Wenzel v Wenzel, 2017 MBCA 113

Citation: Wenzel v Wenzel, 2017 MBCA 113 Date: 20171127 Docket: AF17-30-08758 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner BETWEEN : INGMAR PETER WENZEL ) D. G. Hill and ) A. J. MacAngus ) for the Appellant (Petitioner) Respondent ) ) K. E. Goertzen and ) H. S. C.

Welicko - and - ) for the Respondent ) ) Appeal heard: Brenda Genevieve Lew Wenzel ) October 27, 2017 ) ) Judgment delivered: (Respondent) Appellant ) November 27, 2017 On appeal from 2017 MBQB 14 HAMILTON JA [ 1 ] The respondent (the mother) appeals the decision of the trial judge granting sole custody of the two children of the marriage to the petitioner (the father), with supervised access to her. [ 2 ] The children (13 and 11 years old at the time of the trial judge’s decision) have some health issues. The older child, a son, has serious food allergies.

The younger child, a daughter, is lactose intolerant and has asthma. The trial judge found that the mother became “obsessed” (at para 10) with their health issues. She also found that, during the marriage, the father “had periods of frustration and anger that he found difficult to control” (at para 7). [ 3 ] The mother had de facto care and control of the children for most of the time after the parties separated in 2010.

The father had unsupervised access until he petitioned for divorce in 2012, after which the mother only permitted him supervised access. [ 4 ] In his petition for divorce, the father sought joint custody, with periods of care and control to be shared on an equal basis, and also shared custody. The petition made no reference to sole custody. In her answer and petition for divorce, the mother agreed with joint custody, but contested the parenting arrangements with respect to periods of care and control and shared custody.

She sought joint custody with final decision-making authority and primary care and control and that, “in some circumstances the time the children have with the [father] ought to be supervised.” [ 5 ] In 2010, the mother had reported the father to Child and Family Services (CFS) for his physical mistreatment of the children. CFS investigated and concluded that, while the father had, on occasion, handled the children too roughly, there was no substantiated abuse of the children.

The father took the anger management and parenting courses recommended by CFS and, in addition, started to see a psychologist (at para 12). [ 6 ] The father brought several interim motions for increased periods of care and control of the children. The resulting

interim court orders granted the parties joint custody of the children and gradually increased the father’s periods of care and control of the children. At the time of the trial in December 2016, the father had care and control of the children 50 percent of the time. [ 7 ] This gradual increase in care and control to the father was consistent with the court-ordered Custody and Care and Control Assessment Report (the report) dated March 3, 2014 prepared by Dr. Linda Trigg (Dr. Trigg).

The report included the following recommendations: • the parties should have joint custody; • the parties should share decision-making responsibilities; after consultation with the father, the mother to be responsible for the children’s health, education and religion; after consultation with the mother, the father to be responsible for their recreation; • the mother was to reduce her lunch time visits to the schools with no visits the following year; • the father’s periods of unsupervised care and control should increase to eventually 50/50 on condition that he complete consultations with a registered dietician to learn about foods for his children; and • the mother needs to address her significant anxiety about the health of the children, particularly the son. [ 8 ] By consent, the parties filed the report as evidence at the trial.

Neither party called Dr. Trigg as a witness to be cross-examined. The trial judge accepted the report, but was “mindful that the report was written almost three years prior to the trial” and that “subsequent events . . . have occurred” (at para 39).

She concluded that the report was entitled to “great weight”, but “it is not determinative of the issues now before the court” ( ibid ). [ 9 ] The trial judge found that the father had “steadfastly adhered to the recommendations” (at para 40) in the report and that the mother “accept[ed] only those parts of [the report] that gave her what she saw as an advantage. . . .

She ignored the recommendation that she obtain therapy” (at para 41). [ 10 ] In her review of the mother’s behaviour following the preparation of the report, the trial judge found, among other things, that the mother: 1) purchased two cell phones for the daughter so that she could be reached at all times with instructions about the children’s food and medications (see para 47); 2) took the children to unnecessary weekly medical appointments (see para 49); 3) isolated the children from family and friends (see paras 51, 53); 4) inspected the children’s bodies for abuse after time spent with the father, which included taking photos (see para 50); 5) attended the son’s school daily to ensure that he was not exposed to allergens (see para 54); and 6) put her children at risk by refusing to provide the children with their medications and Epi-pens when they went to the father’s home (see para 55).

