L.D.W. v. K.D.M., 2011 ABQB 384

Court of Queen ’ s Bench of Alberta Citation: L.D.W. v. K.D.M., 2011 ABQB 384 Date: 20110620 Docket: 4801 122280 Registry: Calgary Between: L. D. W. Plaintiff - and - K. D. M. Defendant Restriction on Publication: By Court Order, there is a ban on publishing information that may identify the children or guardians in this matter. See the Family Law Act , s. 100 . _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice P. R.

Jeffrey _______________________________________________________ [ 1 ] These are my reasons for decision as to custody, access, parenting, child support, spousal support and distribution of matrimonial property, between the plaintiff mother, W, and the defendant father, M. [ 2 ] This was a very high conflict litigation spanning almost 6 ½ years from their separation until the end of trial. The parties

accomplished little consensually over that time. They were frequently before the Court to decide their issues, large and small – well over20 times I was told. Each says the other forced this approach. They could not, or would not, find common ground or reasonablecompromise on anything of significance. This was despite numerous and extensive settlement meetings, in JDR sessions and casemanagement sessions, with two of the more experienced members of this bench. Both parties maintain they tried very hard to settlematters short of trial, but the other side was unreasonable.

In the mean time, for the children it has been truly a mean time, the cloud ofacrimony and mis-trust always hovering and all too often drawing them into its vortex. [3] The evidentiary portion of the trial was at times repetitive, meandered through the peripheral and focussed unduly long onhow each of the various episodes of high conflict was entirely the other party’s fault. While offering a degree of relevant narrative to theissues brought to the Court for decision, these meanderings were only nominally probative.

Most of that probative value came not fromany insights offered as to which parent might have been ‘right’ or ‘justified’ about their course of conduct, but from what they revealedabout the two parties by their attribution of blame to the other and how they would act in front of or involve the children in thosesituations. [4] I do not in these reasons, therefore, decide to or even comment upon each and every disputed event, divergent parentingphilosophy, contestation and allegation levelled one against the other that the parties chronicled during the trial. [5] I have nevertheless listened, weighed and considered each and also the approach W and M took to each, such as by a parties’choice to mention them at all during the trial and their respective manners of addressing them before me in the evidence, both the pettyand the paramount.

The parties can be assured that all the evidence presented has been reviewed and considered even though I do notrepeat it all or refer to the point and counter-point response each has to everything asserted by the other. See in this regard: R v. R. H. B., (SCC), [1994] 1 S.C.R. 656 at 664; Clifford v. Ontario (Attorney General), 2009 ONCA 670, at para. 40; and R v.Barry, 2001 NFCA 6, at para. 44. [6] These reasons are divided into two parts, the first dealing with the matters arising in the federal Divorce Act action and thesecond with the matters arising in the provincial Matrimonial Property Act action.

As our Rules of Court facilitate, the two wereconducted within a single court proceeding. General Background [7] The parties are both educated, articulate, fit, strong willed and capable. They both care about the image they project. Bothprefer having their way and being in control of their circumstances. Each goes about that quite differently. They have enjoyed mostlysuccess in the things they have chosen to pursue. Both have parents that have themselves separated or divorced. [8] They married on July 27, 1991, separated on November 7, 2004, and divorced on September 14, 2007. They are both now 49years old.

There are three children of the marriage: a daughter “A”, born October 23, 1993 and aged 17, a second daughter “L”, bornJanuary 14, 1997 and aged 14, and a son “S”, born February 1, 1999 and aged 12. [9] W was a teacher before she married M, and continued in that profession for the first 8 years of their marriage.

She has aBachelor of Arts in Psychology degree (1983) and a Bachelor of Education degree with Distinction (1985). [10] M is a landman and progressed on that career track, first in the employ of others and then in a consulting capacity that hebelieved gave him greater opportunity for management roles and to share in the potential upside of venture ownership.

He has a Diplomain Aviation (1983) and a Bachelor of Commerce degree in Land management (1990). [11] All three children of the marriage left the matrimonial home with W at separation, relocating to a local emergency women’sshelter, and returned to the matrimonial home pursuant to an Interim Consent Order dated December 10, 2004 (the “First Order”). Whas enjoyed exclusive possession of that home and physical custody of the children since. [12] W must now vacate the matrimonial home by August of this year, since it has been sold and possession is to transfer to athird party at that time.

Divorce Act Matters Legal Custody, Physical Custody, Access and Parenting [ 13 ] Under the First Order W and M have had joint legal custody of all three children on an interim basis since shortly after separation, with W having day to day physical custody of all three and M having access, or physical custody, every other weekend and every Thursday overnight, plus daily telephone access. Neither party seeks any change to the joint legal custody. [ 14 ] M seeks to vary the physical custody of two of the three children, L and S, as the final arrangement.

M seeks physical custody of L, as L requests, with W having access alternating weekends and specified times mid-week. In effect he seeks to reverse the arrangement with respect to L. He also seeks an equal sharing of physical custody of S, as S requests, on a week on and week off alternating basis. He says L is in “crisis mode” and W is the cause.

He says S is also in crisis, but that it is not so apparent because he internalizes it more. [ 15 ] W is equally concerned about L and notes that the marked deterioration in her behaviours started just last summer after being with her father and they disregarded the limits of M’s allowed access time with her. W says L has been alienated against her by M and empowered to defy her mother by things she has heard from others, including from M, for example that by age 14 she gets to decide which parent she lives with and no one can stop her, including her mother.

W says that any decision of this Court acceding to her wishes will unjustly reward M and exacerbate this 14 year old’s defiance of her mother’s authority. W says an equal sharing of physical custody of S would not be in his best interests, that he prefers a 50/50 split in order to stay out of the fray and appease both parents. She says that S, like L, is heavily influenced by M and that neither is able to stand up to the strength of his suasion and persona. She says she knows that position having suffered under it during the marriage.

It is for these reasons, she says, that the two children have expressed the views they have. She says it is not in their best interests to be with their father. He is abusive and a bad influence upon them, encouraging disrespect for their mother, defiance of all authority and modelling arrogance. [ 16 ] M says any alienation of L from W has been W’s own doing. He points to a litany of experiences L has endured of W displaying mistrust and even betrayal of L, which L wants to flee.

He says he does encourage his children to not blindly accept and go along with whatever others in authority might impose, but to think for themselves. They should think critically of what such people demand while always acting respectfully towards them. [ 17 ] The eldest child, A, was described as bright, insightful and engaging, talented artistically and her outlook sees only possibilities not obstacles.

She was reported as appreciating her mother’s involvement in all her activities and disliking what she regards as her father’s very strong and inflexible approach. [ 18 ] A is in her last year of high school and will attend the University of Calgary next fall to study music. She plans to live on campus; both parents support and agree to fund this plan. She prefers W having physical custody for so long as she is a child of the marriage and both parents accept her decision.

She further prefers being under no obligation to be with her father, primarily as a consequence of what for her was an upsetting and scary experience. Her father forcefully yelled in her face after she came home late one evening. She did not feel safe. L observed the exchange and later said she could understand A’s reaction, acknowledging that her father does lose his temper. A was said to be concerned that her experience may be repeated with one of her siblings. [ 19 ] Both W and M would prefer to see A and M’s relationship restored. M is willing to attend counselling with A.

