You reap what you sow.
The Applicant in the recent Alberta Court of Appeal decision of VMB v. KRB, 2014 ABCA 334 found this out the hard way.
In VMB the court dealt with an appeal by a mother from a Court of Queen's Bench decision by Justice D.K. Miller. The facts of the case are that the parties were married from 2000 to 2010. They had two children as a result of the marriage, now aged 14 and 12. In August 2012 an Order was granted by a chambers judge which gave a detailed access plan and provided for joint custody of the children. The parties were unable to communicate and in October 2012 further detail was added to the Order with a view to "force, cajole, and encourage [the mother] to follow through on access".
Suffice to say mom was not cajoled.
In November 2012 the father brought another application to enforce his access time with the children. At that point the judge directed that counsel for the children be appointed and ordered an expedited oral hearing on the matter. In April 2013, after the oral hearing, the trial judge granted the divorce and made a very detailed temporary corollary relief order. It provided for joint custody and gave detailed directions for the reintegration of the father through the summer of 2013. The judge was clear, the order was temporary and to test the waters to see if the parties would be able to communicate. After further hearings in June 2013 and October 2013 the trial judge made the order final. The judge held that the summer access regime had failed and the blame could be squarely placed on the mother.
What did she do? Well, the trial judge did not mince words.
Justice Miller attributed the failure of summer access on the mother's unwillingness to make it work. Furthermore, he colored her behavior as being "extreme conduct", and "explicit behavior and implicit behavior to do anything and everything to thwart the children's access to their father." The Divorce Act has legislated that, absent a reason to the contrary, parties ought to have maximum contact with both parents. When evaluating the mother's conduct in light of that particular statutory provision the court held that the mother had "absolutely no interest in adhering to the principles set forth by 'Parliament' to maximize contact between the children and both parents."
Some of the mother's conduct included:
The mother gave live evidence under oath. Speaking of that evidence Justice Miller held:
In my view, the [appellant mother] does not have a realistic view of reality or of the children's world, nor does she have their best interests at heart. Truth is an elusive concept for [her]. I have heard her testify, and I do not find her to be a credible or reliable witness... I simply cannot believe her.
You hear that from a judge and as a lawyer you cringe.
At the end of the day Justice Miller flipped the arrangement. He made the father the primary caregiver. He relied again on the best interests of the children as part of the underpinning of his decision. He also placed reliance on section 16(10) of the Divorce Act, which requires an inquiry into which parent will promote/facilitate access.
The mother appealed the decision. The Court of Appeal, in a unanimous 3-0 decision, dismissed the appeal. They held the trial judge correctly applied the legal tests and his decision was within the range of reasonable solutions available.
This is a great decision and in line with the view of most judges. Often time you will see judges the most frustrated and angry when dealing with these types of situations. Recently, I dealt with a similar situation, and Justice Strekaf was unequivocal with the mother who was impeding access: Anymore alienating behavior and the custodial parent would be switched. This was enough of a warning and access for my client has been much smoother since.
Unfortunately the mother in VMB was not so quick to learn.
As you make your bed, so you must lie in it.
The Applicant in the recent Alberta Court of Appeal decision of VMB v. KRB, 2014 ABCA 334 found this out the hard way.
In VMB the court dealt with an appeal by a mother from a Court of Queen's Bench decision by Justice D.K. Miller. The facts of the case are that the parties were married from 2000 to 2010. They had two children as a result of the marriage, now aged 14 and 12. In August 2012 an Order was granted by a chambers judge which gave a detailed access plan and provided for joint custody of the children. The parties were unable to communicate and in October 2012 further detail was added to the Order with a view to "force, cajole, and encourage [the mother] to follow through on access".
Suffice to say mom was not cajoled.
In November 2012 the father brought another application to enforce his access time with the children. At that point the judge directed that counsel for the children be appointed and ordered an expedited oral hearing on the matter. In April 2013, after the oral hearing, the trial judge granted the divorce and made a very detailed temporary corollary relief order. It provided for joint custody and gave detailed directions for the reintegration of the father through the summer of 2013. The judge was clear, the order was temporary and to test the waters to see if the parties would be able to communicate. After further hearings in June 2013 and October 2013 the trial judge made the order final. The judge held that the summer access regime had failed and the blame could be squarely placed on the mother.
What did she do? Well, the trial judge did not mince words.
Justice Miller attributed the failure of summer access on the mother's unwillingness to make it work. Furthermore, he colored her behavior as being "extreme conduct", and "explicit behavior and implicit behavior to do anything and everything to thwart the children's access to their father." The Divorce Act has legislated that, absent a reason to the contrary, parties ought to have maximum contact with both parents. When evaluating the mother's conduct in light of that particular statutory provision the court held that the mother had "absolutely no interest in adhering to the principles set forth by 'Parliament' to maximize contact between the children and both parents."
Some of the mother's conduct included:
- Coaching the children to call the father by his first name instead of calling him "dad"
- Showing up during the father's access time
- Changing the children's last name, contrary to a court order
- Moving to another municipality without consent or reasonable explanation
- Refusing to provide particulars to the father about the children's health
The mother gave live evidence under oath. Speaking of that evidence Justice Miller held:
In my view, the [appellant mother] does not have a realistic view of reality or of the children's world, nor does she have their best interests at heart. Truth is an elusive concept for [her]. I have heard her testify, and I do not find her to be a credible or reliable witness... I simply cannot believe her.
You hear that from a judge and as a lawyer you cringe.
At the end of the day Justice Miller flipped the arrangement. He made the father the primary caregiver. He relied again on the best interests of the children as part of the underpinning of his decision. He also placed reliance on section 16(10) of the Divorce Act, which requires an inquiry into which parent will promote/facilitate access.
The mother appealed the decision. The Court of Appeal, in a unanimous 3-0 decision, dismissed the appeal. They held the trial judge correctly applied the legal tests and his decision was within the range of reasonable solutions available.
This is a great decision and in line with the view of most judges. Often time you will see judges the most frustrated and angry when dealing with these types of situations. Recently, I dealt with a similar situation, and Justice Strekaf was unequivocal with the mother who was impeding access: Anymore alienating behavior and the custodial parent would be switched. This was enough of a warning and access for my client has been much smoother since.
Unfortunately the mother in VMB was not so quick to learn.
As you make your bed, so you must lie in it.