Welcome from Vogel LLP We are pleased to share the Spring 2015 Edition of “The Vogel Insider” with you. In this edition, you can find information about our recent

successful cases, Vogel LLP lawyer spotlights, interesting articles related to our industry and highlights of our work in the community.

Although we were working through an aversive situation, my lawyer and his staff created as pleasant an experience as possible. They guided me through the situation with knowledge and support. I highly recommend Vogel LLP and would definitely seek their support if I had

to do it all over again. ~ M.F.

TH

EIN

TH

IS IS

SU

E

VOGEL PARTNER WINS VOLUNTEER AWARD

SUCCESS FOR VOGEL LLPIN DIFFICULT

CUSTODY CASECHEERS TO CHARITY

SPRING 2015 ISSUE

VOGEL INSIDER

Visit our website at www.vogel-llp.ca

Follow us on

by Brett Coleman

In this case, the fact that the Mother was more likely than the Father to maximize contact and promote a meaningful relationship between the child and the access parent was a strong factor in the Justice’s decision to maintain the status quo (primary care with the Mother), despite the 10-year old child’s expressed wishes to the contrary.

Facts

The parties in this case were married in 2002 and separated in 2006. From separation until January 1, 2014, both parents resided in Calgary. Their son K resided primarily with the Mother and the Father had specified access.

In March 2010, the Father unsuccessfully applied for sole custody of K. In January, 2013 the Father applied for shared parenting, but his application was struck for failure to comply with filing deadlines. In February 2013, the Father’s new partner applied for Guardianship of K. Her application was dismissed. In June 2013, the Father again applied for shared par-enting.

In the fall of 2013, the Honourable Justice B.E.C. Romaine was assigned as the parties’ case manage-ment Justice. By that point in time, counsel had been appointed for the child by court order.

The Father’s Application for shared parenting was heard December 2, 2013, and shared (week on, week off) parenting was ordered to commence January 1, 2014.

On May 22, 2014, barely five months into the shared parenting regime, the Father advised the Mother via email that he was moving to Innisfail, Alberta effective July 1, 2014. He began the email with “I just wanted to let you know about a couple of changes that will be affecting you”. The email advised that the Father and his new partner had already purchased a house in Innisfail and proposed that the child attend school and reside primarily in Innisfail effective September 2014, listing a number of reasons why he felt the school in Innisfail would be better for the child.

It was clear from the Father’s oral submissions at the hearing that the move to Innisfail was primarily financially motivated, but also that the Father and his new partner preferred the lifestyle associated with a smaller center. When questioned during the hearing, the Father admitted that he had not actually consid-ered K, nor the effect the move would have on K’s time with his Mother, in his decision to relocate. He had primarily considered the interests of his new fam-ily as a whole, which included his new partner and two other children.

It is important to note that the 10-year-old child’s own commu-nicated wishes, which had been repeatedly submitted to the court by his legal counsel for a number of months prior to the hearing, was to reside primarily with the Father.

The self-represented Father had not realized he could not simply make a unilateral change to the parenting arrangement, and was required to bring a mobility appli-cation. The Father filed an applica-tion for primary care of the child on July 18, 2014. The Mother filed her cross-application for primary care on August 28, 2014. The mat-ter was not heard until December 3, 2014, and the child remained in Calgary with the Mother in the interim.

Success for Vogel LLP in Difficult Custody Case

Ind

ust

ry S

po

tlig

ht

Norm Machida, Q.C. joined Vogel LLP on a part time basis as Counsel in 2014. We are thrilled to have Norm, and his expertise in complicated liti-gation, on our team.

Norm Machida, Q.C. Vogel LLP Employee Retreat

analysis

Madam Justice Romaine heard the matter on December 3, 2014, and reserved her decision. She released a very well-reasoned decision on December 29, 2014.

In her decision, the Justice carefully considered the leading case on mobility applications, Gordon v. Goertz. Upon delving into a fresh inquiry as to the child’s best interests she determined that it was in the child’s best interests to remain in Calgary in his Mother’s primary care.

The court found that despite unfounded and dis-ingenuous allegations as to the Mother’s parenting abilities advanced by the Father, it was clear that both parents were good, loving parents. It was also clear that the child had a strong bond with both parents.

