Hearn v. Hearn, 2004 ABQB 75

• Judge: Slatter, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 09, 2004
• Citations: 2004 ABQB 75;(2004), 352 A.R. 260 (QB)

Hearn v. Hearn (2004), 352 A.R. 260 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. FE.076

Beverley Christine Hearn (plaintiff) v. Michael Donald Hearn (defendant)

(4801 114926; 2004 ABQB 75)

Indexed As: Hearn v. Hearn

Alberta Court of Queen's Bench

Judicial District of Calgary

Slatter, J.

February 3, 2004.

Summary:

A husband and wife separated and entered into minutes of settlement respecting all matrimonial issues. The agreement provided for joint custody and shared parenting of the two children of the marriage. The wife was to keep the matrimonial home located in Canmore and continue operating a bed and breakfast and renting out rooms. Four days after signing the agreement, the wife advised the husband that she was selling the home and relocating to Medicine Hat with the children. The husband applied to prevent the wife from relocating with the children. The wife cross-applied for primary residential care of the children and permission to move with the children. Meanwhile, the wife sold the matrimonial home and moved to Medicine Hat. The children stayed in Canmore with the husband. The wife had access on alternating weekends.

The Alberta Court of Queen's Bench granted the husband primary residential care of the children. However, the court refused to displace the minutes of settlements and granted an order for joint custody and shared parenting. If the wife moved back to Canmore, the shared parenting regime could resume. The court dismissed the application to move the children to Medicine Hat. The wife was entitled to reasonable and generous access to be specified by the parties.

Family Law - Topic 1842

Custody and access - Custody agreements - Variation of - The Alberta Court of Queen's Bench held that the material change of circumstances test set out in s. 17 of the Divorce Act did not apply to agreements over custody that were not incorporated into an order - The appropriate test was that set out in Miglin v. Miglin (S.C.C.) for the variation of support agreements - The court summarized the test as follows: "1. At the first stage a) were there any circumstances surrounding the negotiation of the agreement that would cause the court to discount it? b) does the substance of the agreement substantially comply with the best interests of the children? A wide range of custody arrangements would satisfy this part of the test, and the court should be aware that the parents are usually in the best position to decide what is in the best interests of the children, and the court should remember the importance of them settling their own disputes. 2. At the second stage a) does the agreement still reflect the intentions of the parties? Have any unforseen changes in circumstances undermined the parties' agreement? b) given such changes, is the agreement still in substantial compliance with the best interests of the children? Even if some change is warranted, the agreement can still give some indication of the expectations of the parties about the best interests of the children." - See paragraphs 30 to 42.

Family Law - Topic 1842

Custody and access - Custody agreements - Variation of - In an application to vary a custody arrangement provided for in a settlement agreement, the Alberta Court of Queen's Bench stated that "... the parties cannot by agreement oust the jurisdiction of the court. If the parties agreed on a custody and access regime that would compromise the best interests of the children, the court always has a discretion to refuse to enforce it. However, in many if not most situations it is in the best interests of the children that the parents come to their own agreement about custody and access, and not that the court impose a custody and access regime on the family. The parents usually know the needs of the children better than the judge. In this respect, the best interests of the children, and the need for finality in the resolution of disputes run concurrently. As I have noted, what is in 'the best interests of the children' usually encompasses a wide variety of viable options; it is not an ultimate truth that can be determined with exact precision. Where the parties have selected one of several viable alternatives, the court should be slow to second-guess the parties and impose a different regime absent some risk to the children or a material change in circumstances." - See paragraph 65.

Family Law - Topic 1842

Custody and access - Custody agreements - Variation of - A mother applied to vary an agreed upon joint custody and shared parenting arrangement to permit her to move with the children - The Alberta Court of Queen's Bench stated that the children's best interests could not be completely divorced from the parents' interests - Where variation of joint custody was in issue both parents' views were entitled to great respect and the most serious consideration - Furthermore, when the parties have agreed to a shared parenting regime that implicitly limited mobility, that too was entitled to great respect - Also, the comment in Gordon v. Goertz (S.C.C.) that, generally, disrupting the relationship of the child and primary caregiver would be more detrimental to the child than reduced contact with the non-custodial parent, had less force where there was shared parenting and joint custody - The parents' personal decisions and commitments could not be removed from the equation and always gave the background to the analysis of the best interests of the children - See paragraph 74.

