Nyhus v Chambers, 2021 ABQB 1025

Court of Queen’s Bench of Alberta Citation: Nyhus v Chambers, 2021 ABQB 1025 Date: 20211223 Docket: 4803 190932 Registry: Edmonton Between: Malin Nyhus Defendant (Applicant) - and - Danielle Stephanie Chambers Plaintiff (Respondent) _______________________________________________________ Endorsement of the Honourable Mr. Justice M.J. Lema _______________________________________________________ A. Introduction [ 1 ] A parent seeks a stay of an order directing the return of a child to the other parent’s care, pending the outcome of an appeal of the order. [ 2 ] No stay is warranted here.

[ 3 ] The order stands, now with a return of the child to occur at 3 pm tomorrow (December 24, 2021) at the Camrose RCMP detachment, with the revised order police-enforceable. B. Background [ 4 ] The background is outlined in

part in my unreported (return-child) decision on December 16, 2021. [ 5 ] In a nutshell, the mother had been the de facto primary parent since separation (November 2019) through to summer 2021, when the father refused to return the child after one of his every-second-weekend access periods, citing a need to investigate possible abuse of the child by persons in the mother’s circle. [ 6 ] A combined Zebra Centre and police review found no material evidence of abuse. [ 7 ] For various reasons, those reviews required a number of months to complete.

During that period, the parties entered into an interim without-prejudice consent order providing for supervised access for the mother, which was largely exercised at the paternal grandparents’ home. [ 8 ] The matter came before me in family chambers on November 25, 2021, at which time I requested further (affidavit) evidence from the parties. [ 9 ] After reviewing the original and supplementary materials, I issued the following decision: I have reviewed the follow-up affidavits sworn by Mr. Nyhus on November 26, 2021 and Ms.

Chambers on November 29, 2021, [counsels’] December 13, 2021 letters, and the December 7, 2021 Zebra Centre report. I see no reason why [the child] should not return to Ms. Chambers' primary care, effective December 19th (see below). If I understand correctly, no parenting order was in place when, in May 2021, Mr. Nyhus unilaterally began primary parenting of [the child] in place of Ms. Chambers who, to that point, had been the de facto primary parent, since separation. Mr.

Nyhus's unilaterally-implemented primary parenting was apparently triggered by concerns which neither the Zebra Centre nor the police have regarded as well-founded or as otherwise raising any material concerns. In any case, I am not satisfied that any perceived concerns by Mr. Nyhus, well-founded (or otherwise) at the time, justify the continued switch in primary parenting from Ms. Chambers to him, with no evidence pointing to any continuing risk to [the child] at this stage. As I see it, Mr.

Nyhus's concerns, now shown to be ill-founded, have created a new status quo parenting i.e. without any other foundation e.g. an application to change primary parenting from Ms. Chambers to him, evidence found on the whole to support such a change, and an order operating on an evidentiary foundation showing a need for primary parenting to change. With no such application made at this stage, let alone at any point after separation, I am not prepared to countenance the continued status quo , with no apparent ongoing concerns from the Zebra Centre or the police, and with the update evidence (even accepting Mr.

Nyhus's November 26th, 2021 affidavit at face value) not satisfying me that [the child] would be at any material risk in returning to Ms. Chambers' care as primary parent. In fact, the opposite -- further continuation of the status quo , with Ms. Chambers' parenting marginalized as it has been since May of this year, would be seriously against [the child’s] best interests. All to say: the unilateral change in parenting, exposed as unwarranted, cannot continue. [The child] shall return to Ms. Chambers' primary care no later than this coming Sunday evening (December 19th) at 6 pm. As requested by Ms.

Chambers and in line with what I understand was the pre-May-2021 parenting, Mr. Nyhus shall have parenting time every second weekend, with the precise start and finish times to be agreed between the parties or, failing agreement, as set by me after receiving each party's position, via email, sent by close of business on Tuesday, December 21, 2021, plus such other parenting time as the parties may agree. As for the restraining order against Ms. Chambers' father, if I understand from her November 29, 2021 affidavit (para 10), it has been amended to allow [the child] to be in his presence while [the child] is in Ms.