A advised the amicus curiae that she is very willing to participate in counselling. [ 20 ] The second child, L, is high energy and goal oriented. She too is insightful with respect to her parent’s issues and how she is factoring into them.

She excels at figure skating and at her school studies, plus is involved in a wide range of other extra-curricular activities. [ 21 ] She prefers the more structured environment with her father over the more spontaneous and disorganized environment with her mother, though recognizes that her mother’s flexibility enables her to do a lot more that she wants, because her mother is available and prepared to adjust whatever she is doing to accommodate L. L appreciated that W’s support also helped her to be disciplined enough with her skating.

She does sports with her father and finds him easy to talk to; he will see the humour that she does. She also likes that he understands her homework and helps her with it.

[22] However, L has trust issues with W. She perceives her mother is not ‘on her side’ because of a series of events mostlyoccurring within the last one to two years, for example having petitioned school and recreation club authorities to punish her or not relaxconsequences already imposed on her. Whereas her father would take her side and advocate her wishes at school and at the Glencoe Clubwhere she trains and hangs out virtually every day, her mother will believe L should suffer consequences for certain actions and aide theschool and Glencoe pursue those ends.

L believes her mother is standing in the way of time she would like to spend with her father. Shehas run away from her mother’s home at night o be with her father. Her father has been ordered to not meet with L at school. To getaround that he has directed her to walk off school property to his vehicle instead of meeting up with her mother. L found W goingthrough her things. W would take cell phones M gave her for their communication.

Apparently W has said to L something along the linesof, says M, “If you go with your Dad I will always love you but never forgive you.” [23] The youngest child, S, was described as capable of high academic achievement, compliant and less communicative,preferring to keep more to himself. He enjoys computer games and is a bit stronger than the average for his age, which, his fatherbelieves, had some influence in his immediate taking to football when he started last summer.

Before that he was not very interested inother sports in which he participated, such as hockey. [24] When a toddler S cut his foot when stepping on a power tool M had left out during some house renovation work at theirMountain View rural property. S has acted out aggressively with other children recently, for example locking another child in a locker atthe Glencoe. He was suspended for that. W had him also write and deliver letters of apology. Before that task was completed M hadspoken with the Glencoe and got the punishment relaxed. S said to his mother, laughingly, that he didn’t have to write the last letter.

Wmade him do it anyway and insisted S not be allowed back to the Glencoe until W and M met with the Glencoe Manager. The Manager,said M, indicated being sick and tired of how W was treating the Glencoe staff. [25] S prefers to split his time equally between his parents, on a “week on week off” basis, transitioning each week on Friday afterschool. [26] A further son, named Sammy, was still born February 21, 2002. He is mentioned because, first, of the relevance of that stillbirth experience and its contributing effect upon the cost of Dr. Fong’s bi-lateral assessment.

That is, while the trauma of Sammy’s stillbirth deeply affected both parents, it took W much longer to deal with the experience. This and W’s desire to have another child becamean issue within the already stressed marriage. Then, after M unilaterally decided to (and did) have a vasectomy, in part as a result of theexperiences of both parties following Sammy’s passing, it appears W felt betrayed and saw less reason to continue trying to make themarriage work. She says M had been speaking along those lines for some time.

The confluence of these factors, among other things,affected the length of the bi-lateral assessment by Dr. Fong, the extraordinary cost of which is disputed and addressed later in thesereasons. [27] Second, I mention it because W’s conduct between Sammy’s still birth and when they laid him to rest at their Mountain Viewproperty could be relevant to the ability of W to parent the children. That is, shortly after the still birth W learned that the hospital wouldpermit W and M to take Sammy out of the hospital to arrange for their own burial.

They decided they would do that and, when theconditions permitted, bury him at their land near Mountain View Alberta. In the interim he was kept in a Tupperware container in theirrefrigerator. W had arranged in the master bedroom of a shrine to him. On occasion W would remove Sammy from the container, dresshim, hold him and place him in the shrine.

At some point Sammy was relocated from the fridge to the freezer, where he remained untilhis burial at the Mountain View land. [28] There is only one test to be applied to determine the custody of children, namely, what is in their best interests having regardto all the relevant circumstances relating to their needs and the ability of the respective parents to satisfy them: Gordon v. Goertz, (SCC), [1996] 2 S.C.R. 27, at paras. 17-19. The test is not what best conveniences the parents, or either of them, but what isin the children’s best interests: A. v.

A., 2005 ABQB 607. [29] At para. 21 of Gordon, based upon s. 16(9) of the Divorce Act, the Court said that “Parental conduct, however meritorious orhowever reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child.” [30] For purposes of the Family Law Act, S.A. 2003, c. F-4.5, as amended, guidance is given Alberta courts, at sub-section 18(2),in determining what is in a child’s best interests:

18(2) In determining what is in the best interests of a child, the court shall (

a) ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and (

b) consider all the child’s needs and circumstances, including (

i) the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development, (ii) the history of care for the child, (iii) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, (iv) the child’s views and preferences, to the extent that it is appropriate to ascertain them, (

v) any plans proposed for the child’s care and upbringing, (vi) any family violence, including its impact on (

A) the safety of the child and other family and household members, (

B) the child’s general well being, (

C) the ability of the person who engaged in the family violence to care for and meet the needs of the child, and (

D) the appropriateness of making an order that would require the guardians to co operate on issues affecting the child, (vii) the nature, strength and stability of the relationship (

A) between the child and each person residing in the child’s household and any other significant person in the child’s life, and (

B) between the child and each person in respect of whom an order under this Part would apply, (viii) the ability and willingness of each person in respect of whom an order under this Part would apply (

A) to care for and meet the needs of the child, and

(

B) to communicate and co operate on issues affecting the child, (ix) taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintainingmeaningful relationships with each guardian or proposed guardian, (

x) the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements ofguardianship, and (xi) any civil or criminal proceedings that are relevant to the safety or well being of the child. [31] A list of relevant considerations was developed by Graser, J. in Shaw v.

Shaw, (1997), (NB KB), 189N.B.R. (2d) 84 (Q.B.), at para. 33, that I find a useful framework in this case for assessing where the children’s best interests lie: 1) Which parent offers the most stability as a family unit; 2) Does the evidence disclose a more substantial bonding between the child and one parent or the other; 3) Which parent appears most prepared to communicate in a mature and responsible manner with the other parent; 4) Which parent is more able to set aside personal animosity and be generous with access arrangements; 5) Which parent shows promise of being an appropriate role model for the children, and exhibits a sense of values and direction; 6) Which parent is more prepared to broaden the scope of the child's life with learning, associations and challenges; 7) Are the extended families on either side polarized or are they generous of attitude with the opposite parent; 8) Which parent provides the best cushion for the child against the stress of breakdown of the marriage; 9) Does a child have physical or mental problems that require special attention and care e.g. attention deficit disorder or asthma; 10) Does one parent or the other play mind games with a child and carelessly expose the child to domestic turmoil; 11) Where will the overall long term intellectual and security interests of the child best be served; 12) Will there be material provisions that meet at least minimal standards; 13) Which parent appears most prepared to give priority to the children's best interests over and above his or her own; 14) Which parent exhibits the most maturity and ability to accept and deal with responsibility;

15) Does either parent appear more prone to litigate than communicate or negotiate; 16) Is there a positive or negative effect with respect to the involvement of third parties with either parent on the welfare of the child and is it financial or emotional, and does it affect the living accommodations; 17) In consideration of the potential for joint custody does the evidence reveal a couple, with the maturity, self-control, ability, will and communication skills to make proper joint decisions about their children. [ 32 ] Regarding the 1 st Shaw consideration, each parent offers to the children going forward a comparable level of stability as a family unit. [ 33 ] Regarding the 2 nd consideration, A has bonded more with W.