Family Law - Topic 1842

Custody and access - Custody agreements - Variation of - A settlement agreement provided for joint custody and shared parenting of two children of the marriage - The wife was to keep the matrimonial home in Canmore, and continue to operate a bed and breakfast and rent out rooms - Four days after signing the agreement, the wife advised the husband that she was relocating to Medicine Hat - The wife sought permission to take the children - The Alberta Court of Queen's Bench refused to discount the settlement agreement on the basis that the wife had signed under duress - The duress complained of was partly economic duress resulting from the bed and breakfast not generating sufficient revenue - The husband was never asked for additional financial support and was not clearly put on notice that the alleged duress was so severe that the wife had to move - Any emotional vulnerability was experienced by both parties - The agreement was not oppressive, unfair or one-sided - See paragraphs 43 to 54.

Family Law - Topic 1842

Custody and access - Custody agreements - Variation of - A settlement agreement provided for joint custody and shared parenting of the parties' two children - The wife was to operate a bed and breakfast out of the matrimonial home in Canmore - Four days after signing the agreement, the wife advised the husband that she was relocating to Medicine Hat - The wife sought permission to take the children - Meanwhile, she moved without the children - The youngest child had a strong emotional attachment to the wife - The oldest child preferred to stay in Canmore - The Alberta Court of Queen's Bench concluded that the custody regime under the agreement was within the range of solutions that were, at the time of execution, in the children's best interests - The wife could not argue that the agreement no longer reflected the parties' original intention on the basis that the bed and breakfast was not financially viable where she had reached that conclusion before signing the agreement - It was inappropriate to separate the children - Having the children remain with the husband was within the range of the solutions that was in their best interests - There were no reasons to discount the agreed upon shared parenting regime in Canmore - The court granted the husband primary residential care - The joint custody and shared parenting arrangement was to continue - If the wife returned to Canmore, the shared parenting could resume - See paragraphs 64 to 76.

Family Law - Topic 1843

Custody and access - Custody agreements - Effect of - [See second Family Law - Topic 1842 ].

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare of child paramount - Section 16(8) of the Divorce Act provided that "In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child." - The Alberta Court of Queen's Bench stated that "Similar wording is found in s. 17(5). In these sections Parliament sends a strong message that the welfare of children is to predominate. But the word 'only' should be read as applying primarily to the word 'interests'; it is designed to negate the suggestion that the parents have any 'right' or 'legally protected interest' over the children that must be balanced with the interests of the children ... The section is not intended to say that autonomy, finality and certainty are not values to be considered in custody disputes. The children of separating families are unwitting participants in the legal process, and they too have an interest in finality and the promotion of settlements." - See paragraph 40.

Family Law - Topic 1888

Custody and access - Considerations in awarding custody - Separation of siblings -[See fifth Family Law - Topic 1842 ].

Family Law - Topic 1948

Custody and access - Variation of custody and access rights - Change of residence of child - [See third and fifth Family Law - Topic 1842 ].

Family Law - Topic 1951

Custody and access - Variation of custody and access rights - Welfare of child - [See second, third and fifth Family Law - Topic 1842 ].

Family Law - Topic 2077

Custody and access - Joint custody - Variation of - [See third and fifth Family Law - Topic 1842 ].

Family Law - Topic 2082

Custody and access - Shared parenting - Considerations (incl. best interests of the child) - [See third and fifth Family Law - Topic 1842 ].

Family Law - Topic 3351

Separation agreements, domestic contracts and marriage contracts - Effect of agreement - In custody actions - [See all Family Law - Topic 1842 ].

Family Law - Topic 3388

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Duress or undue influence - [See fourth Family Law - Topic 1842 ].

Family Law - Topic 3388

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Duress or undue influence - Minutes of settlement covered all matrimonial issues and included a certificate of independent legal advice that stated that it was signed without duress - The settlement provided for a joint custody and shared parenting arrangement - The wife sought permission to move from Canmore to Medicine Hat with the children, asserting that she signed the settlement under economic duress caused by her bed and breakfast not generating enough income - The wife asserted that the independent advice certificate was mandated by s. 38 of the Matrimonial Property Act and only applied to the settlement's matrimonial property provisions - The wife proceeded on the assumption that if she could prove actual duress, the certificate would not estop her from making the argument - The Alberta Court of Queen's Bench held that the wife was estopped from arguing duress - Although a s. 38 certificate only had statutory effect with respect to matrimonial property agreements, it was common for custody, support and property settlements to be in one agreement - It was untenable that an agreement could be deemed to be voluntary as to some clauses, but not as to others - At a minimum, the s. 38 certificate and certificate of independent advice should create a common law estoppel in cases where the alleged duress did not arise from any deliberate or direct action of the other spouse - See paragraphs 55 to 63.

