Docket: CACV2064 Christopher R. Hahn Appellant - v. -, 2012 SKCA 39

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 39 Date: 20120328 Between: Docket: CACV2064 Christopher R. Hahn Appellant - and - Dianne M. Michon Greschuk Respondent Coram: Klebuc C.J.S., Lane and Smith JJ.A. Counsel: Christopher Hahn appearing on his own behalf Dianne Greschuk appearing on her own behalf Appeal:

From: FLD 145 of 2005, J.C. of Saskatoon Heard: February 15, 2012 Disposition: Dismissed Written Reasons: March 28, 2012 By: The Court The Court: [ 1 ] This appeal is the latest

chapter in an extensive and ongoing history of litigation between these parties in relation to access to and care of their son, T, now 12 years old, of whom the respondent has sole custody. The respondent lives in Calgary with her husband, T, and two other children of her present marriage. The appellant is involved in the film industry and spends much of his time traveling abroad in relation to filming projects. He appears to have no regular permanent residence and informed this Court that he spends less than a month out of each year in Saskatoon.

The appellant’s access to T takes place in Calgary pursuant to the order of Wilkinson J., following a trial focused solely on the issue of whether he should have unsupervised access to T ( 2009 SKQB 505 ) Wilkinson J. granted unsupervised access. In light of the ongoing hostility between the parties, she ordered that the supervised exchange program of a Calgary facility known as Sheriff King Centre would be used for all exchanges.

The appellant had indicated his willingness, despite previous objections, to use this facility. [ 2 ] The subject of the instant appeal is a decision in chambers of the Court of Queen’s Bench in relation to an application brought by the appellant requesting an order requiring that he be immediately notified if T is injured, sick, or requires medical attention and an order changing the mode of access exchange so that the appellant would not be required to utilize the Sheriff King Centre, essentially renewing earlier objections to that facility.

He wishes, instead, to use another Calgary facility referred to as the Town & Country Youth and Family Services Centre. The first request arose after T was hospitalized for 13 days in relation to a ruptured appendix and the appellant was not notified until two weeks after T’s discharge from hospital. The chambers judge ordered the respondent to advise the appellant by e-mail or telephone within 48 hours of the child being seriously ill, injured or requiring hospitalization.

The second request was rejected by the chambers judge who found no substance in the appellant’s objections to the Sheriff King Centre and noted that he had agreed to this mode of exchange before Wilkinson J. [ 3 ] The appellant has appealed both aspects of this order. On the first point, he takes the position that he should be given earlier notice in the event of T’s illness or injury. He now asks for notice within 12 hours.

On the second point, he now takes the position that the Sheriff King Centre refuses to deal with him and, unless the mode of access is altered, he is essentially denied any access with his son. The respondent opposes both positions. She submits that the appellant continues to harass and threaten herself and her husband despite a court order of no contact and that they should not be required to deal with his erratic and abusive conduct at the same time that they might be dealing with the crisis of an injured or ill child.

On the second point, she disputes the claim that the Sheriff King Centre will not deal with the appellant. She indicates that she has been advised by staff of the centre that they will do so provided the appellant ceases to be abusive to staff and other clients.

She takes the position that this is just another instance of the appellant himself sabotaging access arrangements and is unlikely to be the last, and, further, that she is more comfortable with that facility in light of the appellant’s on-going abusive conduct toward her and her family. [ 4 ] Neither party provided any sworn or reliable evidence on this issue or in relation to alternative facilities that might be used to facilitate access exchange. [ 5 ] An extensive account of the factual background of this dispute is set out in the judgment of Wilkinson J., supra . A

summary would be appropriate here, to put the issues into perspective. The appellant and respondent had a romantic but volatile relationship in the late 1990s. T was conceived in that relationship and was born on August 5, 1999. The relationship deteriorated and the appellant left it in June 2000, before T’s first birthday, telling the respondent she would never see him again. In January, 2001, the respondent began living with M.G., her present husband.

This all took place in Saskatoon. [ 6 ] Although the appellant commenced proceedings in August, 2001, seeking access to T, the matter did not proceed beyond service of the documents and noting the respondent for default. The appellant did not apply for judgment of an order granting access to T. He let the matter lie dormant for several years during which he had no access to T. T was brought up believing that M.G. was his father.

Finally, in 2005, the appellant brought a motion seeking access to T. At this point, he had not seen T for five years and was a stranger to T. The respondent resisted the application, raising the appellant’s criminal record (for which he has since received a pardon) and allegations of abusive behavior during their relationship. The Court, concerned with introducing the appellant, now a stranger to the child, into T’s life, ordered a focused access assessment and, in the interim, supervised access for the comfort and ease of T in getting to know his father.