Chambers' care. As for Mr. Nyhus's request for an "independent expert or advocate" for [the child], if he continues to believe that such is or could be warranted for a 3.5-year-old child, he is free to apply for such relief, in the same way that he is free to apply, after going through the Family Docket process, to change parenting i.e. if he continues to believe that is in Elijah's best interests. (For greater certainty, he would have to apply through Family Docket even for the "expert or advocate" relief as well.) I would ask Mr.

Snyder to prepare an order reflecting this decision. [emphasis added] [ 10 ] On December 20, 2021, the mother’s counsel advised that the father had not returned the child as directed, and asked for advice and directions. [ 11 ] Later that day, the mother’s counsel advised that he would speak to his client and advise the Court as soon as possible. [ 12 ] On December 21, 2021 (9.20 am), the mother’s counsel advised that the father had still not complied with the return-child order. (He also proposed every second weekend access (Friday at 6 pm to Sunday at 6 pm) for the father.

Via follow-up email shortly afterwards, he proposed an adjustment to Saturday noon to Monday noon.)

[ 13 ] Later that day (9.55 am), the mother’s counsel advised (in part) as follows: I have now spoken to my client and can advise as follows. ... As an officer of the court, I explained the terms of Your Lordship's Order to my client and advised him to follow it. He advises that he intended to , but decided not to due to concerning comments made by the child of the marriage when he told [the child] he had to go to his mother's. This was not a decision that he made lightly. In consultation with local police, Mr. Nyhus made his decision out of concern for [the child’s] immediate safety. Mr.

Nyhus is taking prompt steps to resolve this matter. I have instructions to exercise his right to appeal Your Lordship's Order under Rule 14.4 by filing a Notice of Appeal, and to concurrently apply for a stay of the Order pending the appeal. Under Rule 14.48, this application must be made either directly to Your Lordship and/or to a single appeal judge. In the interests of expediting this matter, I would ask Your Lordship for leave to submit a formal application to you via email pending the filing of the application documents.

He is currently preparing an affidavit in support that addresses the details of what I advised above. Mr. Nyhus's position is that a stay is appropriate according to the test for stays pending appeal as modified in parenting cases, which focus on the danger of irreparable harm and the balance of convenience according to what is in the best interests of the child (cf.

CLS v BRS, 2013 ABCA 349 at paras 10ff .) I await Your Lordship's advice and direction. [emphasis added] [ 14 ] At 10.07 am, the mother’s counsel responded: Our position is that there should no consideration of a stay given the utter lack of evidence in support of same. It is Mr. Nyhus’ prerogative to appeal, but the stay application has to be properly brought before the court, on appropriate notice, and with evidence. Given that we are on the verge of many firms shutting down, and the courts being closed, Mr. Nyhus’ timing is most self-serving.

It is our view that the order needs to be complied with, with police enforcement, and then we can deal with the appeal and stay issues in January. [ 15 ] I agreed to hear the father’s stay application and set deadlines for the receipt of materials and submissions, later in the day on December 21 st . The parties submitted materials and submissions by their respective deadlines. C. Evidence and positions on stay [ 16 ] The father submitted an affidavit, deposing as follows: I make this Affidavit in support of my application for a Stay of the Order of the Honourable Mr. Justice M.J.

Lema made Friday, December 17, 2021 ("the Lema Order"), pending an appeal which I have instructed my Counsel to file on my behalf. The Order arose from an application made in Regular Chambers by the Respondent on November 25, 2021, for a change in the parenting regime of [the child, age 3.5 years]. At the time, there was an Interim Consent Order in place granted by the Honourable Madam Justice B.L. Bokenfohr on June 25, 2021, under which I was to have primary care of [the child].

This Consent Order was entered into following my application to Family Docket Court, which was prompted by my concerns over [the child’s] safety while in the care of the Respondent. I instructed my Counsel to seek an adjournment of the November 25, 2021 application for two reasons, namely: My lawyer, Alexander Kubish, was not available on November 25, 2021. Following service of the Application on November 22, 2021, with a returnable date of November 25, 2021, Mr. Kubish requested an adjournment by consent and proposed several alternate dates for scheduling the hearing.

