Daughter, put in care of Child and Family Services, alleged abuse by father
The Alberta Court of Appeal dismissed a father’s appeal of two interim decisions upon finding that the trial judge intended to clear the way for Child and Family Services (CFS) to fulfill its role of keeping his daughter safe.
In TRS v JVS, 2025 ABCA 313, the parties had a daughter born in 2016, divorced, and obtained a divorce judgment with custody provisions in Alberta in December 2018. They eventually left the country.
The appellant father resided overseas, while the respondent mother lived in the US. A custody agreement granted the father sole custody.
After disagreements over parenting, the mother commenced proceedings in the US and Alberta, including a 2021 trial before the Alberta Court of King’s Bench regarding the custody agreement’s validity and the Alberta court’s jurisdiction over the child’s parenting.
A trial judge determined that the custody agreement was valid and that the Alberta court lacked jurisdiction over applications to vary parenting because none of the family members habitually resided there. The father won $68,279.43 in enhanced costs on top of $2,000 in costs of the previous Alberta proceedings.
In July 2023, the mother applied to make the Court of King’s Bench assume jurisdiction over the parenting issues based on information that the child might have enrolled in an Alberta school.
A chambers judge dismissed this application, ordered the mother to pay $8,000 in enhanced costs, and banned her from further applying before the court without paying all costs or obtaining permission to file additional applications.
In October 2024, after a trip to Calgary, authorities arrested the father at the airport as he and his child were about to board an overseas flight, charged him with various offences, and remanded him into custody.
After going into the care of CFS, the daughter alleged abuse by her father. Authorities granted the father judicial interim release but prohibited him from contacting the child.
On Dec. 5, 2024, the parties appeared before the Alberta Court of Justice and consented to the CFS director maintaining initial custody of the daughter.
On Dec. 12, 2024, a trial judge of the Court of King’s Bench made two interim rulings to suspend the July 2023 order requiring the mother to pay costs or obtain leave before bringing additional proceedings and the enforcement of his costs order.
The trial judge noted that:
- The daughter was in the care of CFS and in need of support, counselling, and a safe environment
- The father was on remand and, if released, would likely be subject to a no-contact order over the child
- The mother, living in the US, would need to travel to Alberta to attend court or communicate personally with CFS or the child
- There was an income disparity in the father’s favour when the court awarded him trial costs
The father appealed the two interim decisions and applied to admit fresh evidence.
Interim rulings upheld
The Court of Appeal of Alberta dismissed the appeal and the fresh evidence application
First, the appeal court acknowledged that the trial judge did not specifically mention the elements of the test in RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311, 1994 CanLII 117 (SCC).
However, the appeal court ruled that the trial judge:
- addressed the facts that would inform the test’s elements to find it appropriate to suspend enforcement of the trial costs order and let the mother bring an application
- sought to “clear the way” for the CFS and the Alberta Court of Justice to safeguard the daughter and reach a determination
- made no legal errors
- was entitled to follow the path he did based on the record and the urgent, serious, and anomalous circumstances in the case
- would have reached the same conclusion if he had explicitly addressed the RJR-MacDonald test
Second, regarding procedural fairness, the appeal court accepted that the trial judge dealt with an irregular process, given that he granted relief on his own motion, the parties did not formally seek such relief, and the father had no chance to respond before the issuance of the rulings. However, the appeal court saw no breach of procedural fairness in the circumstances.
Next, the appeal court noted that it would have exercised the curative proviso in r 14.75(2) of the Alberta Rules of Court, Alta Reg 124/2010, if it had seen reviewable errors in the two appeal grounds.
Lastly, the appeal court concluded that the father’s proposed fresh evidence – specifically, the mother’s failure to file a jurisdictional application and his judicial interim release – would not have impacted the outcome or met the test in Palmer v The Queen, [1980] 1 SCR 759, 1979 CanLII 8 (SCC).
