Kong v. Tian, 2011 ABQB 174

Court of Queen ’ s Bench of Alberta Citation: Kong v. Tian, 2011 ABQB 174 Date: 20110317 Docket: FL03 25721 Registry: Edmonton Between: Kenny Lik Yau Kong Respondent (Plaintiff) - and - Hongxia Tian Applicant (Defendant) Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I.

Introduction [ 1 ] This is an application by the Defendant mother for sole custody or, alternatively, joint custody and primary residential care of her twin girls born August [...], 2010.

[ 2 ] I first heard this application on February 22, 2011. Dr. Neelam Mahil, a psychiatrist who had seen and treated the mother, provided a letter of September 28, 2010, which was placed before the Court. In that letter, Dr. Mahil stated: ...Based on my observations of Michelle’s mental state and also in terms of reasonable and well thought out plans she has put in place to help take care of her children, I do not have any safety concerns regarding her ability to manage at this time.

Indeed I feel it has been quite grievous and detrimental to her well being that she has been deprived visitation of her daughters over this past month... [ 3 ] The Plaintiff father opposed the application and placed significant emphasis at that time on the handwritten chart notes of Dr. Mahil. There were two entries which caused significant concern: 1. In the notes for August 31, 2010, there is a line with a symbol before the word “suicide thoughts”, the same symbol before the word “homicidal” and the same symbol before the word “infanticidal”; 2.

In the notes for September 7, 2010, there is a line with the words “passive death wish”, the same symbol before the words “suicidal intent/plan”, the same symbol before the word “homicidal” and the same symbol before the word “infanticidal”. [ 4 ] The symbol appeared in different configurations: ¢,ψ, ɸ . All parties and the Court believed that the writer’s intention was to convey the same meaning by way of these symbols: the conjunction “and”. Both counsel therefore believed that the notes meant that the mother had suicidal, homicidal and infanticidal thoughts. I also understood that to be the proper

interpretation of the symbols in question. [ 5 ] Notwithstanding Dr. Mahil’s statement that she had no safety concerns, I found that the letter followed too closely on the heels of the treatment notes of August 31 and September 7, 2010. Given my understanding of those notes, I found that they undermined the weight to be given Dr. Mahil’s opinion. [ 6 ] As a result, and placing great reliance on those treatment notes of August 31 and September 7, 2010, I denied the mother’s application to vary the parenting time as previously ordered by Browne J. on October 26, 2010.

That Order provided supervised access to the mother each Monday and Thursday from 11:00 am to 4:00 pm. [ 7 ] Following my oral decision of February 22, 2011, counsel for the mother forwarded a letter dated February 24, 2011 to me, copied to counsel for the father. In his letter, he advised that the symbol believed by all counsel and the Court to mean the conjunctive “and” in fact meant “not” and the intention of Dr. Mahil was to indicate that the mother was not suicidal, not homicidal and not infanticidal. Counsel forwarded a letter to Dr.

Mahil dated February 23, 2011 asking her to confirm that the symbol meant “not” and that such a symbol is well known in the pharmaceutical and medical world as meaning “not”. Dr. Mahil confirmed that this was, indeed, correct. The fact that the notes were handwritten and photocopied probably contributed to the confusion. Counsel then attended before me on February 25, 2011 and it was agreed that the application would be heard anew on March 10, 2011. [ 8 ] The following is my decision based on all of the information now before the Court, including the clarification provided by Dr. Mahil. II.

Additional Background [ 9 ] It is helpful to again review some of the other background circumstances.

[ 10 ] The Plaintiff father and Defendant mother began a common-law relationship in August 2007. The mother gave birth to twin girls on August [...], 2010 which were conceived by way of in vitro fertilization. Prior difficulties in the relationship had resulted in one separation in November 2008.

Allegations of verbal, emotional and physical assaults resulted in a final separation around August [...], 2010, approximately 12 days before the twins’ birth. [ 11 ] Following the twins’ birth, the mother developed double and blurred vision and though discharged on August [...], 2010, she returned to the hospital on August 18, 2010 for two days as she was unable to see anything and had blurred vision in every direction.