However, the Respondent would not consent to an adjournment. Mr. Kubish's colleague, Paul McWilliams, appeared in Regular Chambers on my behalf to request an adjournment. My lawyer advised me of Practice Note 2 and the requirement for significant changes in parenting to be heard in Special Chambers except in cases of urgency. During the November 25, 2021, Chambers hearing, the Honourable Justice M.J. Lema adjourned the matter from November 25, 2021 sine die, pending His Lordship's receipt of my Affidavit evidence in response to the Application, which was submitted to His Lordship as required.

Although not required to do so, the Applicant submitted a reply Affidavit to mine. On Friday, December 17, 2021 [actually December 16, 2021], Justice Lema's decision was rendered by email to both Counsel, such that the Consent Order would be varied to grant the Respondent mother primary care of [the child]. Mr. Kubish advised me of the terms of this Order [which included a return-child deadline of 6 pm on Sunday, December 19 th , 2021]. Later that weekend, [the child] overheard me discussing the terms of the Order with my partner, Sheryl McNeil ("Ms.

McNeil"), to the effect that I would have to take him to his mother's later that weekend. [He] immediately started screaming and crying hysterically, and became so anxious he began hyperventilating. He begged us over and over to let him stay with us, saying "Please, I don't want to go back — don't let them take me.. .I just want to stay here with you... Please daddy!" Additionally, [the child] disclosed to me last week that he did not want to see the Respondent's stepfather, Benjamin Wipf ("Mr. Wipf"), with whom the Respondent lives, because Mr. Wipf "hits" and "spanks" him.

This followed a FaceTime call between the Respondent and [the child] wherein Mr. Wipf jumped into the call and yelled at [him], saying "Tell your fucking dad [numerous swear words in German]" and making death threats towards me. I was not present at this FaceTime call, but I do have a video

recording of it. Ms. McNeil and I currently have a restraining order against Mr. Wipf. An interim order was granted on November 23, 2021, a copy ofwhich is attached as Exhibit "A". [The child] is mentioned as a person whom Mr. Wipf is restrained from contacting, with the exeptionof when the Respondent has parenting time. This interim order is set to be reviewed at an oral hearing on January 10, 2022. While I intended to comply with the Court's direction, [the child’s] response as described above, along with his disclosure of possiblephysical and verbal abuse by Mr.

Wipf, made me very concerned about his well-being if I did. This was the first time since the ConsentOrder that he was faced with the immediate reality of going to the Respondent's home, as under the terms of that Order her parentingtime was to be exercised at my parents' home. I sought the advice of the police in my jurisdiction, namely Camrose RCMP. Theofficer advised me that I should always do what I felt was in the best interests of my child where the child's safety was at hand,but that I should act promptly to resolve this matter with the courts, which is why I am bringing this application.

They alsoadvised me that based on the information provided to them, the police would likely exercise their discretion to not enforce aparenting exchange despite a standard police enforcement clause, due to concerns for the child's best interests. I make this Affidavit in support of my Application for a stay of enforcement of the Honourable Justice Lema's Order of December 17,2021, pending the outcome of my appeal of the same. [paras 2-11] [emphasis added] [17] Mr.

Nyhus’s counsel submitted these arguments (in part): … Based on [the child’s response as described above], it is respectfully submitted that it would not be in [the child’s] best interests forhim to be forced to go to Ms. Chambers’ and Mr. Wipf’s residence for the better part of two weeks at this time. The test for a stay of an order pending appeal is found in RJR-MacDonald Inc v Canada (AG), (SCC), [1994] 1 SCR311 … at 334-3335. Mr. Nyhus has the burden is establishing (a) “a serious question to be tried”, (b) “irreparable harm if the stay is notgranted”, and (

c) that “the balance of convenience favours granting the stay.” This test is further modified in parting matters (cf Nissen vNissen, 2019 ABCA 444 , 2019 ABCA444 (“Nissen”) at para 12: “Generally, whenever courts must determine what is in thebest interests of a child, there is a serious issue to be tried.

Under the second and third parts of the test, the issue is whether the childrenwill suffer irreparable harm if a stay is not granted, and it is the child’s best interests that will determine the balance of convenience.”) The Court in Nissen and in CLS v BRS, 2013 ABCA 349 … also commented that “all three sections of the test engage the paramountprinciple of the best interests of the children.” Based on the information available to the Court at this time, it is submitted that this test is met. [The child] would suffer irreparablemental and physical harm if forced to go to Mr. Wipf’s and Ms.