L has bonded more with M. The evidence does not disclose that S is bonding more with one parent than the other. L believes W favours A over her and is not fair when intervening into the differences between A and L. [ 34 ] Regarding the 3 rd consideration, communication between the parents has been rare, other than through counsel. The parties’ communicating was restricted by the terms of the First Order, which included the following: 9.

The parties shall not have contact with each other, directly or indirectly, except through legal counsel. [ 35 ] That type of restriction can have merit, for example where the personal safety of a spouse or child is at genuine risk, where there are no children of the marriage, or for a limited period of time while permanent corollary relief terms are efficiently hammered out.

But to be restricted from all communication other than through counsel here, for almost 6 ½ years, where on any objective assessment there was no genuine risk to the physical safety of W or the children, the parties share legal custody jointly, transfer the children between them at least once every week and encounter each other more often than that at the Glencoe Club and as telephone visitation occurred, served only to exacerbate the situation. The First Order had long since outlasted its usefulness in this regard.

The parties acting reasonably should have revised at least this aspect of it. [ 36 ] In the end, I do not have a sufficient basis to draw any conclusions about which parent interacts with the other more maturely and responsibly.

It appeared that when W cross-examined M at trial, it was one of the first times the two had ‘spoken’ directly for any length of time since the day of the separation and perhaps the attempts at settlement by judicial dispute resolution. [ 37 ] Regarding an ability to set aside personal animosity and be generous with access arrangements, W demonstrated, with a few select exceptions, the opposite. She demonstrated a determined resistance to flexibly adjust access between the children and M.

Her rigid adherence to the First Order has been a significant aggravating factor between the two parties and adversely affected M’s relationship with his children. In the almost 6 and a half years since the First Order, W has agreed to adjusting M’s access barely a handful of times. He was also unable to access the children many Christmases, having to proceed through counsel each time.

W said that she considered the traditions of her side of the family important for the children to experience and that she believed that her family’s traditions would more likely be embraced by the children if they participated in them annually. In effect she was saying that her family’s Christmas season traditions were more important than any traditions M might wish the children to experience.

The overall impression left, though, was that the children are an essential part of W’s self image and her primary motivation has been to have them with her at Christmas gatherings for all her extended family to see and, she believes, credit W. [ 38 ] M has not been in a position to be generous with access by W. What is known is that he has not set aside his personal animosity towards W in front of the children, having said disparaging things to at least L about W and her conduct.

At times in the courtroom, particularly when he was testifying, his struggle to contain his disdain for W and all she was causing him, and to maintain his controlled demeanor, was palpable. Similarly W grinned on occasion during the trial when she could see M unable to control what was happening as a result of her unrelenting importunity and quibbling every possible detail.

[ 39 ] As stated earlier in these reasons, both like having their way and being able to control how circumstances unfold. Each resents the other getting in the way of that and now looks to me to vindicate them. Both lost sight of what the children need. Even if the ‘other side’ was making wholly unreasonable demands and was entirely in the wrong, that did not justify drawing the children into the fray. Each in their own way has suffered for it. [ 40 ] M has, however, demonstrated an effort to comply with the limitations of the Court ordered access.

W reports M as having periodically declared that he would ignore whatever a Court might impose upon him. If so she is justifiably concerned that any such ‘above the law’ arrogance would be an inappropriate influence on the children. She fears L has already adopted some of this attitude, having defiantly lashed out at W and at school authorities. Her behaviours and language are definitely of grave concern; early on in the trial the Court with consent of both parties ordered counselling for L, which I am told is continuing.

W does not, however, seem to recognize that her rigid insistence on compliance to the jot and tittle of the First Order, to the disregard of its purposes, has materially contributed to M’s exasperation and any such emotionally-driven declarations by him. [ 41 ] On a couple of occasions, as the children grew older and began to test asserting their access preferences, the younger two children have not returned to W as required by court order. On one such occasion M had delivered the younger two to the curbside at W’s home but they would not leave his vehicle. S at least went to the door.

While M could have done and said much more in support of the children’s relationship with their mother at that time, reasoning with them, endorsing W’s love for them and affirming not undermining her authority over them, I do not regard his conduct in those situations as revealing any dangerous rebellious or anarchistic influence on the children. W says L wanting to not return to her care resulted from M turning L against her mother.

As I address elsewhere in these reasons, L’s alienation has multiple causes, including M’s undermining W’s role with L, but also including L’s perception that W favours A and that W does not trust L. [ 42 ] Furthermore, W many times referred to the number of times during separation that M brought application to this Court for changes. She maintains he did this to use up all her resources on lawyers and otherwise, by the legal process, overwhelm her or at least weaken her resolve. At that time he was acting on his own behalf and so, she reasoned, it cost him nothing but her immense amounts.

I am not prepared to impute to M that motive, on the basis of the evidence before me, primarily because a portion of M’s applications resulted from W declining to reasonably accommodate M’s periodic requests for changes to his access. Further, the Court could have been asked to remedy the bringing of any applications that were frivolous or advanced for ulterior purposes, such as by an order of costs or limitation on further access to the courts without leave.

I mention this contention of W, alleging M proliferated court applications to exhaust W financially and emotionally, however, because if nothing else it demonstrates that M did in fact recognize the authority of the Court and attorn thereto. He was trying within the prevailing legal regime to effect some changes, not unilaterally disregard it. [ 43 ] Therefore on this 4 th consideration, W has been shown to not be generous with access arrangements between the children and M. I have been given no reason to believe that M, if awarded primary physical custody of any of the children, will be the same.

His evidence suggests that he will be accommodating and will seek to encourage the repair of L’s relationship with W. I believe him. This consideration weighs strongly in M’s favour. [ 44 ] Regarding the 5 th consideration, which parent showed greater promise as an appropriate role model for the children and better exhibit a sense of values and direction, neither parent fairs better than the other. Both have clear and considered sets of values to which they ascribe, including on how to instill those beliefs and values in the children.

One of the divisive elements in their marriage and during their separation has been that their individual beliefs and parenting values are so very different from each other. But both sets of values are acceptable within our society. Neither is accorded greater favour in the eyes of the law. [ 45 ] As for appropriate role models, both parties failed to protect the children from the escalating acrimony and mistrust between them. Here, instead of keeping the children oblivious to the issues between the parents, the parties did the opposite.

They actively engaged the children as agents of their divisive purposes by such things as (

i) questioning them for information about the other parent (each did this, W with A and M with L), (ii) sending them on reconnaissance missions to take pictures and conduct searches in the home of the other parent (W did this with A), (iii) spiriting personal articles out of the home of the other parent by clandestine means (M did this with

L) and (iv) requiring the children to make their requests of the other parent and broker such matters between the parents rather than the parents communicating directly with one another about the children’s requests (both did this, with all three children). The high conflict nature of the home life for these children, persisting for over 6 years, is tragic. That they have not manifested greater problems by now is perhaps miraculous. [ 46 ] Therefore this 5 th consideration does not favour either parent over the other.

