NMA v AS, 2012 ABQB 281

Court of Queen ’ s Bench of Alberta Citation: NMA v AS, 2012 ABQB 281 Date: 20120622 Docket: 4803 147913 Registry: Edmonton Between: NMA Plaintiff - and - AS Defendant Editorial Notice: On behalf of the Government of Alberta identifying information and personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Overview

[ 1 ] This is a custody trial ordered by Case Management Justice Browne to be in the form of a viva voce hearing involving the parents and their then 8 year old son. Counsel for the Child Ms. Doyle was originally appointed counsel for two children in March 2009 - the now 10 year old son and a now 18 year old daughter. [ 2 ] This entire matter was remitted into Case Management in March 2010 due to the multiplicity of applications, allegations of inappropriate conduct by both parties, and the increased involvement of the children in the midst of two dueling parents.

Case Management involved multiple meetings and applications resulted in a Final Form of Consent Orders including; a Divorce Judgment, a Consent Case Management Order, and Consent Property and Corollary Relief Judgment being entered into in February 2011.

Less than one month after the Defendant father appealed all Judgments and Orders negotiated and sought to revise the shared custodial arrangements for the youngest child into an arrangement of sole custody with potential supervised access to the mother due to her alleged drug and alcohol use. [ 3 ] The mother alleges a systematic campaign of familial alienation efforts orchestrated by the father and his extended family that have effectively removed her of any functional relationship with her eldest child, and more recently focused on eradicating her involvement with her youngest child. [ 4 ] The parties concede having a tumultuous, dramatic and sometimes violent relationship and marriage, involving over 20 substantial separations ranging in time for days to a period in excess of a year.

The parties married in February 2001, and ultimately separated by January 1, 2008 when the father was asked to leave the parties' rental accommodation.

Subsequent to this separation the eldest child then sixteen quickly moved out of her mother's rental and her actual residential arrangements remain somewhat ambiguous and vague, as evidence provided suggested that the eldest child resided principally with and was cared for by the paternal grandparents with limited involvement and periods of residency with the father. [ 5 ] The younger child now ten remained in the care of his mother until approximately March 2008 when he moved in presumably with his paternal grandparents and/or the father. A shared arrangement with a weekly rotational

schedule was implemented and secured by various Court Orders throughout 2009 to 2011, and was ultimately replaced with a Without Prejudice Interim Order, providing limited ongoing contact with the mother, taking the parties to this viva voce hearing.

Despite the involvement of counsel for the child and deference to the child ’ s wishes regarding the reduced time and contact, the provisional order was not followed and for an approximate 4 month window the mother was effectively removed from the child ’ s life. [ 6 ] At the viva voce hearing, the mother seeks sole custody of the youngest child and to eliminate indefinitely any involvement or contact with the father and the extended family. [ 7 ] The father maintains that his actions throughout these protracted proceedings have been reasonable and just, and that the children have independently come to the views they now hold of their mother, without familial involvement in the form of coaching or alienation. [ 8 ] Since the Case Management Judge did not specifically limit or define the allowable witnesses in the hearing, the Court entertained a broader based inquiry allowing the father to call numerous witnesses to help support his case.

Issues of residual finances involving the distribution of monies paid into Court from the sale of matrimonial property were necessarily adjourned due to time restrictions, to allow the parenting issues the fullest possible hearing. [ 9 ] The father's evidence almost exclusively involved family members whom the mother alleges as being at the heart of the alienating mechanism that brings the parties to Court. [ 10 ] Counsel for the Child called as witnesses the sole Expert, a psychologist involved with the family both in terms of providing initial counselling support for the eldest child of the marriage and then retained to provide a Practice Note 7 Intervention aimed at addressing issues of purported alienation.

Counsel for the Child also called the child's School Principal to discuss events occurring at the school, the involvement of extended family members and the impact that the conflict was having on the youngest child. Counsel for the Child took an amicus role and while presenting the views and preferences of the child, did not adopt an advocacy position for the Child.

Witnesses called by Counsel for the Child Dr. Joanna Seitz [ 11 ] Proceedings began with Counsel for the Child calling the only Expert retained in this matter. Dr. Joanna Seitz, a Chartered Psychologist had been retained to provide counselling for the eldest child, some supportive counselling to the younger child and ultimately to complete a Practice Note #7 Intervention, with a mandate to: – 1. Provide counselling for the children and possibly the parties and educate the parents with respect to improving communication between them; 2.