Chambers’ residence, based on his serious negative response to theimmediate reality of a parenting [change] without supervision. The balance of convenience favours a stay for the same reason, as basedon this information, [the child] would clearly be more comfortable staying with his father at this time. I further note that, if a stay isgranted, the Bokenfohr Order (which was consented to by the parties in the interim following Mr. Nyhus’s application to Family Docketcourt) would still operate to allow Ms. Chambers to have regular and defined [supervised] parenting time and virtual access. [18] Ms.

Chambers’ counsel responded later on December 21st, as follows: … I submit that a stay is not even remotely warranted here, as there is not credible prospect of irreparable harm coming to the child. Theallegations about Mr. Wipf are spurious, have no date, and concerns about him have been addressed by the police and Children’sServices. Moreover, the court in the restraining order matter has already allowed contact between Mr. Wipf and the child [while themother is present]. … Mr. Nyhus’s tactics are nothing more than an abuse of process and, by extension, the child. D. Analysis [19] Mr.

Nyhus has not satisfied the test for a stay here: • to the extent his stay request is anchored in his intended (or perhaps now-in-place) appeal of my December 16th order to theAlberta Court of Appeal (as stated in his stay application and counsel’s letter), he raises no issue, let alone serious or arguable issue,arising from my decision itself. Instead, he gives evidence of post-decision developments, namely, the described reactions of the child tothe prospect of returning to his mother’s care; • Mr.

Nyhus’s evidence is that “[he] intended to comply with the Court’s [December 16th] direction” i.e. to return the child to themother as ordered, but chose not to comply in light of the described developments • in these circumstances, I am not satisfied that an appeal-based stay is warranted here, with no reference to any perceived error in the December 16th decision and an apparent intention to comply with the order i.e. but for new developments; • Mr.

Nyhus is effectively seeking a stay of that order based on those new developments, not on his proposed or in-progress appeali.e. an assertion that complying with the return-child order is not in the child’s best interests in light of the described developments; • even from that perspective, I am not satisfied a stay is warranted here: o as seen in my earlier decision, Mr.

Nyhus has a track record of making allegations not borne out on further investigation; o despite his new partner apparently being on hand when the child apparently voiced his initial (“don’t want to go back”) comments,she provided no evidence here, and neither did Mr. Nyhus offer to ask for and provide evidence from her; o I am suspicious of a report a 3.5-year-old child saying (as part of his claimed remarks) “don’t let them take me.” Who is heapparently referring to? To the mother, who is apparently the one person on-hand at pick-ups? To the police or other state authorities?

If so, how would the child know that others might be involved in ensuring the order is followed and, if he had such knowledge, how did it obtain it, from whom, and when? Mr. Nyhus provided no explanation or context here; o Mr. Nyhus does not describe the aftermath of these apparent remarks e.g. evidence of the child’s apparently agitated state continuing for the balance of that day, through the night, into the next day, or any material length of time. Even if the child voiced these remarks (and did so “over and over”), did he calm down after a few minutes? Did Mr.

Nyhus or his partner, or both of them, do anything to calm the child or to try to allay any worries or concerns expressed by him? I infer from the absence of any detailed “aftermath evidence” from Mr. Nyhus that, at minimum, the child’s reaction, even as described, did not persist beyond for any material length of time i.e. did not reflect continuing emotional distress or upset; o it is natural that the child might express some initial distress or upset on learning of the return-to-mother order.

After all, due to the father’s unauthorized-by-court-order initial retention of the child and the probably inevitable reduced-access-by-the-mother order (interim and without-prejudice) while the Zebra Centre and police investigations were in progress, the father has had primary parenting of the child since June of this year. A shift in primary parenting, in the eyes of such a young child, and after several months of a new kind of status quo , will undoubtedly create some upset and require some adjustment time.

But as noted in my December 16 th decision, the father should not receive any particular credit or benefit for creating a new status quo i.e. creating a circumstance in which the child’s transition to the former status quo parenting might be initially difficult; o while I acknowledge that the timing was extremely tight here, the father presented no evidence from any third party qualified to assess the child’s emotional state (family doctor, pediatrician, psychologist, counsellor or other person) or even offer to seek out such evidence i.e. to corroborate his account of significant emotional distress; o neither did he give evidence of any outreach by him to the police or Child and Family Services in respect of these apparent developments; o leaving aside the Mr.