On August 22, 2010, the mother arranged for one of the twins to go to the father’s parent’s home for care as the baby had developed a fever and the father had offered to take care of the children while the mother was in the hospital. The mother went back to the hospital August 23, August 24 and August 25 for followup treatments. [ 12 ] While the mother was in the hospital, the father obtained a Restraining Order against her and it was served on her on August 25, 2010. The mother said that she could not read the Restraining Order because of her blurred vision.

The mother arranged for her cousin to drop off the twins with the father on August 27, 2010 and he has had primary residential care of the children since then. [ 13 ] Despite the Restraining Order (or because she could not read it) the mother called the father a number of times. After a contested review of the Order on September 17, 2010 it was confirmed for a further period of six months. [ 14 ] On October 5, 2010, Poelman J. granted the mother visitation with the children every second day.

This Order was varied by Browne J. on October 26, 2010 so as to provide supervised access by the mother every Monday and Thursday. On November 6, 2010, Verville J. granted a Consent Order declaring the parties to be joint guardians of the children. III. Decision Material Changes in Circumstances [ 15 ] The father argues that there has not been any material change in circumstance since Browne J.’s Order and the Court cannot consider a change to the parenting regime set out in that Order. Both that Order and the Poelman J. Order which it varied were granted in morning chambers.

In my view, they were clearly intended to be interim interim orders pending a fulsome hearing in special chambers. I have now heard fulsome arguments in two special chambers hearings (over two half days). My decision following the first hearing was based on an erroneous

interpretation by counsel and the Court of treatment notes of an attending psychiatrist. [ 16 ] I recognize that a change in circumstances is typically required for variation of a parenting order under the Family Law Act , S.A. 2003, c. F-4.5: 34(3) Before the court makes a variation order in respect of a parenting order, the court shall satisfy itself that a change in the needs or circumstances of the child has occurred since the making of the parenting order or the last variation order made in respect of that order, and in making the variation order, the court shall consider only the best interests of the child, as required by

section 18 and as determined by reference to that change. [ 17 ] I preface my analysis with an observation. In the letter acknowledging the true

interpretation of the symbol, Dr. Mahil confirms that the symbol is “well known in the pharmaceutical and medical world”. Counsel clearly cannot be faulted for the misinterpretation of Dr. Mahil’s handwritten symbols. However, the father is a pharmacist. He was present during the hearing (the mother was not). He swore an affidavit attaching the notes. It is surprising, given his training, that he would misinterpret the import of the symbols in question.

If he was legitimately misled, one would think he would have investigated the issue further to alleviate any concerns regarding the protection and well being of his children. [ 18 ] Significantly, the two morning chambers hearings were heard while the Restraining Order was in place. That Order expires on March 17, 2011. The Restraining Order applied only with respect to the father, not with respect to the children, and there has been no suggestion whatsoever of any aggressive behaviour by the mother against the children, nor against the father since August 1, 2010.

[ 19 ] Whatever concerns supported an order for supervision of access, those must now be considered alleviated. There has been no suggestion of any inappropriate actions by the mother during her access and there does not now appear to be any reason to require further supervision of the mother’s parenting time with her twin children. [ 20 ] I conclude that a change in the circumstances of the children has occurred since the making of the current parenting Order.

The Restraining Order which expires on March 17 has posed a hindrance to cooperation, and the information before the Court with respect to the mother’s competence now creates an opportunity for the twins to establish a closer relationship with their mother. [ 21 ] Under s. 34(3) of the Act, the Court is to consider only the best interests of the child, as required by s. 18 and as determined by reference to the change.

In determining what is in the best interests of these children, I have considered the importance of the twins’ protection, and have concluded that there is no evidence at this point which would justify any concern on the part of the Court as to the mother’s ability to care for the children. I have also considered the needs of the children, who require stability but also an opportunity to bond with their mother. There is very little evidence of the care the children have been receiving to date in the father’s home.

While the mother and father are clearly antagonistic, I have no evidence that they will not be mature enough to set aside their differences in order to carry out a parenting order. Joint Custody and Parenting Time [ 22 ] The current parenting Order provides only minimal supervised access to the mother of seven month old twins. Having found a change in circumstances, the issue becomes the appropriate parenting regime in the circumstances. [ 23 ] The mother does not believe that the father is competent or caring enough to look after the twins on a long term basis.