Evaluate the parties' relationship with the children and highlight any required alterations; and 3. Assist the parties with developing a parenting plan or in the alternative making some recommendations regarding an appropriate parenting arrangement. [ 12 ] It was discussed during the viva voce hearing that the style of the PN7 Intervention Order originally given to Dr. Seitz stemmed from and earlier Order by the Case Management Judge, and that the parameters for her intervention only extended to the youngest child, as the eldest child had indicated her unwillingness to participate in the process.

The present applications by both parents aimed at readdressing issues of parenting only involved the younger child. Dr. Seitz indicated that the eldest child was not directly involved in the intervention. Dr. Seitz was qualified as an expert in child psychology. Also entered was her Practice Note #7 Report (Exhibit #2) and correspondence written to Counsel for the Child, Andrea Doyle, on 3 May 2011 (Exhibit #3). [ 13 ] Dr. Seitz indicated in her Practice Note #7 Report that she was unsuccessful at carrying out its mandate.

In accordance with her mandate, she did not conduct a full bilateral custody assessment. [ 14 ] Dr. Seitz found the younger child to be an intense and often reserved child who was cautious about how he worded comments regarding his parents. He was consistently negative about his mother without providing any supporting examples or reasons to substantiate his views. He did not advise Dr. Seitz of his father's relationship with a new girlfriend, or about the recent birth of a half sibling into his family.

He indicated that he did not miss his mother and that the only thing wrong with her was that she smoked and drank. Dr. Seitz found that the younger child "had clearly been coached and was very much aware of the expectation that he communicate what as expected of him". She opined that he had begun to internalize the anti-mom theme that was pervasive in the father S. household where he spent the majority of his time. [ 15 ] Dr.

Seitz raised concerns saying that the younger child did not have the ability to choose for himself where he should live, and that his evidence and stated views and preferences should be accorded no weight. It was clear, she felt, that he could not think about an alternative from living with his father's family. Dr. Seitz was concerned about the family pressure being exerted on the younger child, and commented that the S. family was intent on meeting their own agendas.

She indicated that the paternal grandparents were involved in influencing the children's views but was unsure whether they would be receptive to advice about their behaviour. Dr. Seitz was clear that such alienating behaviour represents child abuse. [ 16 ] After Dr. Seitz's meeting with the father ’ s father RS, he was described as preoccupied with his own litigation and financial worries and unable to concentrate or see the needs of his son. He “ presented as almost unable to hear suggestions regarding focusing on the younger child's needs ” . He inappropriately asked Dr.

Seitz to tell the child what it was that he wanted and saw no problem with this form of conduct. He was described as insightless and unable to recognize or act on the interests and needs of his son. As stated by Dr. Seitz “ Mr. AS has not, in my view, demonstrated a functional awareness of his children's needs generally ” . [ 17 ] The Defendant AS made it was clear during his meeting with Dr. Seitz that he thought the Trial was a joke, and that he would not abide by any decisions made by the Court. He was preoccupied with bringing down the Justice system. Dr. Seitz was unable

to fulfill the mandate of her retainer as the father was not amenable to accepting advice; rather, he was intent on proselytizing, and forwarding his view that the entire process was useless. He did not appear to understand what a healthy parental role might be and he did not display any awareness of the younger child ’ s emotional and developmental needs. Dr. Seitz believed that her continued involvement in these circumstances would have no benefit where one parent was not receptive to hear any recommendations of professionals and purposefully withheld information regarding his circumstances. [ 18 ] Dr.

Seitz believed the mother demonstrated insight into the needs of the child and demonstrated that she placed the focus on the child's needs. While Dr. Seitz opined that she “ may not have always pursued the divorce with the best interests of the children in mind, her behaviour towards the younger child was appropriate and genuine and was primarily concerned with the younger child's wellbeing ” . It was clear that the father had largely abdicated his parental role for the children in favour of his parents, and the extended family was more intent on pursuing their own agenda and interests.

While not feeling able to make a specific recommendation regarding ongoing parenting arrangements, Dr. Seitz indicated that in cases where the alienation is extant and ongoing, the limited options for the Court generally see the child being removed from the alienators family and placed with the targeted parent, with supports put in place to de-program the child's entrenched views.

Principal Susanna Makale [ 19 ] Counsel for the child also called the Principal of the younger child ’ s School to provide some background for both children of the parties and to describe the involvement of the Polish community and the individual S. family in the lives of the children. The Principal advised that it was unusual for such an administrator to be called to give evidence in a custody dispute, and that the school took no position regarding such private disputes. Ms. Makale made it clear that she was only at Court after having been served with a Subpoena for her attendance by Counsel for the child. Ms.