The same applies to the 8 th consideration, namely which parent provides the best cushion for the child against the stress of breakdown of the marriage. As just explained, both failed in this regard.

[ 47 ] On the 6 th consideration, both parents have been prepared to, and in fact have, broadened the scope of the children’s lives with learning, associations and challenges. At one point M believed W had the children excessively involved in too many extra-curricular activities, to the detriment of their academics and well being. Yet once the children took an interest in any of those various activities, or displayed an aptitude for them, he fully supported their continuance. It was M that added an activity (football) to S’s plate.

This consideration does not favour either parent over the other. [ 48 ] Regarding the 7 th consideration, their extended families, W’s mother and both of M’s parents, though estranged, attended for portions of the trial. M’s parents took little interest in the children before the parties separated. The children do not enjoy visits with M’s parents. L and S told their father, he says, that W’s mother criticized him to L and S and that she criticized L and S for wanting to see their father more, describing him as a “bad man”.

This, of course, like so much other of the evidence about the children and their wishes and perspectives, was hearsay. But unlike many hearsay statements impugning W or her family, this was not refuted by cross-examined or contrary evidence. W’s mother was present in the court room on a number of occasions and so could have been called to testify, but was not.

In her final submission W provides additional evidence denying this allegation, but this new evidence was too late to be tested or refuted by M and therefore was too late for consideration by the Court. [ 49 ] W’s final submission also includes as additional new evidence that “ All of [W’s] extended family , including their grandmother, spoke to L and S about their behaviour saying they had hurt their mother’s feelings by ... and they were told that their choice affected other family members who were disappointed and inconvenienced when ...” (emphasis added).

Fortunately for W, this new evidence also will not be considered by the Court. [ 50 ] W’s sister and W apparently have had fights but it appears she has been willing to loan W money until the matrimonial home sells so that the children could get orthodontic care and the two collaborate about renting the lands they each own near Mountain View Alberta. M has a brother that has made space in his home for M post separation and assisted him in other ways.

This 7 th consideration does not markedly favour either parent. [ 51 ] Regarding the 9 th consideration, none of the children have physical or mental problems that require special attention or care. [ 52 ] Regarding the 10 th consideration, neither parent plays mind games with the children. Both believe the other has but I find that both genuinely desire the best for them and cheer their every success. But both parents have carelessly exposed the children to their domestic turmoil, as described above. Further, M has carelessly undermined W’s role and authority with the children.

This has adversely affected L’s relationship with her mother and contributed to the current alienation of L from W. M supports L and W jointly attending counselling to restore their relationship. But he perceives L’s distancing from her mother as entirely W’s doing. Any such counselling may be futile if he persists in undermining W’s decisions, values and authority in L’s life. W’s conduct has certainly been a major cause of the alienation of L from her, but is not the only cause.

M’s undermining is every bit at fault and, had he instead endorsed W’s decisions with respect to L, even if not in agreement with individual decisions, it is likely that L would have processed W’s regrettable interventions as intending to facilitate her best interests rather than betray them and not now been in need of professional care. A father’s influence on how a young daughter processes what she experiences cannot be understated.

L is in her current the state because of the failings of both parents, not just one or the other. [ 53 ] The same is true of A and the apparent primary cause of her preference to avoid contact with M. Here the experiences have been somewhat reversed, in that after M verbally and forcefully berated A the night she returned home late rather than inquiring and reasoning with her in a way that communicated unconditional love, acceptance and greater interest in A’s interests than his own inconvenience or position of authority.

But similar to M with L, W with A did not try to help her process the experience from an ‘M- positive’ perspective. Rather she acceded to A’s wish to exit, rescued her and undermined M’s access and chosen method of discipline of A. [ 54 ] And the acrimony between A and L has further complicated the various allegiances and rifts forming within the family. It is no wonder S prefers solitude, limits his communication and seeks the sidelines of the family.

He appears to be minimizing the risk of his own relational nightmare. [ 55 ] In result this 10 th consideration militates in favour of W but only because M’s behaviour alone could have reversed the

adverse effects for L, regardless of whether W behaved well or not. If W behaved as she did with L, but M did not, M’s constructive not destructive conduct could have overcome the adverse effect of W’s conduct; L would have been, for the most part, unscathed thereby.

However if only M behaved as he had and not W, there would be nothing W could have done to overcome or offset that destructive undermining influence. [ 56 ] Regarding the 11 th consideration, both parents will adequately serve the children’s overall long term intellectual and security interests, though L has been caused to not feel secure when in her mother’s physical custody and A vulnerable when in her father’s physical custody. [ 57 ] Regarding the 12 th consideration, whether the parents will provide the children’s material needs to at least minimal standards, both certainly intend to.

Both are familiar with and promote a healthy diet. Both try to provide whatever the children need. W goes further and willingly accommodates whatever activity her children want. No cost is too great for W if her children want to participate in something. M prefers some limits being set. But they both have been prepared to have their children continue to attend one of the most expensive private fitness and social clubs in the city, despite the ability of each to fund such a lifestyle having been greatly impaired by the financial drain of the litigation and the support of two households rather than just one.

The Glencoe Club is located near the matrimonial home and the matrimonial home is located within Mount Royal, one of the city’s most prestigious neighbourhoods. W had a membership at the Glencoe before she married M. He was not inclined to have his family attend there and associated it with elitism. W must have prevailed. When they moved into Calgary they purchased in Mount Royal and became active at the Glencoe. [ 58 ] The choice to continue bearing the costs of the Glencoe Club throughout the separation, when their finances were suffering and legal costs mounted, seemed unusual to say the least.

But over time the children spent as much or more of their waking hours at the Glencoe than they did at home. Perhaps the expense was rationalized on that basis. It became apparent that the Glencoe provided an after school meeting place with friends plus other advantages, such as internet access, which they did not have at the matrimonial home. So the children stayed at the Glencoe for that, sometimes for homework assignments and sometimes for personal use. Plus they participate in numerous sporting activities there.

More recently L also remained there for as long as possible some nights to minimize the time she would be home with W. [ 59 ] More significant, though, was that, for about the last year, at the matrimonial home there was no hot running water.

It appears the morning routine included W and the three children piling into their vehicle and making their way to the Glencoe to shower, in conjunction with whatever else they might do there at the start of their day, such as L’s skating practices. [ 60 ] There are some people in this country and many in this world that do not have access to hot running water or even clean drinking water. And for many of our ancestors settling this country hot running water was a luxury unheard of. So it is not that a person cannot get by without it, or that a child cannot develop into a mature well adjusted person without it.

But most people now would regard it as an essential. W could have had the cause of the problem repaired. She was low on cash flow – she had already liquidated her RRSPs and borrowed from family for legal bills and orthodontic costs for the children – but she had capital, just tied up in the matrimonial home (which M was wanting sold) and in her Mountain View property. Also, she could have pursued full time employment, even if not as a teacher. That the parties opted to continue funding Glencoe and other expenses while the home plumbing needed repair is troubling.

It appears that M was not aware of the plumbing situation where his children resided until much more recently. [ 61 ] Despite the financial pressures mounting over the period of the separation, W resisted the sale of the matrimonial home. Opportunities abounded to reside in a less expensive house elsewhere in the city; she would not consent to the sale of the Mount Royal home and a move from it until their lender commenced foreclosure proceedings.