She says she suffered from post-partum depression, partially as a result of not having her babies. Her psychiatrist, Dr. Mahil, provided an Affidavit and letter clearly stating that she believes the mother to be competent to look after the children. She refers to the “reasonable and well thought out plans [the mother] has put in place to help take care of her children” and she has no safety concerns regarding her ability to manage her parenting responsibilities. [ 24 ] The mother also believes that the children are not being well cared for as the father is extremely busy with his two pharmacies.

The mother is not working at the present time. She says that it is in the children’s best interests that they reside with her. The father disputes all of this and says the children are thriving in a stable and nurturing environment. He says he has a flexible work

schedule and employs two nannies. He also receives assistance from his parents who live in the same residence. [ 25 ] As indicated, the mother now applies for sole custody or alternatively, joint custody and primary residential care. What she really wants is at least equal time with the children. The father maintains his position that the mother should only have specified and supervised parenting time.

While he was wrong in his allegations of suicidal, homicidal and infanticidal ideations, he maintains the position that the mother suffers from some psychological problems and it is in the children’s best interest that he maintain primary residential care of them. [ 26 ] As I indicated during the initial hearing on February 22, 2011, the various affidavits filed by the parties in this matter are striking in their contrasts and disputes concerning the true version of events which have occurred.

There is differing and contrary evidence on virtually every substantive point and the evidence is not just mildly different. The differences are of epic proportions. They relate to violence between the parties, money belonging to them or their parents, reconciliation attempts and even how they got rid of a family dog.

In short, it is impossible to accept or reject affidavit evidence in this case and viva voce evidence must be adduced to afford the court an opportunity to assess credibility. [ 27 ] In the meantime, the father encourages the court to now consider the violent behaviour on the part of the mother that led to the granting of the Restraining Order initially on August 24, 2010 and its confirmation on September 17, 2010 for a period of six months expiring on March 17, 2011.

[ 28 ] The father has submitted a video exhibiting an assault on him by the mother which occurred on August 1, 2010. He says that a mother capable of committing such an assault on him is not fit to have unsupervised parenting time with children. There is no doubt that the video exhibits an assault by the mother against the father but it is curious as to why the video starts at 15:00 on the day in question with the father looking into the camera, and is then apparently turned off until 15:33.

At that point, the mother is seen following the father into the living room and striking the father with a remote control on a number of occasions. The mother then swings a broom handle or some other object at the father which he is able to stop. In any event, the assault seems to go on for a period of time and throughout that time the father’s behaviour is somewhat curious in that he never tries to leave the living room where the assaults occur and indeed, appears to stay there intentionally.

While there is one scene in the kitchen where the mother is seen holding a knife with a 1 ½ inch to 2 inch blade, it was not used in an assault. [ 29 ] As I mentioned, one of the curious aspects of the video is the unexplained length of time between the time it was turned on by the father (15:00) and the beginning of the assaults (15:33). It is the mother’s position that during this time period, the father intentionally lured the mother into the living room after physically assaulting her in the bedroom.

His purpose for doing so, suggests the mother, was to ensure that her actions which were provoked by the father off camera were then seen on camera for the purposes of his application for the restraining order and, quite possibly, for his anticipated use in proceedings such as these. While the father denies this, the unexplained period of 30 minutes raises questions as to what might have occurred to provoke the mother’s reaction.

To an uninformed observer, it appears that all of a sudden and without provocation, the mother follows the father into the room (where he has just finished setting up the video recorder) and begins assaulting him. Simply put, the timing of the commencement of the video and the assault is suspiciously coincidental and favourable to the father who was intent on capturing unflattering behaviour on the part of the mother.

Further, some of the father’s actions during the video are curious as he seems to exhibit pain on a couple of occasions yet remains in the living room walking around and, for part of the time, eating. I would note also that at the time, the mother was eight and one half months pregnant and weighed about 80 pounds. [ 30 ] In addition to the video evidence, the father relies on the fact that the mother was referred to a psychiatrist on an “urgent” basis.