Makale was represented by the School Board in-house counsel and independently retained outside counsel, to oversee her questioning. Ms. Makale advised that the father and his family had initiated a complaint against the School and School Board due to alleged inappropriate conduct of the school regarding facilitating parenting time to the mother, and alleged abusive manhandling of the child during one such exchange. [ 20 ] Ms. Makale's concern was that the school was being drawn into a custody dispute and being used as a public forum to deal with a private issue.

She was concerned for the impact that this was having on the child and indicated that several heated exchanges had occurred between persons associated with the school and the S. family regarding issues of custody. Ms. Makale testified that both children had attended St. Basil's School and that the eldest child had since graduated and moved to a different High School. She reviewed Report Cards regarding the child's progress (Exhibit #22) since March 2010 and discussed the child's limited absences from school in the described period.

There were no unusual absences and his absences, were less than average. [ 21 ] She reported that the child's academic achievement was mixed and that an IPP protocol had been established for him (signed by the father) to assist with academic weaknesses. She did not describe any behavioral concerns for the child whom she described as solemn and reserved.

As the Head Administrator for the school she advised that any concerns from colleagues, Police or child welfare authorities would come through her, and that no such reports were made, with the exception of a complaint made by the father regarding a schoolteacher's involvement in one May 2011 parenting time exchange for the child. Ms. Makale explained that the father did not participate much in school matters and that only one request had been made in September 2010 to change the child's Grade 3 classroom teacher, which was not followed up on. Ms.

Makale described interactions involving other S. relatives including the paternal grandparents seeking to advocate for their grandson and being told that the school could not communicate with them, as they were not guardians for the involved children. She indicated that the paternal grandparents were often on the school premises during pick-ups and drops-offs for the child and that due to the increased possibility for conflict, the mother was advised to attend early at the school on her parenting days where she would be taken to pick up the child without incident. Ms.

Makale explained that with the eldest child's involvement in the exchanges came increased tension and problems. Attempts to mitigate the child ’ s problems were thwarted, including an offer for the eldest child and the younger child to have private lunchtime and space together on days when his mother would pick up the child. [ 22 ] Ms. Makale testified that the School had been provided with a cut and paste letter seemingly authored by the eldest child regarding her perceptions of incidents following a parenting pick-up (Exhibit #38).

She was surprised that the letter had been copied to the school Board, Children's Social Services, Dr. Joanna Seitz and Counsel for the child, Andrea Doyle and did not believe that a 17 year old would know who to address the letter to. [ 23 ] Ms. Makale had not had any opportunities to witness any interactions between the father and the younger child and reported

that up to date address information had to be obtained following an incident in which the father did not pick up the child, and attempts to contact him were unsuccessful due to his disconnected phone. [ 24 ] A number of heated exchanges occurred with the father due to the language contained in the Court Orders that the School was attempting to follow, specifically the Orders indicating that Wednesdays were the weekly exchange date, when the practice and verbal confirmation from both parents confirmed that in fact Tuesday had become the exchange date.

During one such exchange on May 18, 2011 the father was at the school following a failed attempt by the eldest child to deny access occurring for the younger child and the mother. The father got into a verbal altercation with one of the male teachers. His behaviour was described as out of control as he argued that the school was breaching the Court Order. This became the basis of one complaint made by the father to the Edmonton School Board.

During testimony of the father later in the Trial, he acknowledged that the Tuesday-to-Tuesday pattern of exchanges had been agreed to by him and was being followed (Exhibit 27 paragraph 5). [ 25 ] Interactions between the mother and the younger child were described as positive, calm, and affectionate. The mother was described as deferential, collaborative and supportive of her child's needs, and of the school's position. Ms.

Makale explained the process for Report Card distribution that would see the Report Card going home with child in the backpack and not separately being provided to both parents in cases of separation/divorce. Ms. Makale could not recall any instance of profanity being used during exchanges with the mother. Witnesses Called by the Father Rachelle Jorjengson [ 26 ] Rachelle Jorjengson the current girlfriend of the father's younger brother, KS, was called as the father's first witness. Her evidence was limited and unequivocal.