Then she relented and the house was placed on the market for private sale. [ 62 ] It was my impression from all that I heard and observed, that W believed that her home falling into disrepair would somehow reflect on M as an inadequate provider for his family, rather than reflecting, as it actually does, on her judgment in managing her household alone now that she is separated. [ 63 ] I find M to have demonstrated better fiscal judgment.

In addition to being more likely to model how to live within one’s means, the children are more likely to have their material needs met to a minimal standard when in his physical custody. [ 64 ] Regarding the 13 th consideration, both parents believe they give priority to the children's best interests over and above their

[ 64 ] Regarding the 13 th consideration, both parents believe they give priority to the children's best interests over and above their own and, for the most part, have. The matters selected by me for comment here arose over a 6 ½ year period and prior to the separation. I find that for the majority of the time the children’s interests were foremost to the parents and well served.

This is confirmed by their individual successes in their pursuits, despite the cloud of conflict always hovering. [ 65 ] On the 14 th consideration, as to which parent exhibits the most maturity and ability to accept and deal with responsibility, W is more calm and composed. M’s temper at times takes over. When levelled at vulnerable children or teens, as occurred with A, this can be far more traumatic than M might realize. [ 66 ] However, M does at least admit to slipping up. He does not deny having made a mistake or two along the way. W, however, does not see any error in her ways.

Though not a person to lose her temper, I am hard pressed to recall her discussion of a single issue or incident between W and M, or involving the children, in which she admitted to being even partially responsible. She invariably found the fault lying entirely with M. Further, for every such issue or event arising during trial, even the minutiae, W found it necessary to correct the record or re-frame what had occurred to put herself in favourable light and show M to be at fault.

This apparent need to be seen by others as being right, on even the tiniest of minutiae, suggests an insecurity that provides a less healthy environment for children. While M’s temper is a significant deterrent to awarding him greater physical custody, W’s manner is a greater deterrent. That is, M’s slips are immediate and evident. Children are often forgiving, particularly when a parent admits an error and requests forgiveness. The air is cleared; everyone can then move on. W’s manner, however, takes its toll more insidiously over time.

It impedes a child growing in personal confidence; the parent always being right. The child never observes how a mature adult acknowledges limitations, apologizes and reconciles. I am not suggesting that M has been a model parent in this regard; he too is more inclined to justify his ways than acknowledge error, but I do see in him at least more open communication with L and S and healthier patterns in this regard. [ 67 ] This conclusion is further reinforced when observing that M accepts A’s decision about not wanting further access time with him whereas W does not accept L’s or S’s preferences.

M is not happy about the distance from A, but accepts his

part in its cause (though still justifying it) and remains willing to bridge the distance. W, however, sees lurking behind L and S’s preference for more time with M some nefarious planned conduct by M to bring this about; she sees nothing on her part that might have contributed to the children forming these conclusions. She does not see that L would be empowered, even if by nothing else, merely by her being placed in the position of having to broach each parent separately with her requests for permission, hearing the reaction of each, and then being able to play each against the other.

Both are responsible for this; my point is that W sees only M as the source of her alienation from L. [ 68 ] M has shown also that when provided with additional information he is willing to change his mind. An example arising during the trial related to whether the parents would permit L to travel to Phoenix with a friend and her family. W was opposed; M had told L he would support the idea. However, even though it would mean coming around to W’s position on the matter, after additional information came to light about that event he was prepared to change his mind and did.

M was therefore not unduly influenced by whether it would mean agreeing with W or telling L he had changed his mind; he decided based upon what he thought were in L’s best interests. Parental open-mindedness enables children to believe they have been heard, their requests genuinely considered and to accept the resulting decisions. This consideration favours M somewhat. [ 69 ] Regarding the 15 th consideration, neither parent appears more prone to litigate than communicate or negotiate than the other. This litigation did not resolve following any mutual compromises.

Both are not prone to give in easily, but I am aware that, after numerous failed settlement efforts, it was M that had to press to get this matter on to trial against W’s resistance and that it was set down for trial on a peremptory basis. [ 70 ] Regarding the 16 th consideration, the involvement of third parties with either parent on the financial or emotional welfare of the children is not a factor.

Nothing raised by the parties regarding M’s new female friend, or pictures thereof, informed the decision around the best interests of the children beyond reinforcing that the parties have different values. [ 71 ] Regarding the 17 th consideration, the evidence suggests continued joint legal custody to be inadvisable. The evidence does not reveal a couple with the maturity, self-control or communication skills with each other to make decisions jointly.

Yet each proposes that joint legal custody continue; they disagree over physical custody. [ 72 ] Beyond these 17 considerations I have also considered the stated preferences of each child and, with respect to L, I have considered her stated preference with the added benefit of having heard directly her comments and observed her manner. I also consider the recommendations of the amicus curiae that has experience interacting with children from broken homes and that met with each of the children.

[ 73 ] I have considered the Dr. Fong’s findings as captured in his bilateral parenting assessment report, some portions of which I have excerpted and attached as Appendix A hereto. [ 74 ] Both parents took issue in their testimony with Dr. Fong’s conclusions about them. Both were the subject of his parenting- related concerns. [ 75 ] Dr.

Fong observed regarding M, for example, that he “... demonstrated a highly defensive profile. ...This type of rigid defensiveness, where he would attempt to deny things the average person would not deny, suggests he may have difficulties with little insight into his problems.” He was also described by Dr.

Fong as probably coming across “charming” to those that do not know him well but “testy and demanding” to those who know him better: “His pattern might be exploitive in family or work.” [ 76 ] Regarding W he observed: “... she exemplified a sense of needing to demonstrate an anxious conformity to the expectation of others. She can be rigid and compulsive ... and most notable is her demeanour of being serious minded, grim and cheerless. ...

Her major defense mechanism includes excessive conformity. ...She can be over concerned with minor irrelevancies that would distract her from her feelings if feeling inadequate.” [ 77 ] The report, which both parties consented to being received into evidence for the truth of its contents, is now over 4 years old, is based on untested information and, according to W, did not permit W to put all of her issues ‘on the table’ in the same way M did. She found Dr. Fong’s approach pushy and reminiscent of the way M had treated her when together. Dr.

Fong was not present in court for me to assess the veracity of these concerns. Also, he was hearing information, sometimes second hand, not in any adjudicative capacity but from a psychological perspective with regard to forming conclusions about parenting. Therefore I accord his report less weight everywhere it might possibly be subject to those concerns. [ 78 ] I have concluded that W’s issues following Sammy’s death no longer affect her as they previously did. Whereas Dr. Fong observed that W was unable to speak about that experience without breaking down (see in this regard, Dr.

Fong’s comments at Appendix A excerpted from the bottom of Page 9 of his report), by the time of trial it no longer had that effect. Therefore this past preoccupation is not a material factor in my decision. [ 79 ] I have considered the comments of each of the parties about their parenting styles and approaches. I have considered the history of past care and the plans each has for discipline, for ensuring attendance at school and facilitating continued participation in activities of the children’s choice.

I have also considered the children’s individual needs and each parent’s ability to satisfy them. [ 80 ] I am in agreement with the comments of the amicus curiae , when she says: I think Mom has done a very good job of meeting their needs, of scheduling their extra-curriculars and supporting them in that. This is a relevant consideration in my assessment of the best interests of the children prospectively, but not dispositive of the issue.