The mother’s stated reason for not providing the medication was that, if the father wanted shared parenting, he had the responsibility to provide the necessary medications for them ( ibid ). [ 11 ] The trial judge viewed these actions as “warning signs that the mother is attempting to alienate the children from their father” (at para 56).

She wrote ( ibid ): The mother’s social isolation of the children, her discounting of the importance of the father and his family in the lives of the children, her unfounded allegations of abuse by the father, her campaign to instill fear and distrust of the father in the children, her endangering the health of the children by withholding medication and her constant fear reaction to the father’s contact with the children, are all warning signs that the mother is attempting to alienate the children from their father. So far, she has not been successful as the court has intervened to increase time with the father.

However, the mother’s escalating behavior in reaction to the increased care and control must be addressed before permanent harm is done. [ 12 ] The trial judge concluded that (at paras 58-60): The current shared custody of the children is not in their best interests. The mother’s behaviour in attempting to alienate them from the father is harmful to the children. For that reason this court is compelled to intervene and to order that the father have sole custody of the children with final decision-making authority in all aspects of their lives.

The father has demonstrated that he is capable of providing a safe home for the children where all of their needs will be met. He has demonstrated that he is a good parent, despite his past behaviour. The father has rehabilitated himself and continues to seek appropriate supports and information to be the most effective parent he can be. The idea of leaving the children in the joint custody of the parties is rejected as both parents testified that they cannot communicate with one another and that co-parenting is not possible.

The children require one decision maker and the father is the best choice as he has demonstrated insight and appreciation for his children and their needs and current stages of development. [T]he mother is in desperate need of mental health therapy as recommended by [the report]. . . . [T]hat love [for her children] has turned into a desperate obsession. [ 13 ] The trial judge ordered sole custody of the children to the father with supervised access to the mother on Tuesdays and

Thursdays between 4:30 p.m. and 7 p.m. and every Saturday from noon to 7 p.m. Supervision is to be through the Winnipeg Children’sAccess Agency or through a third party, as the parties may agree.

She also ordered that the mother may seek a review of the access aftersix months “[i]f the mother undertakes therapy and has shown improvement in her behaviour” (at para 62). [14] The mother asserts four grounds of appeal, arguing that the trial judge made material errors by: 1. ordering sole custody to the father absent any pleading on his behalf requesting that sole custody be granted to him; 2. ordering sole custody to the father without considering all matters relevant to the best interests of the children for sharedcustody, joint custody with primary care and control to the father and joint custody with primary care and control to the mother; 3. awarding the father sole custody when CFS had held that the father was “rough” with the children, even if not amounting tosubstantive abuse; and 4. assessing the mental health of the mother absent expert medical evidence. [15] Ground 1 raises the key issue in this appeal.

Grounds 2, 3, and 4 can be dismissed with brief comment. I will deal withthem first. [16] The trial judge wrote detailed reasons explaining her findings and her conclusions. She found that the father was acredible and reliable witness, but that the mother was not.

She explained that, “The mother’s demeanor under both direct examinationand cross-examination was very concerning” (at para 35), that any question about the children led her to become “histrionic and tearful”(ibid) and that her evidence was “disjointed, inconsistent with the documentary evidence and exaggerated” (at para 38). [17] The best interests of the children was the sole focus of the trial judge’s analysis, as it had to be (see Young v Young, (SCC), [1993] 4 SCR 3).

She considered all matters relevant to the children’s best interests and the custody issue beforeher. [18] The trial judge specifically addressed the fact that CFS had addressed the father’s “rough” treatment of the children.

She noted that he had acknowledged this behaviour, took the courses recommended by CFS, and commenced seeing a psychologist (seepara 12). [19] The mother argued, at the appeal hearing, that the trial judge’s finding that her behaviour was obsessive was a palpableand overriding error, given the evidence with respect to how much she cared for and loved the children and their relationship with her. Isee no such error. The trial judge was well aware of the love and devotion that the mother has for the children and the relationship thatthey had with her.