She was adamant that the mother was a bad person and a bad parent but could not provide specific examples, and ultimately admitted that her involvement with the mother was quite limited. While the father maintained that Rachelle had become something of a surrogate mother to the eldest child due to their ages and interests, nothing specific was stated with respect to the eldest child's interests, habits and needs. Ms. Jorjengson made a comment later repeated by her boyfriend that the mother had wanted her son to be homosexual.

KS [ 27 ] The evidence of KS confirmed his girlfriend's earlier allegations regarding the mother wishing the child to be homosexual. He acknowledged the child ’ s close bond with the father ’ s new girlfriend Faye, and the eldest child ’ s bond with Rachelle. He opines that the father is not the easiest person to deal with and likens the kids to "gypsies" for their lack of stability they have had since separation.

He criticizes the approach of the Courts in trying to force a child to love a parent and places the blame squarely on the mother for the estrangement problems created through her conduct, without acknowledging his involvement as an emissary at the child's school, and his videotaping an exchange between mother and child, for the retrieval of personal effects. [ 28 ] He proclaims his compliance with Orders, insisting that he always articulates the need for the father to take the children to see their mother, but then expresses concern for the naivet é of the Courts in thinking that parties won't discuss Court proceedings.

He has been the individual behind the scenes orchestrating and organizing matters to the point that the father seemingly often seeks his approval with respect to actions undertaken. Alicja Bochhno [ 29 ] Alicja Bochno, a longtime family friend of the father ’ s family complimented the family as being her adoptive Canadian family. She recounted poor behaviour on the part of the mother at a 60 th birthday party for RS happening immediately on the heels of the

parties' conflicted separation. Her comments were limited to the 60th birthday party but included the mother being intoxicated, trying to get the father's attention, trying to get the paternal grandmother to dance and inappropriately throwing a shot glass that night. She also volunteered that she had seen the father at school more often than the mother during morning drop-offs, but could not speak to the mother's involvement with the children during the relationship or subsequent. Grazyna Beres [ 30 ] Grazyna Beres was a self-described longtime friend of the Sr. S. family.

Her evidence was also largely limited to the events of RS's 60th birthday party. She recalled not staying for the entire function and not having firsthand knowledge of the mother's behaviour. She acknowledged that the bulk of her evidence and perceptions was gleaned from discussions with the S. matriarch, TS following the birthday party. Her testimony included the grandparent's connection with the grandchildren, and the family doing things with the kids. She also indicated that Mr. RS spent lots of time with the children, which is consistent with other evidence proffered by the other witnesses.

She could not speak to issues of the father's parenting; and she had no interactions with, and described no parenting observed, between the mother and the children. Roman Galinski [ 31 ] Roman Galinski, another well-meaning family friend and former Polish social worker, supports the evidence of earlier witnesses regarding the mother's conduct at RS's 60 th birthday party in which she grabbed many drink tickets from the table center display.

He testified seeing the mother speak with the grandmother at the function and was later advised by a S. family member that an argument had ensued, the owner was called and she was asked to leave. He acknowledged that he did not have extensive contact witnessing the father's interactions with the children, and had no experience witnessing the mother with the children. RS [ 32 ] The S. patriarch provided evidence about whom the father was living with after his return from a trip to visit the Pope in Denver in 1993, and was unaware of any relationship that his younger son PS, had with the mother prior to the father.

While proclaiming neutrality in treatment and approach to the children and in-laws in his household, he also made unequivocal comments such as his role was “ to judge ” and that “ he did not accept ” the mother in his family. Despite his recall for incidents such as the mother's declarations against his family's financial interests, he was less clear in recalling the number of times he would/might have told his grandchildren that the mother had ruined them financially and taken away their home.

He also could not remember specific threats made against the mother. [ 33 ] He denied his dislike for the mother and maintained neutrality about comments concerning her Aboriginal heritage except to say when pressed that it was well known to persons in his business of operating a liquor store that “ natives are alcoholics ” . He acknowledged how dependent the father is on him and his family, and of his significant involvement with these grandchildren. He revealed that the father had “ been lost for 3 years ” , cries a lot, talks about Court proceedings and remains dependent on he and his wife.

He said that he treats his grandchildren like he treats his children. He was unapologetic for his behaviour in these proceedings, including his involvement in picketing outside the courthouse and videotaping his granddaughter at the mother's home retrieving her belongings.

He indicated clearly that he would never have signed the Agreements that the father had signed, and that the father had been wronged by the Justice system so far. [ 34 ] He acknowledged saying specifically to the children when angry that the mother had ruined her family financially, but did not feel this would have a negative impact on the children.

