M.E.S. v. D.A.S., 2001 ABQB 1015

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 12, 2001
• Citations: 2001 ABQB 1015;(2001), 304 A.R. 112 (QB)

M.E.S. v. D.A.S. (2001), 304 A.R. 112 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. DE.011

M.E.S. (plaintiff) v. D.A.S. (defendant)

(Action No. 4810 013499; 2001 ABQB 1015)

Indexed As: M.E.S. v. D.A.S.

Alberta Court of Queen's Bench

Judicial District of Red Deer

Lee, J.

November 23, 2001.

Summary:

A wife had sole interim custody of the three children of the marriage and the husband had reasonable and generous access. The wife brought an application to impose restrictions and terms and conditions on the husband's access, specifying such access. The husband filed affidavits by two of the children, aged 14 and 12. The wife objected to the filing of the affidavits and to the children's direct or indirect involvement in the proceedings.

The Alberta Court of Queen's Bench held that evidence by the children should not be admitted or considered in the proceedings, regardless of their competency to testify, and that they should not even be subjected to an inquiry as to their competency. The court further ordered that the children should not be allowed to observe the court proceedings between the parties.

Courts - Topic 1404

Administration - Public access to judicial proceedings - [See first Courts - Topic 2004 ].

Courts - Topic 2004

Jurisdiction - Inherent jurisdiction (incl. parens patriae jurisdiction) - A wife had sole interim custody of three children aged 14, 12 and 10 - The wife brought an application to impose restrictions, terms and conditions on the husband's access - The Alberta Court of Queen's Bench held that the children should not be allowed to observe the court proceedings - The court's inherent jurisdiction to protect children was an exemption to the rule that court proceedings were open to the public - Even if the court determined that the children could give evidence, making them witnesses to the proceedings, it still had jurisdiction to exclude the children under its power to exclude witnesses during a hearing - Even if the court was inclined to allow the children to be present, the wife had sole custody and the primary authority to decide whether they should be present - Even if the husband was exercising access to the children at the relevant time, the exercise of access did not give the noncustodial parent the right to make major decisions affecting the child just because implementation of the decision would happen during the access visits - See paragraphs 55 to 64.

Courts - Topic 2004

Jurisdiction - Inherent jurisdiction (incl. parens patriae jurisdiction) - A wife brought an application to impose restrictions, terms and conditions on the husband's access to their three children - The husband filed affidavits by two of the children, aged 14 and 12 - The Alberta Court of Queen's Bench held that even if the court determined that the children were competent to give evidence, it still had to determine whether to admit such evidence under its inherent parens patriae jurisdiction - The court concluded that in this case the evidence by the children should not be admitted or considered in the proceedings, regardless of their competency to testify, and that they should not even be subjected to an inquiry as to their competency - See paragraphs 23 to 43.

Evidence - Topic 5544

Witnesses - Competency and compellability - Competency - Child of tender years - [See second Courts - Topic 2004 ].

Family Law - Topic 1869

Custody and access - Duties and rights of custodian - Power to make decisions without noncustodial parent's approval - [See first Courts - Topic 2004 ].

Family Law - Topic 2140

Custody and access - Evidence - Questioning of a child in private by judge - A wife brought an application to impose restrictions, terms and conditions on the husband's access to their three children, aged 14, 12 and 10 - An issue arose regarding the involvement of the children in the proceedings - The Alberta Court of Queen's Bench reviewed case law on the matter of informal interviews of children - The court stated that "the above cases all tend to the view that while the trial judge has the discretion to interview the children, this should not be done lightly, and a record should be kept of the interview. Further, if that information is to be relied upon as evidence, then the children should be witnesses to the proceedings rather than being interviewed" - The court concluded that the children should not be interviewed in this case - See paragraphs 53 to 54.

Family Law - Topic 2142

Custody and access - Evidence - Child as a witness in court - [See second Courts - Topic 2004 ].

Family Law - Topic 2155

Custody and access - Evidence - Affidavits - [See second Courts - Topic 2004 ].

Cases Noticed:

Sankey v. R., [1927] S.C.R. 436, refd to. [para. 15].

R. v. Bannerman (1966), 55 W.W.R.(N.S.) 257 (Man. C.A.), affd. (1967), 57 W.W.R.(N.S.) 736 (S.C.C.), refd to. [para. 16].

R. v. Deol, Gill and Randev (1981), 27 A.R. 510; 15 Alta. L.R.(2d) 62 (C.A.), refd to. [para. 16].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 25 C.R.(4th) 1; 85 C.C.C.(3d) 193, refd to. [para. 17].

LeBlue v. LeBlue (1997), 209 A.R. 227; 160 W.A.C. 227; 33 R.F.L.(4th) 118 (C.A.), refd to. [para. 26].

Sparks v. Sparks (1994), 159 A.R. 187 (Q.B.), refd to. [para. 28].

Fiorellino v. Fiorellino (1995), 18 R.F.L.(4th) 301 (Gen. Div.), refd to. [para. 31].

Jay v. Jay (1978), 4 R.F.L.(2d) 157 (Man. C.A.), refd to. [para. 32].

Wakaluk v. Wakaluk (1976), 25 R.F.L. 292 (Sask. C.A.), refd to. [para. 34].

Thuricke v. Moerike (1996), 150 Sask.R. 38 (Q.B.), refd to. [para. 38].

Reddin v. Reddin (1992), 94 Nfld. & P.E.I.R. 328; 298 A.P.R. 328; 39 R.F.L.(3d) 151 (P.E.I.C.A.), refd to. [para. 39].

Hamilton v. Hamilton (1989), 20 R.F.L.(3d) 152 (Sask. C.A.), refd to. [para. 45].

Uldrain v. Uldrain and Uldrain (1988), 14 R.F.L.(3d) 26 (Ont. C.A.), refd to. [para. 48].

Jandrisch v. Jandrisch (1980), 3 Man.R.(2d) 135; 16 R.F.L.(2d) 239 (C.A.), refd to. [para. 49].

Snell v. Haywood, [1947] W.W.R. 790 (Alta. C.A.), refd to. [para. 56].

Counsel:

Marilyn D. Slawinsky (Slawinsky Friesen), for the plaintiff wife;

The defendant husband appeared on his own behalf.

These matters were heard on October 12, 2001, before Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Red Deer, who delivered the following judgment on November 23, 2001.