sunday, June 25, 2017. - From June 25, 2017, onward, the father will have alternate week-end access on the June 23-25 pattern, and will have mid-week access on the June 15 pattern. - Changes to this

schedule can be made by written consent from each of the parents. 4. Mother’s application for retroactive child support [ 26 ] It is somewhat surprising that the mother has brought an application for retroactive child support in this court when there is an

adjourned application in relation to child support in the Provincial Court. I will adjourn the mother’s application sine die ; if and when she returns her application to this court, I expect the mother to advise this court of the progress of the proceedings in the Provincial Court. 5. Application for shared parenting [ 27 ] The mother indicates that it is her intention to obtain a new lawyer.

If she does, that lawyer and the father’s lawyer will have to decide, together, whether there are sufficient agreed facts for the father’s application for shared parenting to go to a special chambers hearing, having in mind that a special is only a regular chambers application which is anticipated to take longer than 10 minutes for each party. Any dispute about material facts cannot typically be solved by a special chambers hearing. It may be necessary for the parties to begin to plan now for a parenting trial.

Planning may be even more important here because of the number of times these parties have already been in different courts. Given the young ages of at least the two younger children, the parties might also consider approaching the Associate Chief Justice for an early trial date. In the meantime, the father’s application for shared parenting is adjourned without setting a date for its return. 6. Costs [ 28 ] 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 25 th and 26 th days of April, 2017.

Dated at the City of Edmonton, Alberta this 8 th day of May, 2017. J.B. Veit J.C.Q.B.A. Appearances: Leonard N. Thom, Thom Law Office for the Plaintiff, Mr. Salehi Ms. Parwin Babrak, on her own behalf Ronald S. Billingsley, former counsel for Ms. Babrak, for information only