He felt he complied with Court Orders between 50% - 60% of the time, and he acknowledged his involvement in the actual Court proceedings, including his attendance at Case Management Meetings. [ 35 ] It was clear through the testimony of RS that his son was unable to support and maintain the children on his own and that the majority of that burden fell to he and his wife. It was unclear during what period the grandchildren and/or the father actually lived under

his roof. He had strong views about what should be happening for the younger child, and felt that the school and others had treated his son improperly. He felt that he was an advocate for his grandson. Marcin Morawski [ 36 ] Marcin Morawski, a painter friend of KS ’ s, testified with respect to decade old stories of the mother being very friendly and making sexual advances on him. His evidence offered little with respect to the current issues of parenting of either the mother or the father, and he acknowledged being removed from the “ family ” in excess of 6 years.

His evidence more generally suggested a pre-marital lifestyle that involved socializing and drinking and included an acknowledgement of the alleged proclivities of KS and AS to take off their shirts when drinking. AS (The Defendant Father) [ 37 ] AS testified to the mother ’ s abusive physical behaviour including: extinguishing cigarettes on his body, an attempted stabbing of him, repeated physical violence of his person, and her attempted suicide and behaviour which included disappearing for days at a time. When pressed, he indicated that his daughter could testify to many of these events.

He was angry that the proceedings did not seem to involve or warrant the eldest child's input and he reminded the Court that she is a child of the marriage too, even though no one seems to want to hear about her. He introduced Police Witness Statements, and then advised the Court what they represented. [ 38 ] He offered hearsay evidence of many other recollections. He proclaimed that the mother had no interest in schooling or education and that she routinely kept the younger child from attending school.

It was pointed out to him that the Principal of the School had refuted the “ increased absences ” of the child and that the Report Cards and attendance sheets of the child had been tendered into evidence. He alleged that the mother drank all the time and was unable to parent.

However his evidence to substantiate these allegations was either decades old, suggestive of a lifestyle for the parties that predated children, or alternatively one incident very early on after the parties ’ separation in which the mother had over imbibed at a family event and caused a scene. [ 39 ] His biggest concern was the mother's drinking which he maintained continued unabated and was witnessed by the children. There was no evidence of any such current behaviour, with the exception of the father indicating that he knows it occurs.

He also feared that the mother would harm the younger child, and that the child was scared of her. He could not provide specific examples of when the mother had ever harmed the child. [ 40 ] The father's evidence delved into issues of unfairness resulting from the property disputes. He continuously brought up the mother ’ s attendance at the Lakeview Edmonton property which he described as a “ break and enter ” . He confirmed for the Court that he involved the children by bringing them to the home, and following his brother's call, having the eldest child telephone her mother to accuse her of theft.

He then had the eldest child complete a witness statement regarding her involvement in the matters. It was unclear to what extent the father subsequently discussed these matters with the children. [ 41 ] The father's evidence regarding his involvement in the younger child's schooling contradicted that of the Principal who recalled the father more in passing, and believed his family to be more involved in arrangements for the children than he was.

While not present at school on April 19, 2011 the father went on to accept without question the recollection of events as articulated by the eldest child, with the assistance of the brother, KS. The father acknowledged that this recollection of events later became the basis of his complaint to the Edmonton School Board, and also underpinned the father's request to subject the mother to supervised visitation going forward. The father maintained that for a period approaching 3 months, he advocated for a resolution of the classroom arrangements for the child in the start of 2010.

He felt no compunction to ensure that Report Cards were sent from his home to the mother ’ s since she didn't care enough to find out about the child's marks and involvement at school, and he had no obligation to do it for her. [ 42 ] To substantiate the father's view that the mother had both alcohol and gambling addictions, he entered numerous credit card receipts from 2006-2008 showing various casino transactions and alcohol purchases. The father maintained that such transactions represented the mother ’ s personal consumption and habits presently.

During cross-examination the father relented somewhat when confronted with questions about the parties' liquor store ownership during the time and the need to purchase alcohol for it, which would have explained some of the liquor purchases.

[ 43 ] The father maintained that the mother would not cooperate on any level regarding matters, and that she would routinely fail to comply with Orders and disappoint the children with her actions. His examples of disappointment were almost invariably tied to the provision of some form of gift or property, which would be promised to the children and then not delivered. It was unclear where the initial request for whatever item/property came from.

The father felt that the child's views were expressed fairly through his own observation and that they should be respected. [ 44 ] The father described the mother as the aggressor and complained that he was hounded and harassed by her throughout their relationship.