While W can rightly be credited in those regards, and demonstrates an ability to meet some of the children’s needs going forward, it is also true that she failed to maximize the time the children could spend with their father, or even encourage it. Even when such access could have been accomplished in the course of the children’s regularly scheduled activities, such as by permitting the children to interact with their father while active at the Glencoe, and therefore requiring no disruption to either their schedules or hers, she actively resisted.

In addition to reducing not maximizing their contact with their father, this thrust the children into the midst of the parental conflict rather than protecting them from it. [ 81 ] This was defended on her part by relying on the First Order that limited all contact between the parents. But this was open to revision by agreement and, in my view, it was unreasonable for W to limit the children’s ability to see their father in public and neutral surroundings such as the Glencoe club. It should have been permitted, at least to some degree.

[ 82 ] The rigidity of the First Order resulted in part from the events at separation. W was criticized for taking the extraordinary step of fleeing to an emergency shelter on the day of separation. This step implied to the children that M was a risk to them and her. It contributed significantly to the provisions that were placed into the First Order that were unduly restrictive and increasingly counter- productive over time. [ 83 ] Reviewed objectively there is some basis to doubt that such an extraordinary step was warranted.

An inference might even be drawn that the basis for the flight was contrived, or at least pre-planned by W, to act on as soon as an occasion arose when W could blame it on M. First, it appears that W had earlier tried to provoke M into physically abusing her in order to have the police come and then be able to claim to have been physically abused (see at Appendix A hereto the excerpt from Page 27 of Dr. Fong’s report). My comments elsewhere in this decision about my ascribing less weight to Dr. Fong’s report apply here. Those comments appear to be based upon a second hand report to Dr.

Fong and it is not clear whether W was given any opportunity to respond. [ 84 ] Second, the incident between W and M leading up to their separation arose because M returned to the home to find W looking through his personal backpack, that both understood held things he determined to keep from her. If anyone was provoked to action, the suggestion goes, it was him not her. [ 85 ] Third, some period of time after that discovery, and the ensuing brief confrontation between the two, they later were together, seemingly comfortably, as they dealt with the transfer from one to another of a vehicle registration.

The suggestion here is that this calls into question whether W in fact felt herself at any risk from M, if she willingly remained in his presence for that activity after the backpack incident. W says that she did not leave immediately because she had to wait until she had with her all three children and M was not around. [ 86 ] I am satisfied that in the months and perhaps years leading up to that day when M discovered W in his backpack, M had frequently yelled and demonstrated a short-fused temper. This was exacerbated when he had been drinking.

He maintains that he was never physically violent with any of his family, but the force of his personal presence was very difficult for the others in his home, all of whom were more vulnerable. The yelling incident precipitating A’s choice to not return to M’s home is a prime example. W could have handled that better, but the fact remains M’s temper was manifest and far more intimidating and demeaning than M seems prepared, even by the time of trial, to acknowledge. [ 87 ] Also, M was in the practice of squeezing tightly a pressure point in M’s hand for emphasis or control.

He would “flick” W, and the children, and would slap S on the side of the young boy’s head. He denied W a chequebook and required her to justify accessing a single cheque from him. He was rough with the children, encouraging S to fight. He would yell at the children and believe they needed it. He said that W was his property, that “ownership has its privileges” and forced himself upon her. In court, at times, M displayed his impatience quite visibly.

Evidently M likes to and expects to have his way; he tries to control his circumstances by intimidation. [ 88 ] When M discovered W searching his backpack, he was just returning to the house to retrieve something he had forgotten to take with him. He didn’t have much time. He was angry at what he discovered. W headed outside believing she was safer there.

M put his hand on her neck and said tersely something like they would “talk about it later.” Given the context of such a physically strong, forceful and domineering person, then, W’s reaction by fleeing with the children to an emergency shelter is better understood. [ 89 ] The trip to the registry was to finally get one of the vehicles into her own name. This, along with W’s acknowledgment that she had been consulting advisors for some months about separating and related options, confirms there was a degree of pre-meditation to W’s manner of separating.

Less alarming and traumatic approaches for the children were available to her. However, given her state of mind at the time, largely as a function of M’s physically controlling behaviour in the past, I do not fault W for her decision to flee with the children to an emergency shelter or factor her decisions at the time of separation into the best interests analysis adverse to her. She was not without foundation for the fears she harboured November 7, 2004.

She may have genuinely believed she had to take the extraordinary step of fleeing to the safety and anonymity of an emergency shelter with her children to break free of M’s influence and begin to undo its effects upon her. [ 90 ] I have concluded that some but not all indications of parental alienation exist between W and L. The same is true as between A and M. It appears to me further that neither parent has intended these outcomes, but both have contributed to it in each case. The written comments of Dr. G. J.

Kneier, adduced by W and admitted into evidence by consent of both parties, state: Thus, in most cases of splitting or alienation from a once loved parent, there are three factors at work:

1. The attitudes, sympathies, influences, and sometimes emotional problems of the favoured parent; 2. The mistakes, reactions, and sometimes history of disturbing family conduct of the alienated parent; 3. The defensive reaction of the child’s own mind, desperately trying to deal with intolerable stress. While the first two factors are important, and in come cases one or the other is the major cause of the alienation, most of the time it is the third factor – the reaction of the child’s own mind – which is the principal cause of the alienation . ( emphasis added ) At a later point Dr.

Kneier further comments: As a bit of an aside, the notion that the alienation reaction is principally a matter of brainwashing, influence, or manipulation by the favoured parent raises a curious question. While it is true that young children can easily be influenced by parental comments and beliefs; it seems to be a hallmark of adolescent development to be far more reasonable to expect resistance, even backfire, from an adolescent in the face of attempts to brainwash, influence, or manipulate. The average adolescent seems to have a heightened sensitivity and resistance to such things.

Nor can we assume that it is unusually weak and compliant adolescents who are brainwashed or manipulated into the alienation reaction. The facts are just the opposite. Alienated adolescents are very empowered and outspoken. They are fully prepared to argue with adults, even lawyers, therapists, and judges. And they take great offense at any implication they are influenced or manipulated. If they know one thing for sure, it is that their thoughts and feelings are their own.

Clearly, in the case of adolescent children, we need a better theory than manipulative influence . ( emphasis added ) [ 91 ] Evidence was presented of L being most outspoken, defiant of certain persons in authority and even brazenly insubordinate and vulgar to her mother. She was polite and engaging when interviewed by myself and the amicus curiae .

She is smart enough to have learned that some of her extreme behaviour was actually working against her wishes to be with her father more and counter-productive to her father’s interests and, therefore, it seemed to me that she became more temperate and respectful in her approach in my presence. While the evidence reveals an extremely hostile and visceral aversion by her to her mother, she also was able to acknowledge more objectively some of the very positive aspects of her mother’s care and influence in her life. [ 92 ] MacPherson, J. in J.K.L. v. N.C.S. , [2009] O.J. No. 804 (Sup.

Ct.) , said, at para. 169 : ... each case of alienation must be considered on its own particular facts. In determining the appropriate remedy there must be a balancing of both the short term and long term risks and benefits which take into consideration the needs of this particular child.

It is also necessary to consider the specific and multiple factors that have contributed to the situation. [ 93 ] Even if L’s degree of alienation had been caused entirely by M’s manipulation as W maintains, which is not my conclusion, it would not necessarily follow that it would be in L’s best interests to force her back into W’s physical custody. This is not Dr. Kneier’s recommendation for all cases. Further, being alienated from one parent does not necessarily mean that her best interests are achieved by forcing her to reside with the parent from which she has become alienated.

