APPEAL COURT HOLDS THAT APPELLANT’S RELIGIOUS BELIEFS DO NOT CONSTITUTE MENTAL UNFITNESS

The Alberta Court of Appeal allowed the appeal of a father who had come to court seeking an increased parenting schedule but was rebuffed by the chambers judge who criticized his religious views and suggested that he needed to address his mental fitness, two issues that were not raised by the children’s mother, or the experts that had been involved with the children and their parents. Volkman v. Volkman 2021 ABCA 151

The Reasons describe an initial interim order made on March 1, 2018 that provided the father with parenting time of one overnight per week and every second weekend. It also referred to the parties engaging in a Practice Note 7 Intervention with a specified expert, a process similar to a section 211 custody assessment in British Columbia. The Practice Note 7 expert recommended that the children attend counselling and made a referral, however, this counselling was delayed for a lack of funds. However, by November 2019 the expert sent a report to the court advising that a detailed parenting plan had been worked out, leaving only several unresolved issues, including the father’s request for increased parenting time. The doctor advised that he was closing the family’s file. 

In June 2020 the father brought an application for shared parenting on a weekly rotating schedule. He advised the court of the two-year counselling regime undertaken by the children on the expert’s recommendations, with their own dedicated counsellor, and requested an order that counselling continue.

His former wife brought a cross-application in July 2020 seeking to confirm the interim parenting order and obtain an order that the children’s father be barred from bring any further applications until the children’s counsellor had provided an opinion with respect to the father’s wish to increase his parenting time and the best interests of the children. She also alleged that the father spoke and behaved “inappropriately” to her and the children. 

On July 15, 2020 the court made a consent without prejudice order providing for shared weekly parenting throughout the summer months and ordered the children to continue their counselling.

The parties’ respective applications were heard on September 18, 2020 by which time the interim parenting schedule had been revived. At the commencement of the hearing the chambers judge advised the parties that she had read the material and then, before hearing a single word from counsel, said: 

“And the issue of whether the chambers judge – and that’s me – should be entertaining such an application without waiting for the court-ordered intervention to be completed is simple to me. No is the answer.”

She then stated: 

“Ms. Volkman, in her own affidavit, addresses this as to how – how is she supposed to prove blah, blah, blah? And my problem is I seriously question the premise that both parents are “fit, capable, and loving”. I have reviewed that premise as against the affidavit evidence, including his own, which relates to his deeds and to his mental health. And in saying so, it is his own words and deeds I refer to.”

 Not yet done, she criticized the father’s religious beliefs, which she said were “the foundation for the father’s attitude toward women and marriage”. This was followed by her question to father’s counsel: 

“…what do you say, having heard what would sound to your client, I’m sure, as a pretty harsh assessment?”

Not surprisingly, counsel was baffled, but steadfastly defended her client, who denied all the allegations. Counsel advised the court that no issues had been raised by the Practice Note 7 expert or the children’s counsellor. She then addressed the slur against the father’s faith and replied:

“These parents – these parties – if I could just say this – they met in church. They went to church. They had their children in church. They raised their children in that church. This is Monday morning remorse.”

Realizing where the judge was going with this, counsel advised that court that the parties had limited funds and could not afford an adjournment. She said:

“He only has so many benefits [to fund counselling]. Mom does not work. He is out of money. And I said: You’ll have to go ahead. He has approximately 35 percent of the time. You have indicated that he is no kind of parent. Obviously, he takes the kids camping. He does their homework. He makes them meals. He takes them to that awful church that the parties attended.” 

The judge ignored her entreaties and adjourned the hearing to a date four months hence; declared that she needed a psychiatric opinion on the father’s mental fitness, and seized herself of the matter. 

The father’s grounds of appeal focused on the judge’s unilateral imposition of orders that were neither sought nor plead; her misapprehension of the expert evidence; and a reasonable apprehension of bias. 

The appeal court allowed the appeal and remitted the matter back to the trial division, to go before a different judge. The court articulated the following conclusions:

  1. Subject to narrow exceptions, chambers judges are expected to confine themselves to the issues raised by the parties and not grant relief beyond what is claimed in the applications;
  2. The suggestion that the appellant was mentally unfit was not supported by the evidence. The father had enjoyed overnight parenting time for years and for four summers had shared week on/week off parenting. Presumably, the mother would not have consented to this parenting schedule if the father was not fit;
  3. The mother did not seek a reduction in parenting time, which would have been expected if the father was mentally unfit. The parties engaged with the professional expert for 17 months and he did not raise any issues regarding mental fitness or any other parenting concerns, neither did the children’s counsellor;
  4. While the chambers judge was critical of the appellant’s religious beliefs there was no evidence that his beliefs were a mental health issue. A difference in parenting styles does not make a parent mentally or otherwise unfit;
  5. The chambers judge misunderstood the roles of the expert, who had provided a report and closed his file, and the children’s counsellor, who was in a therapeutic relationship with the children and could not be expected to now become a forensic expert for the court.

This appeal was never a “close case”, or an attempt to interfere with the chambers judge’s inherent “discretion” in parenting matters. Most unfortunate is that the parties retained counsel, expended funds on a court hearing, and attended court, only to be compelled to bring an appeal and start over again. Fortunately, for this father, his counsel represented him well, and recognized the flaws in the judge’s orders. 

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