Family Law - Topic 3391

Separation agreements, domestic contracts and marriage contracts - Grounds for setting aside - Lack of independent legal advice - [See second Family Law - Topic 3388 ].

Cases Noticed:

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201; 224 D.L.R.(4th) 193; 2003 SCC 24, appld. [para. 16].

Gordon v. Goertz, [1996] 2 S.C.R. 27; 196 N.R. 321; 141 Sask.R. 241; 114 W.A.C. 241, consd. [para. 17].

Roebuck v. Roebuck, [1983] 5 W.W.R. 385; 45 A.R. 180; 26 Alta. L.R.(2d) 289 (C.A.), refd to. [para. 19].

Cormier v. Cormier (1983), 49 A.R. 232 (Q.B.), refd to. [para. 19].

Stewart v. Stewart (1990), 112 A.R. 137; 30 R.F.L.(3d) 67 (C.A.), refd to. [para. 19].

Cote v. Cote (1996), 9 O.T.C. 61 (Gen. Div.), refd to. [para. 19].

Pritchard v. Pritchard (1998), 73 O.T.C. 300 (Gen. Div.), refd to. [para. 19].

Duval v. Duval, [2002] O.J. No. 3536, refd to. [para. 19].

Willick v. Willick, [1994] 3 S.C.R. 670; 173 N.R. 321; 125 Sask.R. 81; 81 W.A.C. 81, refd to. [para. 20].

Woodhouse v. Woodhouse (1996), 91 O.A.C. 91; 29 O.R.(3d) 417 (C.A.), leave to appeal refused (1997), 209 N.R. 80; 99 O.A.C. 80 (S.C.C.), refd to. [para. 22].

L.E.G. v. A.G., [2002] B.C.T.C. 970; 2002 BCSC 970, refd to. [para. 23].

Tumino v. Tumino, [2002] O.J. No. 4696, refd to. [para. 24].

Young v. Young (2003), 168 O.A.C. 186; 63 O.R.(3d) 112 (C.A.), refd to. [para. 25].

M.E.O. v. S.R.M., [2003] A.R. Uned. 288; 39 R.F.L.(5th) 361; 2003 ABQB 362, refd to. [para. 29].

B.G.D. v. R.W.D. (2003), 181 B.C.A.C. 312; 298 W.A.C. 312; 226 D.L.R.(4th) 378; 2003 BCCA 259, refd to. [para. 32].

L.G. v. G.B., [1995] 3 S.C.R. 370; 186 N.R. 201, refd to. [para. 38].

Kinch v. Walcott, [1929] A.C. 482 (P.C.), refd to. [para. 38].

Wensel, Re, [1977] 1 W.W.R. 32; 5 A.R. 379 (C.A.), refd to. [para. 38].

Lund v. Walker, [1931] S.C.R. 597, refd to. [para. 38].

Rimer v. Rimer (1980), 26 A.R. 451 (Q.B.), refd to. [para. 38].

Corbeil v. Bebris (1993), 141 A.R. 215; 46 W.A.C. 215; 49 R.F.L.(3d) 77 (C.A.), refd to. [para. 57].

Caisse Populaire de Morinville Savings and Credit Union Ltd. v. Lambert (1984), 58 A.R. 113; 40 Alta. L.R.(2d) 206 (C.A.), refd to. [para. 58].

Central Trust v. Abugov - see Central Trust Co. v. Friedman et al.

Central Trust Co. v. Friedman et al. (1990), 107 A.R. 226; 74 Alta. L.R.(2d) 89 (C.A.), refd to. [para. 58].

Krall v. Krall (1999), 254 A.R. 201 (Q.B.), refd to. [para. 58].

Alberta v. Ronsdale Construction Inc. et al. (1984), 58 A.R. 115; 35 Alta. L.R.(2d) 44 (Q.B. Master), refd to. [para. 58].

Senstad v. Makus, [1978] 2 S.C.R. 44; 17 N.R. 361; 6 A.R. 451, refd to. [para. 61].

Amyotte v. Urchyshyn (1978), 13 A.R. 27; 6 Alta. L.R.(2d) 26 (T.D.), refd to. [para. 61].

Kraus v. Frith et al. (1996), 182 A.R. 108 (Q.B. Master), refd to. [para. 61].

Statutes Noticed:

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 16(8), sect. 17(5) [para. 40].

Counsel:

Richard M. Harding (Macphail Harding), for the respondent/plaintiff;

John F. Schneider (Canmore Legal Services), for the applicant/defendant.

Slatter, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, heard this application on January 9, 2004, and delivered the following reasons for judgment at Edmonton, Alberta on February 3, 2004.