Dr Mahil indicated in a letter dated July 5, 2010 that she was asked to see the mother on an urgent basis “for depression and specifically thoughts of why she was depressed in pregnancy”. The mother says she was referred to a psychiatrist as she was pregnant and suffered from stress created by her relationship with the father and their ongoing disputes. These are mentioned in Dr. Mahil’s clinical notes in which she refers to problems the mother said she was having with the father with whom she was fighting and who was described as jealous and controlling.

The notes refer to incidents where the mother told her that the father accused her of cheating and pushed her. Later notes say the father was “trying to provoke her”. Dr. Mahil now states that the mother does not have any psychiatric disorder and has confirmed that she is not dangerous to anyone and is capable of looking after her children. In notes dated November 8 and December 15, 2010, Dr. Mahil does not indicate any concern at all about the mother’s competence or abilities. [ 31 ] The father questions the basis for Dr. Mahil’s assessment.

He says that she only saw the mother on four occasions for 45 minutes each and was unaware of the assaults that occurred between the parties in 2008 and 2010 or the breaches of the Restraining Order. Further, the father says that Dr. Mahil never saw the mother with the children, had never been in her home and, essentially, based her entire assessment on information provided by the mother and her observations in a clinical setting. [ 32 ] I find it difficult to discredit the evidence of Dr. Mahil simply on the basis that she only saw the mother in a clinical setting for a total of about 3 hours.

As a professional, I would expect Dr. Mahil to indicate a need to see the mother in different situations if she felt that to be necessary for her assessment. [ 33 ] Once again, the parties are attacking each other and the evidence led by each other in ways that make it difficult to assess credibility. I am satisfied that the truth lies somewhere in between the two respective and extreme positions.

While the father suggests that the mother has been dishonest and has breached the Restraining Order, the mother says that the father has been dishonest and, among other things, points to the fact that the father was prepared to, and did, allow the court to rely on a misunderstanding of the symbols used in the clinical notes of Dr. Mahil as a basis for denying the mother unsupervised parenting time.

The mother also introduced an undated letter sent by the father to her parents, presumably shortly after the twins were born, indicating that he would not contest the mother’s custody of the children and their return to China provided a number of conditions were met, one of which was that the mother would not ask him for anything (referring to property). The father says he only did this because he falsely believed that the courts always favour mothers in these situations and would have awarded her custody in any event.

His explanation however, rings somewhat hollow as he is separated from his first wife and deposed in his affidavit of October 6, 2010 that the boys from that relationship “are happy and enjoying time” with both parents. [ 34 ] I will not spend any further time discussing the substantive differences in each party’s

interpretation of the other’s Affidavits and evidence. Suffice to say, as I did earlier, that the differences are colossal.

[ 35 ] I put great weight on the benefit to the children of developing and maintaining meaningful relationships with both parents. In my view, there is no reason at this time to deny equal parenting time to the mother. The twin girls are seven months old and should spend equal time with each parent. Given their age, I am unsure as to how to apportion that time so that the best interests of the children are maintained and remain paramount. Is a one week on, one week off situation best for children of this age?

Is it better if the children alternate between parents each day, every second day or every three and a half days? I do not know. However, my order is that they spend equal parenting time with each parent and if the parties cannot work out the arrangement so that they are satisfied that they have given priority to the best interests of the children, I will do so on an interim basis until proper evidence can be brought forward. [ 36 ] Finally, the parties have agreed that a bilateral custody assessment will be completed by Dr. Hindmarch.

In my view, such an assessment will be much more helpful if the mother has had an adequate opportunity to parent the twins and establish a bond with them. IV. Conclusion [ 37 ] The application is granted. The twin girls will share equal time with each parent. Should the parents be unable to work out the details of shared parenting, the Court will do so. A bilateral custody assessment will be undertaken. [ 38 ] I direct the parties to

schedule a two day viva voce hearing on the issues of custody and parenting time to be heard before the end of June 2011. Heard on the 8 th day of March, 2011. Dated at the City of Edmonton, Alberta this 17 th day of March, 2011. Eric F. Macklin J.C.Q.B.A. Appearances: Peter D. Spitz for the Applicant Tina Huizinga for the Respondent