Her alienated condition should inform how each parent ought to relate to her in order to facilitate the amelioration of the alienation and the restoration of her relationship with her mother. While M’s self-interested and inappropriate conduct that contributed to the degree of alienation should not be rewarded, if L’s best interests warrant her now being in M’s physical custody, then despite some observers perceiving that M’s inappropriate behaviour has been rewarded, L’s best interests will prevail and she will be placed in M’s physical custody.

Conclusion on Physical Custody and Access [ 94 ] Like every parent, both parents here could improve their parenting practices. But each of them alone, if separate from the other, is able to sufficiently meet the parenting needs of the children. It is their uncooperative shared-parenting , more than anything else, that has impaired their parenting. The disappointing behaviours of both were often reactions to behaviours of the other that they found provoking. [ 95 ] In weighing all of the foregoing considerations and submissions of the parties, however, I have no doubt that it is in L’s best

interests to move from W’s to M’s physical custody at this time. Significant among the various foregoing considerations is that I have fargreater confidence that the contact by L with both parents will be maximized if she is in the physical custody of her father. That has notbeen the case while in her mother’s physical custody. [96] Maximizing parental access is important in making a custody order.

Sub-section 16(10) of the Divorce Act states: In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contactwith each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness ofthe person for whom custody is sought to facilitate such contact. [emphasis added] McLachlin, J. (as she then was) commented on this point in Young v.

Young, (SCC), [1993] 4 S.C.R. 3, at 117: By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judge shouldensure that this contact is maximized. The modifying phrase “as is consistent with the best interests of the child” means that the goal ofmaximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, itmay be restricted. But only to that extent.

Parliament’s decision to maintain maximum contact between the child and both parents isamply supported by the literature, which suggests that children benefit from continued access ... . Here contact with both parents does not conflict with the bests interests of L. [97] Also tipping the scales in favour of L now living primarily with M is my conclusion that expanding the physical separationbetween W and L will actually narrow their emotional separation and the animosity L feels for her mother.

This change will provide thebetter platform for W to try to regain her daughter’s favour. [98] I say that it is in L’s best interests to move from W’s to M’s physical custody “at this time” because this regime for L will bein place for 2 years, until the end of June 2013, and maybe no longer. At that time but not before, any request of L to return to live withW or perhaps to divide her time in each home differently, can be granted.

If she then wishes it, I would expect her parents to both accedeto such a request, all other things being equal and subject to it being in her best interests in the circumstances at the time. While Mhaving physical custody is what L wants now, I also have no doubt that she will discover that the ‘grass is not as green’ on the other sideas she presently thinks or, in this case, that it is not greener or browner, but that it is just different.

But if she and W are soon able torestore their relationship and L then starts to think, for whatever reason, that she would like things to revert back in whole or in part, L must remain with M until at least the end of the school year of her 16th birthday (June 30, 2013). This restriction should in some smallway help to offset any belief she may still have that she can control these decisions and reduce her sense of empowerment.

It will alsogive a meaningful opportunity for her to benefit for a more extended period from her father’s differing approach, as it is lovingly appliedover time. [99] Starting July 1st the existing custody regime shall cease and L shall transfer into the physical custody of her father. W shallenjoy access to her on alternating weekends from Thursday after school until Sunday at 6 pm, unless the following Monday is a statutory holiday, in which case she shall return to M on the Monday at 6 pm. This access by W shall begin Thursday July 7th, 2011.

There shall beno other required access times or transitions over each 2 week period, unless the parties mutually agree. M is expected to afford Wgenerous access regardless of the particulars required by this decision. [100] The parties are to alternate access for the dates over Christmas (December 24th to 26th) and Easter (Good Friday throughEaster Sunday) each school year, with L joining her father for all the Christmas 2011 dates and joining her mother for all the Easter 2012dates, and then switching the next year.

All other school breaks are subject to the new physical custody regime unless M determinesotherwise as he affords W generous access. All Mothers’ Days are to be with W and all Fathers’ Days with M. [101] W shall have L for a two week period uninterrupted each summer. For the summer of 2011 only, W decides when that twoweek period will be, since she will be moving from the matrimonial home and may wish the time to coincide with the move or may wishit to be at a time when she is not preoccupied with or undertaking the move. In subsequent years the timing of the (at least) two week

period of uninterrupted access will be determined by agreement as early in the calendar year as possible. Absent agreement by May 31 each applicable year, M will decide. [ 102 ] S’s best interests have been harder to determine. My analysis on what is in L’s best interests almost all apply similarly to S.

But not all, and I am mindful also of S’s wishes, his age and the changes likely to come over W’s home once the chill between W and L and between A and L are abated. [ 103 ] I conclude that S shall stay with each parent on the week on and week off basis requested by M for the next year, but not starting until September 1 st , 2011, and on that Friday September 1 st he shall start his week on with W. Transfer time shall be as he requested, Fridays sometime after school. This transfer date and time can be adjusted upon agreement of both parents.

This start date should coincide with W’s alternating weekend access with L, so that the two are together as much as possible within each home. [ 104 ] Over the summer, however, S will be with his father on the same basis as will be L, including a two week uninterrupted stay with W during this summer, at a time of W’s choosing, not necessarily the same weeks as L.

To be clear, then, for the months of July and August, 2011, both L and S will be in M’s physical custody, with W having physical custody (access) only on alternating weekends commencing Thursday July 7 and for one uninterrupted two week period, potentially a different two week period with each child. [ 105 ] All other access terms, such as identified holidays, are the same for S as with L, with each parent to generously accommodate adjustments requested that are in the best interests of each child, not deterred by personal convenience.

I agree with W that there shall be no compensatory time of physical custody when it has been superseded by holiday schedules. [ 106 ] W in her argument referred to the paramountcy of sailing activities in July (like a number of other matters in her final submissions this never arose in the evidence). For these children I have a serious doubt that, with everything else they do, also going sailing will advance their best interests at all.

But regardless of that admittedly less informed perspective, whether either child now engages in this particular activity will now be determined in accordance with the new custody decision making regimes. [ 107 ] I am, however, certain that it is in the best interests of the children that W has this two month period of time, over July and August 2011, with greatly reduced shadowing the children, to begin to shift her focus from what it has been, to complete her relocation and to attend to the task of increasing her employment in earnest. [ 108 ] This week on and week off regime applies to S for the 2011 - 2012 school year and through the subsequent summer, except that each parent shall have S for a two week period of uninterrupted time that summer of 2012, each to coincide with their two week period of uninterrupted physical custody of L. [ 109 ] Towards the end of the 2011 - 2012 school year S should be asked about his wishes for the 2012 - 2013 school year and beyond.

If no strong preference either way is voiced, he shall continue in the week on and week off pattern. The parents may wish to seriously consider engaging a counsellor for S well in advance of this time and then consult that counsellor in this regard. In any event of that input, ideally both parents will meet together with S to hear his wishes, modelling for him maturity and selfless concern for his wishes, and will resist discussing the matter between them until they are beyond his hearing.

S’s best interests are to be their sole criterion and each parent will listen open-mindedly to the other and is to effusively overflow with eager accommodations one for the other. Absent agreement by July 31, 2012, W shall decide. [ 110 ] A will soon be on her own at university. Until then of course she is at liberty to be with whichever parent she chooses and that is willing to accommodate her, the parents of course considering also the best interests of the other two in such decisions. [ 111 ] All previous orders regarding custody, access and contact are vacated.