However, the mother’s evidence, and the other evidence about her behaviour, understandably raised concerns for thetrial judge about the mother’s emotional stability and the children’s well-being when in her care. [20] The record supports the finding by the trial judge that the mother’s behaviour with respect to the children was obsessiveand that she required therapy to help overcome her anxiety. The report provided evidence consistent with the trial judge’s ownobservations and conclusions in this regard.

The trial judge specifically quoted from the report with respect to the mother’s anxiety (atparas 42-44): The mother’s subsequent behavior was in keeping with the findings of Dr. Trigg that the mother: … seems to be so driven by anxiety that she is unable at the present time to be introspective or insightful about her own behavior. Dr. Trigg wrote that the mother: … seemed significantly driven by anxiety rather than rational thought or personal insight. Dr.

Trigg expressed concern about the parenting ability of the mother and wrote that she was: … concerned that in wanting to protect [the son] from any harm, she may not be able to change her behavior or understand it.

Withsignificant anxiety and lack of introspection she may not be adequately preparing her children for life. [21] The essence of the trial judge’s decision is that the best interests of the children require a parenting plan where thefather is the primary caregiver who has full decision-making authority and the mother is to have a very limited role in their lives until shecan demonstrate a change in her obsessive behaviour.

This conclusion is supported by the evidence and is entitled to deference. [22] The difficulty is that the trial judge achieved this parenting plan by awarding sole custody to the father in the absence

of a pleading seeking such an order, contrary to r 70.31(3) of the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88, and in the absence of a request from him, through his evidence or his counsel’s submissions, for such an order. While the record demonstrates that the trial judge had many questions about the appropriateness of a joint or shared custody regime, the continuation of the mother having primary care and control, and the possibility of the father having primary care and control, the trial judge never advised the parties that she was contemplating awarding sole custody to the father.

In my view, she erred by not giving the mother (and the father for that matter) the necessary opportunity to respond to this. [ 23 ] The error is not a jurisdictional one, as argued by the mother. The trial judge was obliged to make an award of custody that was in the best interests of the children and she had the jurisdiction to make the order that she did, despite it not being included in the father’s pleadings. Rather, the error is one of procedural fairness.

See Aquila v Aquila , 2016 MBCA 33 at para 27 . [ 24 ] In Molloy v Molloy , 1993 CarswellMan 437 (CA) , relied on by the mother, this Court deleted from a judgment the paragraph granting sole custody to the mother because she had not sought sole custody in her pleadings. In Molloy , the order of sole custody was granted on affidavit evidence, without notice to the father.

While the circumstances here are very different, it underscores the requirement of ensuring procedural fairness through adequate notice. [ 25 ] In Brundrett v Brundrett , 1998 ABCA 2 , the majority viewed a granting of sole custody in the absence of pleadings seeking such an order to be “at most, a procedural error” (at para 9) because the mother was not prejudiced in how she approached the evidence at trial and the issues had been fully canvassed. I note that the dissenting judge would have granted a new trial. [ 26 ] The mother does not seek a new trial.

She did not argue that the evidence would have been any different if she had notice that the trial judge was considering granting sole custody to the father. However, she did not have the opportunity at the time of submissions to address the issue of sole custody.

She is asking that this Court award the parties joint custody, with primary care and control and final decision making to her, with the father having care and control of the children 50 percent of the time. [ 27 ] The father argues firstly that the trial judge made no error in ordering sole custody to him, as the trial judge’s findings are entitled to deference.

However, he says that, if there is a procedural error, the best way to remedy the error and to give effect to the trial judge’s findings is to make an award of joint custody, with primary care and control and final decision making to him and with supervised care and control to the mother, consistent with the order of access made by the trial judge. I agree. [ 28 ] Therefore, I would allow the appeal only to this limited extent.

I would delete the sole custody and access orders and replace them with the following orders: the father and the mother shall have joint custody of the children, with the father having primary care and control of the children and final decision-making authority on all matters and the mother shall have care and control of the children on the same terms and conditions as the trial judge ordered for access.

Because six months has elapsed since the trial judge made her order, the mother may, at any time, seek a review in the Court of Queen’s Bench of her periods of care and control upon completion of the therapy ordered by the trial judge. [ 29 ] In the circumstances, I would not make an order of costs. JA I agree: JA I agree: JA