At the start of the viva voce hearing the father had disclosed one CD of two tape-recorded conversations containing two different conversations that he acknowledged having recorded of the mother without her knowledge or consent. [ 45 ] CD track #1 Exhibit 9 involved an hysterical Plaintiff using vile language attempting to make arrangements with the father to obtain some money.

The language used was replete with profanity. [ 46 ] On the close of the first week of the hearing however the father provided a second CD ultimately entered as Exhibit 13 purporting to represent a completely different conversation at a different time in the parties separation. However this CD appeared to contain the same kind of offensive language and begging tactics that this time directly involved the eldest child, who was placed on the phone to act as something of an intermediary for the parties.

The father could not remember the time frame for the two different CDs and believed that they were perhaps weeks or even months apart. [ 47 ] The father on cross-examination accepted that he did not know the time frame for the CDs but did not believe they were the same day. He could not account for why he had failed to produce the second CD separately from the first CD and why it had not been disclosed when it had been in existence since at least the summer of 2008.

The father had little to say when counsel for the mother entered as Exhibit 30 the CD case into evidence, which read “ We really don't want to play this in Court. You should have a listen and maybe we can talk ” .

Despite the father's allegations that the language on the CD tapes typified the kind of vile language that the mother routinely used, and despite the father acknowledging that he routinely tape recorded and otherwise recorded conversations he had with others “ to protect himself ” , he could not produce any other tape recordings to evidence the bad language or behaviour of the mother. [ 48 ] The father conceded that there had been numerous calls made to the Police by the parties throughout their relationship but was unable to recall how many times he or his family had involved the authorities, or how many times the eldest child had been involved in such activities.

He was unclear what involvement Child Welfare had had and later lamented that despite his attempts to engage Child Welfare they did not want to be involved because the children were “ Reserve ” children such that Edmonton Child Service's Department would not get involved.

It was clear that the father was upset with the authorities' lack of involvement in his divorce. [ 49 ] When asked about the specific role that the mother should have with the younger child, he stated that the care responsibilities should be with the mother but then said she should do the extracurricular activities because "the child never does those with me because I have no time ” . He advised the Court that neither of the children listen to him and that both do what they will do.

He advised that more recently the younger child has begun to run away from him when he attempts to insist that child do something he does not want to. This behaviour already exists in the eldest child. Finally he advised that the eldest child and the younger child are not as close as they used to be. The younger child enjoys being with friends from his school and the eldest child has become closer to her cousin Martin, who is closer in age and interest than the younger child.

He disagreed with Counsel for the Children that eldest child believes she has a parentified role towards the younger child. [ 50 ] The father denied any infidelity on his part but was non-committal regarding his relationship with his current girlfriend, Faye, who was present in the Courtroom throughout most of the viva voce hearing. Also present was the father's newest child, a baby fathered by him with Faye. The father could not describe his future plans in terms of employment, residence or parenting but said simply that he wanted his divorce over so he could plan his life.

When reminded that he was in fact divorced in February 2011, he disagreed saying that the divorce was only a piece of paper that he had been tricked into signing. [ 51 ] His handwritten letter of reconciliation to the Plaintiff entered as Exhibit 28, the date of which the father could not remember but is listed on the correspondence as April 8, 2007, was said to be a controlled lie by the father to help control the time frame for ending his relationship with the mother. In his letter the father admits to being duplicitous and providing to the mother what he thought she wanted to hear.

He maintains that the issues were all the mother's regarding her depression and could not answer questions regarding why

he had not at all referenced her drinking in his letter. [ 52 ] Finally the father believed that he was a victim of the system that was geared towards protecting women. He testified that he had complied with Court Orders and that the mother was uncooperative and that was the problem. He wished the younger child have visits when the child chose on the terms that he suggested, and advised the Court that this is what the child wants.

Witnesses Called by The Mother Ruth Roberton [ 53 ] Ruth Roberton is a work colleague of the mother who has known her for nearly 13 years and been very close with her for the past 3 ½ years. She advised that the mother is a very private person who is hard to get to know. She describes the mother as highly structured, an immaculate almost obsessive housekeeper, and very involved parent pre-separation. She felt that the mother was very lonely during her married life, being responsible for all aspects of the children's development and care with little emotional support from the father.