W and M are to communicate directly, either by phone or, if either party prefers instead, by electronic means such as email or text message. [ 112 ] Communication via any of the children about any pending decisions affecting any of the children is prohibited. For example,

neither parent is ever to say to one of the children “find out what your (mother/father) says” or “it’s okay with me if it’s okay with your (mother/father)” or strategize with a child about how to elicit a permission from the other parent. The parents are to communicate directly on all such matters. The parties are of course at liberty to have the children pass on other messages of an informational nature and at all times are to be guided by what is reasonable in the circumstances to serve the best interests of the children – not necessarily the wishes, whims or yearnings of the children, but their best interests. [ 113 ] The parties shall not attend at or enter the residence or workplace(

s) of the other except with their prior consent or in an emergency and in such cases the attendance or entry shall be for only so long as necessary to accomplish the excepted purpose. The parties shall keep the other informed of the applicable locations and any changes thereto for so long as they want the protection of this particular order. [ 114 ] The parties may approach the children when in the direct company of the other parent when circumstances warrant but not otherwise. Reasonable judgment is to prevail.

If the circumstances are such that a loving parent would want to be present, the non- custodial parent may approach. When such circumstances arise and a child is with the other parent, the approach by the other should be respectfully brief and involve engaging only the child not the other parent.

Examples of acceptable circumstances are when a child is in a hospital, at an airport or other venue departing or returning from an excursion, and at a competition, school function or other occasion in which the child is demonstrating acquired or developed skills, performing, competing or receiving public recognition of some kind.

This is not an exhaustive list. [ 115 ] There shall be no restriction on the children initiating an approach of either parent or interacting with either parent, if ever they happen upon that parent, for example at the Glencoe Club, school, university, cathedral, mall, park, coffee shop and on the street. It is of course up to each parent in such circumstances whether or not they wish to speak with the other parent at such times.

The children will benefit, however, from observing how mature adults deal with conflict, politely acknowledge each other and gracefully minimize random encounters with difficult personalities. [ 116 ] Both parents bear the positive obligation of informing the other of all events and activities and issues and reports of whatsoever kind that might affect any of the children, even if they think the other may have learned about it independently – they are to strive to over -inform the other and not let up until requested. [ 117 ] Each child should have a cell phone if finances permit and be subject to reasonable limitations on its use.

These limitations shall be set by the parent having legal custody as directed below or, if a different parent is funding the line charges for the phone, and desires more stringent limitations, then the parent funding the line charges shall set the usage limitations. The exception in both cases is any limitation on calls between the child and the parent not having legal custody.

The frequency and timing of those calls shall be determined by the child and that parent, in the same manner any other parent and child would arrange the frequency and timing, without limitation imposed by the other parent regardless of whether that other parent has legal custody. [ 118 ] Among other things this change should facilitate minimizing occasions in which the parents encounter each other on the phone when they call to speak to one of the children. No child is to be restricted from using their cell phone to communicate with either parent during permissible hours.

No parent is to contact one of the children by their cell phone to inquire about the other parent’s interaction or decisions about a child. No parent is to use it in a way that results in one child becoming the receptionist for another or the reconnaiteur of another.

Again, the parents are to communicate directly and keep the children completely oblivious to those discussions. [ 119 ] There shall be no restrictions on S or L transporting anything given to them by either parent, to own or just to use, from one home to the other or leaving it in the home of the other parent when the recipient is not in that home. [ 120 ] Neither parent is to book anything during the other parent’s time with a child, without the prior consent of that other parent.

Where the booking relates to an activity of choice of the child, such prior consent is not to be unreasonably withheld. [ 121 ] There shall be no police enforcement clause as requested by W. I am satisfied that in the new access (physical custody) regime it will not necessary and that this is not one of those exceptional situations in which the trauma caused to the children by police intervention would be warranted. [ 122 ] Both parties must seek leave of this Court before bringing any further applications that relate to any of the issues addressed in

this decision. Conclusion on Legal Custody [ 123 ] Joint legal custody, whereby the parties are to agree on the major decisions affecting the children, has not worked and I am not confident that following this decision the parties will miraculously now be able to see eye to eye. I do not consider joint custody appropriate for these parties and these children. [ 124 ] In my view the best interests of these children are better served by a regime that minimizes the occasions for the parties to conflict or come to an impasse by their differing values and child rearing opinions.

In my view each should now receive notice from the other of any impending decision affecting their children and have opportunity to offer meaningful input to the decision maker. But the final decision will not require agreement of the two. Each child should be in the sole legal custody of one, not both, of the parents. One of the two should bear the obligation of consulting the other, not via one of the children but directly, and then make the final decision. When a decision is made contrary to the wishes of the other, the reason or reasons should be provided.

The affected child should know which parent he or she is to approach, that that parent has the final say, and not be left to flounder in uncertainty or get whipsawed between the two as they lever other personal objectives out of the circumstance. [ 125 ] Therefore M is awarded legal custody of L; W is awarded legal custody of S. A shall remain subject to joint legal custody; the parties have not disagreed with respect to her best interests.

Nevertheless neither parent is to make any decision in the capacity as sole legal guardian without the prior reasonable advance notice to the other and consultation directly with the other as described above.

Either parent may of course make decisions in emergencies when the affected child is in their physical custody, but must thereafter as soon as feasible communicate that decision and rationale to the other directly, not through any third party. [ 126 ] The parties shall nevertheless have direct access to all medical, educational, psychological and extracurricular information regarding each of the children and both parents shall do everything necessary of them to arrange for that to occur.

The only exception to the foregoing is any such information that would also reveal confidential information about the other parent, such as might be generated by a child and parent jointly attending counselling. [ 127 ] The parent with legal custody of L or S shall have possession of that child’s passport and shall in any event not remove that child from the Province of Alberta without first informing the other parent, no less than 30 days prior, of their destination, anticipated duration, mode of transportation and contact telephone numbers.

The parent without legal custody must first acquire the prior approval of the parent with legal custody, which again shall not be unreasonably withheld. [ 128 ] If either party plans to travel outside Canada with one of the children in accordance with the approval(

s) for same above, even if the parent has sole legal custody of the affected child, the other parent shall provide the passport and written authorization to allow the children to travel. [ 129 ] The parties shall promptly provide all new addresses and other contact information whenever it changes, for so long as any of the children continues to be a child of the marriage. [ 130 ] After June 30, 2013, the legal custody of both L and S may revert to joint on demonstration to the Court that the parties have succeeded in excluding the children from their differences, in cooperating where ever possible and in generously accommodating each other for the children’s sakes.

Counselling [ 131 ] Regarding counselling, all parties are to use their best efforts to adjust their schedules and access times to accommodate any such appointments or, as a consequence thereof, any meetings a counselling participant wishes to hold with another in either family. L is already in counselling and W is most willing to join in at some point if the counsellor considers it advisable; M is ordered to

accommodate that on a priority basis notwithstanding the rest of these orders. The amicus curiae , Ms. Hart, is asked to communicate this willingness of W to L’s counsellor. That counsellor will assess if and when it might be beneficial for L and invite W in or not accordingly. [ 132 ] Both A and M have indicated a willingness for similar joint counselling. It is recommended, not ordered, that M take the

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