The appellant took strong exception to the order for supervised access and, when the access report was presented, attacked it as biased. The access assessor recommended that T receive professional support in building a relationship with the appellant and also that the appellant take some counseling and attend an anger management course. The appellant ignored these recommendations and did not submit a proposed access schedule. The matter again lay dormant. [ 7 ] In July, 2006, the appellant again petitioned for access.

Wilkinson J. gave the appellant leave to return the matter to her once he had filed proof that he had sought counseling on the issue of reconnecting with his son. Instead of doing this he attempted to persuade another judge to deal with the matter. Ultimately, he did provide a letter from a psychologist, who saw no risk to T in unsupervised access, but agreed that it would nonetheless be prudent to start with supervised access. [ 8 ] In October, 2006, the respondent and M.G. moved to Calgary, Alberta, where M.G. had been offered a new position.

As it happens, much of the appellant’s intermittent employment, between film projects, has also been situated in Alberta. It appeared that this move would not in itself impede the appellant’s access to T. [ 9 ] At a pre-trial conference on December 7, 2006, the parties agreed to use the Sheriff King Centre for supervised visits once each month for three months. After this period, a progress report was to be submitted. The parties had at an earlier settlement conference agreed on sole custody of T with the respondent and to the terms of child support payable by the appellant to the respondent.

The appellant then refused to use the Sheriff King Centre, a service available to him free of charge, because he claimed he was advised by an employee of the Centre that it was used exclusively for persons with a history of violence. The respondent has consistently said this is not the case. However, supervised access was arranged with the assistance of a psychologist retained and paid by the appellant. These visits seemed successful, although they were sporadic. The first visit did not take place until April, 2007 and was followed by a five month gap before there was a request for another visit.

Three visits then occurred in September/October, 2007. [ 10 ] In October, 2007, the appellant served the respondent with a renewed application for unsupervised access. Service was effected in the presence of T. Ultimately, with the advice of the psychologist who had been supervising the visits, the Court decided to continue supervised access, but increased it to two visits of up to six hours each a week. The appellant now elected to use Paige House in Calgary for the visits. The first visit did not occur until April, 2008, six months after the Court’s order.

The visits continued on a sporadic basis, with gaps of up to five months between visits. The appellant eventually came into conflict with the staff at Paige House, resulting in another round of court applications. The Court gave the appellant permission to seek out another supervised access facility. He did not do so. The questions of unsupervised access and telephone access finally proceeded to trial in November, 2009. [ 11 ] In her judgment, Wilkinson J. noted that it was “beyond dispute” that T is a healthy, happy, well-adjusted child.

She had reservations about the ability of the appellant to restrain his hostility toward the respondent and her husband, examples of which are set out in detail in the judgment. She found that he has problems with impulse control and obeying the rules. She commented, “Like an ungainly child with no boundaries or sense of personal space, the petitioner careens from disaster to disaster, leaving chaos and havoc in his wake.

Dealing with him requires large reserves of patience.” She also accepted that he had a true and genuine longing to be a part of T’s life, and noted that he enjoyed a circle of accomplished friends who respect him and believe that he has much to offer as a parent. She concluded that there was no risk of physical harm to the child if the appellant were granted unsupervised access. At the same time, she noted that he was unlikely to adhere to a predictable access

schedule and that he always managed to find fault with any process put in place to facilitate access. She questioned whether these factors presented emotional risks for T. She concluded with this comment: [103] While the petitioner failed to measure up in terms of consistency or commitment, T. is nonetheless at an age where he has some capacity to form his own assessment of his father. If T. feels he has been denied that opportunity, either by the Court or others, he is in danger of forming an idealized image of his absent parent, one that bears little resemblance to reality.

Access is the right of the child, and T. has a right to discover for himself the strengths and weaknesses of his father’s character. If he is disappointed by what he sees, the petitioner can fault no one but himself. Accordingly, I make an order for unsupervised access, but one that must necessarily be limited due to the unpredictable calendar the petitioner prefers to operate on. [ 12 ] Wilkinson J. ordered unsupervised access to take place one weekend every two months, to be exercised in Calgary. The supervised exchange program at the Sheriff King Centre was to be used for all exchanges.

The appellant had submitted a letter after the trial indicating he was then willing to use that facility’s services. He was also granted weekly telephone access. [ 13 ] The respondent appealed that judgment. In its judgment, this Court expressed misgivings regarding unsupervised access to T, but deferred to the judgment of the trial judge ( 2010 SKCA 127 , 362 Sask. R. 261). The Court commented: [5] It is clear that despite the respondent’s erratic and sometimes immature conduct, the trial judge wanted to grant him an

opportunity to establish that he is capable of making “a smooth transition into his son’s life, in a mature and disciplined fashion, and that he could do so without creating divided loyalties for the child” (para. 102). If he fails to do so, he is at risk of his access to T. being materially reduced and perhaps extinguished. [ 14 ] In light of concerns expressed by the parties of how access could be carried out in a non-confrontational manner, this Court amended the access provisions to provide that Mr.

