AGM v BWM, 2018 ABQB 966

Court of Queen’s Bench of Alberta Citation: AGM v BWM, 2018 ABQB 966 Date: 20181203 Docket: FL01 27797 Registry: Calgary Between: AGM Plaintiff - and - BWM Defendant _______________________________________________________ Endorsement of the Honourable Madam Justice M.H. Hollins _______________________________________________________ [ 1 ] The parties lived together from 2004 to 2012 in the State of Texas. They have two sons; IFM aged 10 and IMM aged 8 (the “Children”). In 2012, the family moved to Winnipeg, Manitoba.

In 2014, there was an incident in which the Mother was found by police asleep or passed out in the family vehicle with the Children inside. The parties separated in 2015. [ 2 ] The Manitoba Court of Queen’s Bench issued a Consent order on July 15, 2015 (the “Manitoba Order”) providing that the Respondent father (the “Father”) would have sole custody of the children and that the Applicant mother (the “Mother”) would have supervised access to the Children as agreed between them.

The Manitoba Order also contemplated that the parties would be moving to Calgary. [ 3 ] The parties did move to Calgary shortly after the Manitoba Order issued. They lived in the same house briefly and then moved into separate residences. The Children continued to reside with the Father. At first, the Mother visited every evening and then later, three evenings a week for two hours on each visit. The Father effectively functioned as the supervisor for the Mother’s access during this time. [ 4 ] In July of 2017, there was another incident in which the Mother fell asleep in her vehicle and was awoken by police.

She says that she fell asleep after several long shifts of work. The Father maintains that she passed out from alcohol consumption. When the police arrived, they demanded that she take a breathalyzer test but she refused. She was charged accordingly and pleaded guilty to that charge.

[ 5 ] In the meantime, the Father had lost his job in the oil sector in Calgary and had begun to look elsewhere for work. On September 27, 2018, without having notified or discussed this with the Mother, the Father moved with the Children to Toronto, Ontario where he had accepted a job with another company in early September. There had been little or no contact between the parties or between the Mother and the Children between the July, 2017 incident described above and the Father moving to Toronto.

Further, there has been no contact whatsoever between the Mother and the Children since then, although the parties disagree about whose fault that is. [ 6 ] The Mother now asks this Court to vary the Manitoba Order to direct the Father to return the Children to Alberta, to provide for shared parenting or alternatively to provide her with unsupervised parenting time. This matter was before the Court as a Special Chambers Application with viva voce evidence. Thus the evidence upon which this decision is based comes from the Affidavits of the parties and from their evidence given in Court.

Jurisdiction [ 7 ] Early in these proceedings, I raised a question of my jurisdiction with counsel but neither were able to definitively answer that question. On materials provided thereafter, they indicated their clients’ mutual consent to my jurisdiction but provided no legal analysis of the question. I have been unable to determine the precise basis on which I hold jurisdiction to hear the mother’s application.

The Family Law Act , under which her application is brought, deals only with concurrent proceedings of which there are none. [ 8 ] In this case, the Children were resident in Alberta from 2015 to 2017, just over two years, during which time the parties abided by the Manitoba Order notwithstanding that it was never registered in Alberta. In the fall of 2017, the Children were taken to Ontario. No order was sought or obtained by the Father prior to that move.

Although it is arguable that no court order was required, the effect was to change the domicile of the Children without regard to the Mother’s rights, including those set out in the Manitoba Order. Finally, no application has been brought in Ontario. Therefore, with the Father’s agreement and given that the Mother resides in Alberta and the parties agree that her parenting will continue to take place in

part in Alberta, I am satisfied that I have jurisdiction to make a parenting order in respect of this application and of the Children. Parenting [ 9 ] The Mother wants primary care of the Children or alternatively, for the restrictions on her supervised access to be lifted or changed. Given all the circumstances of this family, it is not appropriate to consider a complete change in custody and yet another change in their residence at this time.

The Father objects to any changes to the Manitoba Order on the basis that the Mother’s alleged alcoholism, which was the basis for her restricted parenting in that Order, has not changed. [ 10 ] The Mother admitted that she does drink but vehemently denied not only having a drinking problem, but ever having had a drinking problem of any kind. She explained both instances of falling asleep in her vehicle as fatigue.