Wipf aspect for a moment, Mr. Nyhus raised no other reason --i.e. beyond the child’s reported initial reactions – why the switch back to mother-primary parenting should not occur; o on the Mr. Wipf aspect, my December 16 th decision already acknowledged the existence of the restraining order, noting it had been amended to permit him to be in the child’s presence as long as the mother is present. I also note that the restraining order is being challenged by Mr. Wipf, with a January 10 th viva voce hearing scheduled.

As far as I know, the decision to amend the order to permit such contact is not under appeal or otherwise being questioned by Mr. Nyhus; and o further on that aspect, I find the timing of the apparent revelations concerning Mr. Wipf’s conduct suspicious.

The child has been in Mr Nyhus’s primary care for approximately six months, during which time the child would presumably have voiced such concerns e.g. in discussions from time to time about the mother’s home who lives there, and how life is there; o I also note that, despite the fine-toothed-comb reviews of potential abuse earlier this year, none apparently yielded any concerns about Mr. Wipf’s conduct; and o finally, Mr.

Nyhus gave no evidence of trying to get more details – however simple – from the child of the asserted misconduct here. [ 20 ] All said: I am skeptical of the father’s report of the child’s reactions to learning of the ordered parenting change.

But even if they occurred as reported, I am not satisfied that they reflect ongoing emotional distress or that, even if they do, that such distress outweighs the long overdue benefits of the child returning to his mother’s primary care, as explained in the December 16 th reasons. [ 21 ] I am not satisfied that, even factoring in the reported reactions (i.e. assuming them to be true) that the child is at any material risk in returning to the mother’s primary care, and this even acknowledging that she lives with her parents i.e. including Mr.

Wipf. [ 22 ] To the contrary, the continued withholding of the child from his mother’s primary care is what represents a serious risk to the child’s best interests here. [ 23 ] I note, per his counsel’s letter, that Mr.

Nyhus’s suggestion for access for the mother, if a stay were granted, is “regular and defined supervised parenting time and virtual access.” [ 24 ] This signals another fundamental misread here: no evidence compels or even suggests that the mother’s parenting requires supervision or any other limitations. [ 25 ] Even assuming a serious issue here (i.e. whether the asserted new developments require a revisiting of the December 16 th order), I am not satisfied that the child’s return to his mother’s primary care raises any material risk of irreparable harm.

The risk runs the other way i.e. from continued interruption of the mother’s primary parenting. [ 26 ] As for the balance of convenience here, the fundamental reset required here is the reversal of the father’s initially- unauthorized retention of the child, with the initial allegations of abuse now cleared, the mother fundamentally fit to parent, and Mr. Wipf’s presence in the child’s life cleared in defined circumstances. [ 27 ] Restoring that initial status quo is entirely in the child’s best interests here. E.

Conclusion [ 28 ] For all these reasons, I dismiss the father’s application for a stay of my December 16 th order. [ 29 ] The father shall return the child to the mother at 3 pm tomorrow (December 24, 2021) at the Camrose RCMP detachment.

[ 30 ] The father’s access shall be as proposed (as amended) by the mother, with the first access period being January 2 nd to 4 th , 2022. [ 31 ] This order is police-enforceable, and these reasons shall be regarded, for the time being (i.e. until the formal order has been prepared and entered), as the order itself i.e. as the Court’s bottom-line decision on the stay and the return of the child. [ 32 ] In other words, preparation and entry of the formal order is not a precondition to the immediate operation of this decision. [ 33 ] Per Rule 9.6: “Every judgment and every order, whether or not it has been entered, comes into effect on … the date of pronouncement.”) [ 34 ] The order is hereby pronounced and is now in effect. [ 35 ] The mother is entitled to her costs of this stay application.

Heard by way of written submissions on December 21 st , 2021 Dated at Edmonton, Alberta this 23 rd day of December, 2021. M. J. Lema J.C.Q.B.A. Appearances: Alexander Kubish Simpson and Associates LLP for the Defendant (Applicant) father Timothy J. Snyder Skovberg Hinz for the Plaintiff (Respondent) mother