Hahn should have no direct or indirect contact with Ms Greschuk or her family except as specifically provided in the order to facilitate access. Access was to be arranged through the Sheriff King Centre in a way that involved no communication between the parties. It was to commence in December, 2010. [ 15 ] As it happened, the Sheriff King Centre was not available for the December 2010 visit, and the Town & Country Centre in Calgary was used instead. The visit took place and appears to have been successful.

However, it caused the appellant to renew his objections to use of the Sheriff King Centre and he refused, after that visit, to utilize that facility. The respondent refused to agree to using the Town & Country Centre, relying on the existing order of this Court and her own discomfort with any facility other than the Sheriff King Centre.

This, and the fact of T’s hospitalization for a ruptured appendix in the fall of 2010, led to the application that is now the subject of this appeal. [ 16 ] It is necessary here to add another observation about the appellant’s on-going conduct as a factor that must be taken into account in disposing of this appeal. Despite an explicit order from this Court to the contrary, the appellant has continued to send to the respondent mailed communications filled with abusive and arguably threatening content directed at herself and her husband.

He also has left at least one lengthy telephone voice mail message of the same tenor. When questioned about this during the hearing appeal, the appellant said only that he was “frustrated.” He made no indication that he intended to conform with court orders in the future. In fact, his disrespect for the Court, generally, and its processes and decisions was repeatedly expressed. Judges who have dealt with the parties in the past were repeatedly referred to in material submitted to the Court as biased, corrupt and incompetent “fools”.

After the conclusion of the appeal hearing, the appellant sent a long “summary” of his position, directed to the panel, purporting that it had been “requested”, without copying it to the respondent. This improper communication was not consulted or relied upon by the panel. During the appeal hearing, the appellant was permitted to speak at length and even to read documents attacking the respondent and her husband, as well as all judges of the Court of Queen’s Bench who have had dealings with the appellant. All of these attacks were, to put it mildly, intemperate.

Throughout this tirade, the respondent remained quiet. Nonetheless, her own oral submissions to the Court were constantly interrupted by the appellant, despite repeated admonishment from the bench. In short, the appellant has consistently shown himself to be a person filled with hostility and unable or unwilling to control his behavior, even where this has resulted in impossibility in exercising the access to T he claims to want. [ 17 ] Before turning to the issue of access exchange, the two other matters raised on this appeal should be addressed.

These are the question of the length of notice to which the appellant is entitled should T become seriously ill or injured, and an application the appellant has now brought that T be required to attend counseling. [ 18 ] On the first of these points, the chambers judge ordered that notice be given within 48 hours. The respondent has expressed her view that she is reluctant to have to deal with the respondent at the very time that she may be in the midst of a crisis involving a sick or injured child. The chambers judge enjoys discretion in making this decision.

In exercising that discretion, he clearly balanced the importance of notice to the non-custodial parent and the very legitimate concerns of the respondent, all to be assessed in the light of the best interests of the child. There is no basis for this Court to interfere with that decision. [ 19 ] The second issue arises out of an application by the appellant to present fresh evidence to this Court in the form, inter alia , of a video-tape of his last visit with T, in December, 2010, and audio recordings of telephone exchanges with T. These recordings are not supported by a sworn affidavit.

The video shows T being filmed performing a song. The audio portion records telephone exchanges between the appellant and T in which T indicates that he does not want to talk to the appellant, that he believes the appellant cares nothing for him, and in which he swears at the appellant.

The appellant submits that these recordings prove that the respondent is poisoning T against him and that the Court should intervene by requiring counseling for T. [ 20 ] While it is highly debatable whether this matter is properly before this Court, whether by way of a fresh evidence application or otherwise, not having risen out of or being related to the matter under appeal, we followed our usual practice of provisionally receiving the evidence subject to a subsequent ruling on its admissibility. In the result, we do not find it necessary to rule on the admissibility of the evidence.

In our view, while this evidence indicates some alienation on the part of T, it is not sufficient in any event to warrant an order by this Court at this time that he be subjected to counseling prior to attempts to sort out the access issues and giving the appellant one more chance to exercise restraint and maturity in building a relationship with T. [ 21 ] Turning, then, to the issue of access exchange, on this appeal, the appellant for the first time submitted that his use of the Sheriff King Centre was in fact impossible because that facility refused to deal with him.

Evidence of this was not put before the Court in a

proper manner.