The Father’s evidence was completely contrary; he testified that her drinking had been a problem as far back as 2011 or 2012, that he had repeatedly pleaded with her to get help and that she had in fact attended rehabilitation on one or more occasions although only for a few sessions. He gave a number of examples of coming home to find the Mother passed out; once with the children in the tub which had overflowed and flooded the house. [ 11 ] The 2014 and 2017 incidents were not contested in terms of what happened, only the cause.

The Manitoba Order (which gave sole custody to the Father and only unspecified supervised access to the Mother), her refusal to take the breathalyzer, the cogent and detailed evidence of the Father, the additional evidence of a former friend of the Mother who also testified as to the Mother’s overdrinking early in the morning on an occasion last year, have all convinced me that at least until mid-2017, the Mother had a relatively serious alcohol addiction. [ 12 ] The Mother’s counsel argued, and I agree, that past conduct is not to be considered unless relevant to parenting.

In this case, the Mother swears under oath that she does not have an alcohol problem. I do not know if she still has an alcohol problem but I am convinced on the evidence before me that she certainly has had addiction issues in the past that have compromised her ability to parent.

And so because she denies ever having a problem, notwithstanding the overwhelming evidence to the contrary, her credibility is damaged to the point that I cannot completely accept her evidence that she is now fine and has no problems with alcohol that would affect her parenting. [ 13 ] Even if that were not the case, I am extremely troubled by the fact that the Mother has had no contact with the Children for approximately 1½ years. She says that is because the Father effectively ended her supervised access by refusing to accept any of the people she suggested as supervisors.

The Father concedes that he has been unwilling to accept a supervisor that he does not personally know but says that the Mother has also failed to try to find a solution or to connect with the Children by telephone or Skype. [ 14 ] I believe that this situation is the fault of both parents. The Manitoba Order directed the parties to agree on supervised access. It did not give the Father a veto that he could use to reject every suggested supervisor and effectively deny the Mother her court-ordered access.

And while the Father did have sole custody, his actions in unilaterally moving the Children to Toronto with no notice to the Mother does not stand him in good stead with this Court. [ 15 ] In any event, we now need to find a parenting arrangement that will be in the best interests of the Children. I am not ordering them returned to Alberta as I believe it unlikely that the Mother would receive shared parenting or immediate unsupervised access in any event. [ 16 ] The Children will remain in the custody and primary care of the Father.

The mother will have supervised parenting time with the Children as follows: A minimum of one weekend visit (Friday to Sunday or Monday if it is a statutory holiday) per month in Toronto, with a maximum of 4 hours per day. The Mother will pay her own travel costs for those visits, based in part on the fact that she is not paying child support for the Children notwithstanding that she is employed and the Children are supported fully by the Father. The Mother’s parenting time in Toronto will be supervised by Juvie Palope, the Children’s daycare provider, or any other person agreed to by both parties. If there is

any cost to that supervision, it will be paid for by the Father, as his decision to move to Toronto has meant that the Mother has no potential supervisors there who are known to her; and Anytime the Father is travelling to Calgary with the Children, he will give the Mother no less than two weeks’ notice of his trip, upon which she can arrange parenting time with the Children for up to 4 hours per day that they are in Calgary. The supervisor may be any of Elena Sampululu, Clara Sampululu or Monica Njoroge, or any other person agreed between the parties.

It is not my understanding that any of these family members or acquaintances would charge for providing this supervision, but if they do, that cost will be split equally between the parties. These visits in Calgary are to be in addition to any visits that the Mother has in Toronto.

If the Father visits Calgary with the Children and does not advise the Mother as directed, that will be a breach of this Order. [ 17 ] This Order will be reviewed, on application by the Mother should she wish, filed with the Court no sooner than April 1, 2019 and no later than May 15, 2019, at which time the Court may consider the need for continued supervision of the Mother’s parenting time, as well as the parties’ summer 2019 plans. [ 18 ] In other words, the Mother may apply next spring for further parenting time or to change the conditions of her supervised parenting time, with updated evidence as to her visits with the Children but without the requirement of proving any material change in circumstances.

If the Mother chooses not to, or fails to, exercise the parenting time under this Order, she should provide an explanation thereof. [ 19 ] In default of the Mother’s application for review within the time frame above, this Order will continue and either party applying to vary will have to prove a material change in circumstances. Heard on the 6 th day of November, 2018. Dated at the City of Calgary, Alberta this 3 rd day of December, 2018. M.H. Hollins J.C.Q.B.A. Appearances: Mr. A. Otiti for AGM, the Applicant Mr. C. Kim for BWM, the Respondent