RD v LT, 2021 ABQB 364

Court of Queen’s Bench of Alberta Citation: RD v LT, 2021 ABQB 364 Date: 20210507 Docket: FL03 59803 Registry: Edmonton Between: RD and PD Applicants - and - LT and AD also known as AT Respondents _______________________________________________________ Decision of the Honourable Mr. Justice T.D.

Clackson _______________________________________________________ [ 1 ] The Order which resulted in this hearing stated that the issue to be determined was whether AD had the capacity and entitlement to instruct her counsel to agree to an order which made LT the primary parent of their daughter, and reduced AD’s parenting time from 50/50 to every second weekend. AD’s parents, whom I will refer to as the Grandparents, argued that the word “entitlement” also embraced the question about whether AD and LT were able to proceed to obtain the Consent Order without notice to the

Grandparents. I disagree. The Manderscheid Order is clear. This hearing is about AD’s capacity and whether she had any authority to do what she did. [ 2 ] The evidence makes it clear that everyone involved in this proceeding knew that AD had and has a mental illness described as Bipolar Disorder. The 2014 Divorce Judgment, paragraph 6, makes it clear that LT was aware of that fact.

The evidence associated with the care of their daughter, in the years following, remove any doubt that LT knew his ex-wife was not well, without treatment. [ 3 ] While I have no expert evidence as to what the illness means and what behaviour someone with the illness should be expected to display, I think I can rely upon the evidence of AD, RD and HM as accurately describing AD’s behaviours.

This is important as AD’s capacity is only in question because of the illness. [ 4 ] I accept that for AD, the illness means a series of cycles that consist of mania followed by depression and then an indefinite period of wellness. By wellness, I mean competence. The mania described to me is best understood as a pressure to do everything at once without any consideration beyond the immediate consequence all motivated by the need for instant gratification. The other end of the cycle is a deep depression which can result in a form of catatonia.

AD has been hospitalized on a number of occasions because of these cycles, apparently always in the midst of a high or a low. [ 5 ] It is also fact that at all times while AD was in a period of wellness and stability, she wanted to be involved in the care of her daughter along with the assistance of her parents. The evidence discloses that in fact was the case to the knowledge of all until the Fraser Order. [ 6 ] The Fraser Order was made just after AD was released from hospital because of her illness.

AD and her mother both described the period from AD’s release from hospital until November 2018 and probably until the late spring of 2020 as a period of unwellness or mania. I accept that evidence. Therefore, at the time that the Fraser Order was made, AD was manic, at least to some degree. That fact is corroborated by the Order giving up parenting – something unusual to the well AD’s desire. [ 7 ] As against that, the evidence of Barry King and Nicole Zahardy is that AD appeared able, lucid, engaged and competent.

Of course, because of solicitor-client privilege, I was not able to hear what actions, reactions and instructions were relied upon to form those judgments. All I can do is conclude that Mr. King, who has a duty to ensure that his client is apparently competent to give instruction, did so. I don’t know whether someone who is manic can appear competent, but that must be the case since I believe Mr. King that he believed AD was competent even though the other evidence shows that she was in a manic cycle. [ 8 ] On the question of capacity, I am satisfied that AD was not.

Therefore, it is my view that the Order cannot stand and must be vacated. [ 9 ] The bulk of the argument before me related to the question of alternative bases upon which the Grandparents seek to vacate the Fraser Order.

The Grandparents raised the Personal Directive, the Power of Attorney, the November 2018 assignment of temporary guardianship, and the December 2018 declaration of guardianship all in support of their argument that AD could not or at least not unilaterally, consent to the Fraser Order. [ 10 ] I accept that the terms of the Personal Directive, which required specific steps before it became effective, had become effective in 2016.

However, both by its terms and the practice of the Grandparents, once AD had cycled to wellness, the Directive would cease to have effect and would not regain its force until paragraph 3.2 had again been complied with. Therefore, when AD cycled to wellness, sometime in 2017, the Directive ceased to have effect and was not reinvigorated. [ 11 ] The situation with respect to the Power of Attorney is completely different. It was activated in December 2016. It remained in full force and effect until revoked. It was therefore in full effect at the time of the Fraser Order.

It follows that AD had no entitlement to enter into the Consent Order. [ 12 ] LT argued that he had no notice of the existence of the Power of Attorney. The Grandparents say he did and rely upon the recordings of conversations between the Grandparents and LT. I have not relied upon the transcripted recordings. Mr. Patzer tried to have me consider, after I had reserved this decision, some evidence that LT had consented to the recorded conversations. I cannot. Therefore, on the evidence before me, the recordings were done surreptitiously.

Whatever other courts may think on this subject, I believe accepting such evidence encourages an activity which is deplorable. [ 13 ] In any event, it is plain from the email exchanges in the evidence before me, the orders filed and the agreements made by the Grandparents, AD and LT, that LT must be taken to have known that the Grandparents were caregivers and had assumed responsibility for caring for AD, protecting her and performing her duties in relation to her daughter when AD was unwell.

In that sense, LT certainly knew that if AD was unwell, which seems to have been the opinion he had formed when he launched the application that ended up in the Fraser Order, her parents would, as they had done in the past, step into her shoes. [ 14 ] In result, the Power of Attorney in favour of the Grandparents precluded AD from consenting to the Fraser Order. For that reason, as well, it must be vacated. [ 15 ] As for the November 2018 agreement and declaration, it is my view that neither are valid. AD was incapable because of her illness and incapable because of the Power of Attorney.

She had no capacity to executed either document. [ 16 ] The argument that the Fraser Order would still be valid because paragraph 6 of the Divorce Judgment would support the Order, in any event, fails. The fact is that the Order does not make any reference to paragraph 6 of the Divorce Judgment.

It is not for me to speculate on what Justice Fraser might have done relative to an application based on paragraph 6. [ 17 ] I agree that paragraph 6 may have justified an order changing the parenting regime, but evidence as to the parenting regime would have been essential to discharging the Court’s obligation to act in the best interests of the child. That would invariably mean the involvement of the Grandparents in providing childcare would have had to have been explored. In result, Justice Fraser would have had

full exposure to the history of these parties and that may very well have led to a completely different order. [ 18 ] In result, the Fraser Order is vacated. [ 19 ] The parties may speak to costs on appointment. Heard on the 15 th day of April, 2021. Dated at the City of Edmonton, Alberta this 7 th day of May, 2021. T.D. Clackson J.C.Q.B.A. Appearances: Collista Coles, Huizinga Di Toppa Coles & Layton for the Respondent, LT AD, SRL Respondent D. Patzer, Spectrum Law for Applicants, the Grandparents