She described the mother as hardworking, honest with no disciplinary issues or problems. She also did not believe that the mother had either alcohol or gambling problems, and testified that their entertainment outings together involved one or two attendances at the Casino each year. [ 54 ] Ms. Roberton testified that she had more limited involvement with the parties' family during their marriage. She had been to their various homes throughout their marriage but generally when the father was not around. She was able to see the mother interact with the children and noted no issues or problems.

She describes an affectionate and warm relationship between the younger child and his mother and a less physically affectionate relationship between the mother and the eldest child. She proudly indicated that she had been asked to be the God-mother of the younger child. She had had limited involvement with the children's activities but was aware of what the children were involved in and the requirements for same. She understood the mother to take the children to their respective polish dance and music lessons and also to native dance lessons. The parties had a piano in their home for the children to study on.

She had also been involved in some of the cultural aspects of the mother ’ s family including attending a Pow-Wow. She had met both the S. and the A. side of the family and felt that the S.'s were involved in the parties' home life. The A. side was less involved and the mother was estranged from 2 of her sisters. She testified that the mother ’ s upbringing was difficult and that family was important to the mother. [ 55 ] Her involvement with the children became more limited after separation and she saw the eldest child on only a few occasions, which generally involved some form of spa treatments.

She saw the younger child more frequently with the mother however she noted changes in him as early as 2008 and noted that by mid 2011 the contact virtually stopped and the mother was very frustrated and upset by this. Generally speaking, the mother had been very affected by the change in contact with her children, her weight was down, she was depressed and her concentration was limited. [ 56 ] Ms. Roberton testified that she believed the divorce had gotten out of control and things had escalated to a point that the mother never wanted.

She had always understood the mother to want equal and involved parenting of the children and not to remove the father from the children's involvement. She believed that the father and his family had made it impossible for the mother to have a relationship with the children and that the children were encouraged to disrespect her and to hurt her. [ 57 ] The Court asked direct and specific questions of Ruth Roberton and played the two recorded conversations contained in Exhibits 9 and 13 for her comments and observations.

The witness testified that she could not believe the language used and did not believe that to represent the usual way that the mother spoke. She testified that she disliked profanity and did not feel that represented the mother. It also did not change her opinion of the mother or her character. [ 58 ] In listening to the recorded conversations, the witness believed the conversations to form part of a series of conversations from the same period of time, and recalled an incident completely out of character for the mother in which she had come over to her home in approximately July 2008 distraught and frantic.

The mother had been promised money by the father and she had no money in her purse, no food in fridge and most alarmingly no fuel in her car. She did not even have the ability to get home. The eldest child had been with her on this visit but she could not recall the eldest child's behaviour except to say that she was stoic. She told the Court that her emphasis was on the mother and on consoling her, because of the desperate position she had been placed in. She did not have clear recollections of what the eldest child was doing or whether she assisted in consoling her mother. She testified that she had given the

mother $100.00 to help the immediate needs of the mother, and advised that the mother was very grateful for this assistance and had since repaid the loan of $100.00. [ 59 ] She did recall social events that involved all parties drinking but no excessive behaviour or untoward behaviour by the mother. She did recall one strange incident at a New Year's party in which the father had thrown bills (paper money) at a buxom woman. She could not elaborate on this behaviour. She reported no incidents of the adults drinking around the children or inappropriate parenting. [ 60 ] Ms.

Roberton also testified to her involvement with the mother in the Edmonton property when she and the mother had gone to the home to retrieve personal belongings of the mother. She maintained that no items of the children or the father were taken away from the property and that no damage to property occurred. She was horrified to later be served with a Replevin Claim by the father and his then girlfriend, alleging theft and damage to their property.

She also described an incident reported to her by her Replevin Counsel in which RS had approached and threatened her Counsel not to use his address or contact him. [ 61 ] Ruth Roberton did not claim to have knowledge of the parties' inner relationship and she believed that there was a fair bit of drama in their relationship. Her interactions with the mother and the children were positive and she had no concerns about the mother's parenting or relationship with the children.

She viewed the request for the mother to be granted sole custody with no contact to the father or his family as one of frustration and desperation and not

an act of aimed at removing his parental involvement. She was upset with the escalation of acrimony and of the mother ’ s damaged relationship with her children. NMA (The Plaintiff Mother) [ 62 ] The mother acknowledged that there was behaviour and actions she took within the divorce context that she was embarrassed about and that she wished had not occurred, but she did not attempt to downplay her involvement. She indicated that it was excruciating to listen to the recorded CD's of herself and she was disgusted with what she said.