Attached to the fresh evidence application is what appears to be a copy of an e-mail message from Diane Lorenz, of the Town & Country Youth and Family Services, to the appellant, dated 25 May, 2011, reporting a conversation with “ Hazel, manager at the Sheriff King Centre.” She continues, in part: Hazel told me she has not had a chance to have a meeting regarding your services, but told me that they had decided previously to not allow you to have access to the service because you had made some threats of inappropriate actions toward other male clients in their facility, on your last phone call and were extremely rude, although she said being rude was not the serious issue.

Hazel indicated she would not have a chance to discuss it further with anyone at her office until Friday afternoon. [ 22 ] At the hearing, this was supplemented by the appellant with another copy of a more recent e-mail. This document had not been properly submitted to the Court on this appeal, the appellant having simply filed in Queen’s Bench Family Division, rather than in this Court.

No copy of this document had been provided to the respondent, even though the appellant has covered the page containing the copy of the e-mail with his own writing alleging misconduct on her part (lying, breaking the law, false statements, deliberate lies to the court, and poisoning T against the appellant with false information). This e-mail also purports to report a conversation between the Town & Country staff member and a member of the staff of the Sheriff King Centre. It is dated Wednesday, the 14 th of December, 2011.

It reads as follows: Mr Hahn, I phoned Hazel, the Manager of the supervised visitation program at the Sheriff King Centre in Calgary, but only received her voice mail. I left her a message asking her to call and let me know if they would provide service for you at their centre to enable the safe transfer of your son to you for a visit in the community. I never heard back from Hazel, but Stacey from her office just called me and said that Hazel had forwarded my message to Stacey for her to handle. Stacey again asked what was the issue.

I stated you wanted to know if you were allowed to use their facility for the transfer of your son for a visit. Stacey said, “absolutely not”. We will not provide Chris Hahn with any service. She also added that if you called their centre again that they would call the police on you. However, if you are still in need of someone to transport your child from his home to a place in the community for you to have your visit with him, our agency would certainly be willing to accommodate. Diane Lorenz [ 23 ] Insofar as these unsworn documents establish anything, they would seem to indicate that Mr.

Hahn has, by his own conduct, sufficiently alienated the staff of the Sheriff King Centre that they are now at least reluctant to deal with him.

We have no further information about their position or its causes. [ 24 ] For her part, the respondent was not able to provide a compelling reason why it was necessary that the Sheriff King Centre, as opposed to some other facility, be used for the access exchange, apart from her personal comfort with that facility and a conviction that providing the appellant with another process would accomplish little but another round of applications when he eventually became dissatisfied with it. The record would indicate that the latter concern has considerable basis.

She was also not comfortable with the Town & Country facility because she felt that its staff had become advocates for the appellant. She said that her conversations with staff at the Sheriff King Centre indicated that they would facilitate the exchange if the appellant improved his conduct. [ 25 ] The appellant filed no other information in relation to the Town & Country Youth and Family Services. He advised this Court that a “packet” of information about that facility had been filed on the chambers application that is the subject of this appeal, but a search of that file has revealed no such information.

This Court therefore has no information as to the organization of that facility and no way to access its appropriateness as an exchange service. [ 26 ] We are of the view that, as a general principle, where access to a child has been found, as in this case, to be in the best interest of the child, and it is necessary to provide an exchange procedure to avoid undue conflict that would harm the child, all reasonable efforts must be made to find a facility with which both parties are comfortable.

However, as insufficient information was put before either the chambers judge or this Court as to available alternatives, it is impossible for us, and was impossible for the chambers judge, to address this issue. This aspect of the problem is largely the result of the parties’ choice of forum for the continuing litigation of their on-going disputes. The respondent has resided in Calgary, Alberta with her family, including T, since October, 2006, over five years.

The appellant maintains no permanent residence, spends considerable time in Alberta, and advised this Court that he spends no more than a total of one month a year in Saskatchewan. All of the access with T is exercised in Calgary. There is no longer a real connection to Saskatchewan. Litigation in Saskatchewan is an added expense for both parties. Saskatchewan courts lack sufficient or indeed any reliable information about available facilities to deal with issues raised by the parties.

It is our view that the time has come to acknowledge that Saskatchewan is no longer the appropriate forum for litigation of these issues. [ 27 ] Accordingly, this appeal is dismissed without prejudice to the right of the appellant to raise the issue of access exchange in the appropriate forum. An order will issue from this Court that all future applications relating to the custody and access of T be brought in the appropriate court in the Province of Alberta.

DATED at the City of Regina, in the Province of Saskatchewan, this 28 th day of March, A.D. 2012. “Klebuc C.J.S.” Klebuc C.J.S. “Lane J.A.” Lane J.A. “Smith J.A.” _______________________ Smith J.A.