Having considered section 16(1) of the Divorce Act, the court had concerns regarding the Father’s willingness to maximize contact between the child and the Mother. Some of the reasons for this concern are as follows:

• The fact that the Mother was willing to offer a much more generous access schedule to the Father, than was the Father if he was granted primary care;

• The Father’s consistent failure to respect the right of first refusal clause in the parties’ court order;

• The Father’s unwillingness to be flexible and accommodating with respect to the parenting schedule, even when the Mother had recently afforded him the very same courtesy she was then requesting back;

• The Father’s lack of willingness to support the child’s relationship with his extended maternal family;

• The fact that the Father was clearly unwilling to encourage contact between the Mother and the child during his parenting time, even when away with the child for extended holidays.

The Justice also noted the following additional concerns:

• The role of the Father’s new partner, as there were a number of noted instances that demonstrated a lack of respect for the Mother’s parenting rights;

• Potentially inappropriate discussions the Father may have had with the child, throughout the litiga-tion;

• The Father’s apparent unwillingness to communi-cate with the Mother on parenting issues.

• The Mother argued that the child’s expressed pref-erence of residing with his Father ought to be given minimal weight, given that the child is unable to assess the implications of this proposed change of parenting, in particular the effect it would have on

his relationship with his Mother. The court agreed.

conclusion

The Court concluded the Father’s conduct was akin to “a failure to appreciate any viewpoint other than his own and any interests other than the interests of his new family” and that the Father “finds it difficult to consider or respect the Mother’s position as K’s mother and long-time primary care-giver.”

Ultimately, the court determined that the past was, in the circumstances, a good predictor for the future and that the determining factor was that the child was more likely to benefit from maximum contact with both of his parents if his Mother were granted primary care.

Norm Machida, Q.C. joined Vogel LLP on a part time basis as Counsel in 2014. We are thrilled to have Norm, and his expertise in complicated liti-gation, on our team.

The staff at Vogel LLP were treated to a Retreat from October 16 – 19, 2014 in Phoenix, Arizona. It was a wonderful opportunity to bond and participate in a variety of activities such as attending a Phoenix Suns basketball game, going to a gun range, having a 3 course dinner while watching the movie “The Judge”, relaxing pool time, shopping and of course wining and dining at several extraordinary restaurants.

www.vogel-llp.ca

1050 Southland Plaza10201 Southport Road SWCalgary, AB T2W 4X9

Phone: 403.255.2636Fax: 403.253.8036Toll Free: 1.877.609.0216

by Aida Rafie

On May 2, 2014 I participated in a very special campaign, the Spinal Cord Injury Alberta’s (SCI Alberta or formerly the Canadian Paraplegic Association Alberta) Chair-Leaders event. Vogel LLP was a sponsor of this event and it was a truly eye-opening experience that both humbled and moti-vated me. I cannot commend SCI Alberta enough for organiz-ing such a fantastic endeavor.

SCI-Alberta is an organization whose mission is to empower persons with spinal cord injuries and other physical disabilities to achieve independence and full community par-ticipation. The organization focuses on five core service areas in order to achieve its mission: rehabilitation support and ser-vice coordination, community development and systematic change, peer program, information services and active living. Through my work in personal injury, I have seen for myself how important those five core services can be to those suf-fering from spinal cord and physical injuries.

Chair-Leaders is SCI-Alberta’s annual awareness and fundraising campaign where business leaders and individuals from all areas spend a day in a wheelchair to experience a small piece of what it is like to try and complete a day like any other, but with accessibility and mobility barriers that you have never truly experienced before. This event sincerely changes one’s perception of what it is like living with a spinal cord injury or physical disability in a positive and insightful way.

While I was lucky enough to know that I would not have any major accessibility issues at my office, my first rumble with the “obstacle course” at the beginning of our day made me quickly realize that this was going to be even harder than I

thought. Things I never considered would be a challenge, including catching elevators or steering my way out of door frames, proved to be arduous undertakings. I will never look at small entry ways and hallways the same way again.

All in all, the Chair-Leaders event was a rewarding and challenging experience. I feel very lucky to have had the opportunity to participate. If you can get involved in this event, donate to the cause or even raise awareness on this issue, I would greatly encourage you to do so.

Watch out for this event and others like it during Spinal Cord Injury Awareness Month in May.

Kathryn Tweedie, Partner, was awarded the Alan D. Hunter Award for Excellence in Volun-teerism on October 30, 2014 at the Annual General Meeting and Volunteer Appreciation for Calgary Legal Guidance. Kath-ryn has been a volunteer with

Calgary Legal Guidance for 9 years and has had perfect attendance. With this award, she is recognized for her commitment to access to justice.

Cheers to Charity

Erica Pridham and Mike Vogel recently presented a cheque to the Calgary Health Trust.