Chambers judge should not change parenting regime without viva voce evidence: Alta. Court of Appeal

Case involved inconclusive child abuse report, conflicting evidence and lack of urgency

Chambers judge should not change parenting regime without viva voce evidence: Alta. Court of Appeal

The Alberta Court of Appeal ruled that a final disposition of a parenting regime is improper when faced with a lack of urgency, conflicting affidavit evidence, a PN5 report inconclusive as to child abuse, and absence of viva voce evidence.

In Chambers v Nyhus, 2022 ABCA 287, Danielle Chambers and Malin Nyhus were married in 2016. They had one child during the marriage. They separated in 2019, however, and adopted an informal arrangement where the child resided with the mother and the father had parenting time.

In May 2021, the father refused to return the child after his parenting time, alleging possible child abuse. Several days later, he sought primary care and decision-making for the child. The mother consented to an interim order with those terms pending completion of a Practice Note 5 assessment.

Once the PN5 form was filled out, Child Services appointed an investigator to screen the allegations. If warranted, an investigation is conducted, and a report is prepared and sent to the judge. If not, a report to that effect will be prepared and sent to the judge.

The parties learned months later that the father’s allegations were not investigated. The alleged perpetrator was a six-year-old child outside the mother’s home. Further, since the parties’ child was three years old at the time, it was not appropriate to interview him.

The judge advised the parties to proceed as they saw fit. The mother sought primary parenting time, which the father opposed. He disputed the investigator’s assertion that he did not make allegations against the mother’s stepfather, against whom he obtained a restraining order.

The chambers judge made a final parenting order granting the mother’s application and directed the child to be returned. The father refused to comply with the direction. He sought a stay of the order, but it was dismissed.

On appeal, the father alleged the conflicting affidavit evidence, procedural unfairness, and insufficient and unreasonable decisions.

The appellate court allowed the appeal.

Despite the lack of urgency, the chambers judge made a final parenting order in the face of conflicting affidavit evidence about parenting and pending allegations of sexual assault involving the child, said the court.

“[A] chambers judge should refrain from making substantial changes to a parenting regime without the benefit of viva voce evidence,” said the court, especially when an interim adjustment would have been appropriate.

In this case, the appellate court ruled that viva voce evidence was required due to the material conflicts in the evidence and that the PN5 report was inconclusive regarding sexual assault. Thus, the court said that the chambers judge erred by proceeding to a final disposition, given conflicting affidavits and absence of viva voce evidence.

The appellate court allowed the appeal, vacated the chambers judge’s order, and made the same interim order pending further direction by the lower court.

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