She was clear and adamant that the disparate conversations were in fact part of a series of conversations that occurred over a one-day period in mid 2008 when she was living in the Millwood's rental home. This represented her "darkest days" of the separation. She reported being completely dependent on the father for monies that he had agreed to provide her with. She was without work and had been denied the return of her hairdressing supplies that would have allowed her to return to Spasation, her employer. She didn't have any money and had been threatened with eviction for later in the month.

She indicated that the two CD's represented one and the same event and were the same incident when she ultimately ended up at her friend Ruth's home where she borrowed $100.00. She also could not really recall the eldest child's demeanor during the day, as she was herself broken and frantic. [ 63 ] The mother attempted to create a timeline for events, living arrangements and the parties' tumultuous relationship. She described the father as an absent father leaving her responsible for the children and sometimes transportation of the father's younger brother, MS.

The mother described the involvement of the S. family in their home life as pervasive and oppressive. She was not accepted by the family and does not care for many of them. [ 64 ] She advised the Court that the parties had had in excess of 20 separations ranging in time from several days to one separation that spanned 1 ½ years. This separation commenced Christmas Day 1995 when the eldest child was newly born and she recounted spending Christmas Day at a Women's Shelter.

She advised of the numerous Police involvements always resulting in the absence of laid charges because of the “ he-said she-said ” nature of the complaints. The mother testified that the handwritten letter of the father Exhibit 28 was a true indication of the parties parenting and responsibilities. She was responsible for the children's care, housekeeping and maintenance and the father worked outside the home. He was an absent father and according to her, he was also involved in various infidelities for which she attempted to involve his parents to resolve his behaviour.

She described her relationship with the Defendant's younger brother, PSeter, and how the father would bring up this relationship when the parties fought. [ 65 ] During the separations, the children would generally stay with her. The father would attempt to reconcile with her by showering her with gifts and promising to change. [ 66 ] Following the 2008 separation she was in a bad place and unable to care for the children who returned quickly to live with the father's parents. She was unsure where the father was living throughout the separation period. Her relationship with eldest child

deteriorated from this point, however she was clear that she had never laid a hand on the children and that she never would. [ 67 ] While poor at recalling specific dates of altercations, the mother had good incident recall and was consistent with her description of events. Regarding the incident in February 2009 with the eldest child and the cell phone, she advised that she had never assaulted the eldest child but simply wished to remove the cell phone from her because of eldest child's disrespectful conduct towards her.

She was later in the day met by Police due to a complaint of assaultive behaviour against the eldest child, which was not pursued by the Police when the mother challenged the witnesses recollections of events, and it was determined that the material witness to the assault was the father's present girlfriend, Faye. [ 68 ] The Plaintiff recounted concerns of alienating behaviour with the eldest child, which were documented in Affidavit materials filed at Court, but little was done.

She advised that the eldest child had reported to her incidents of being told things by the S. family about her, including that her mother did not love her. She also testified that the eldest child had told her about a specific ultimatum she had been given by the S. patriarch, RS, to not have anything to do with her or risk losing the support of the whole family.

The mother was also able to recall an incident in the S.s' liquor store where she heard the same style of ultimatum again being given to the eldest child. [ 69 ] She recounted the conduct of the Defendant at the eldest child's birthday parties in 2008 and 2009 and how he had brought his girlfriend to the party despite a Court Order that precluded that.

She also testified that the Defendant and his girlfriend had caused a scene at the 2009 party, broke her cell phone, assaulted her and then approached the eldest child in front of her friends in the swimming pool to say they were leaving. [ 70 ] The mother testified that by March 2010, with the incident occurring at the Edmonton property, the eldest child ceased virtually all involvement with her and had made up her mind about what was going on. The mother then started to notice the same kind of withdrawal and behaviour by the younger child at an accelerated pace.

She described eldest child's involvement in the wishes of her brother and impacting her relationship with the younger child. [ 71 ] The mother testified that she has never had a problem with either drinking or gambling and that these have been created by the father and shared with the children in an attempt to alienate her from them. The mother agreed that she had spent money early on after the parties ’ separation in the casino in and around January and February 2008, largely out of spite for the father. She acknowledged that this was shortsighted and wrong, but also that it was short-lived.

There was no truth to the suggestion of drinking problems although alcohol has always been a part of their lives, from social functions in which all parties partook in alcohol to the operation of liquor stores and the presence of the children at such liquor stores. [ 72 ] The mother advised also that she had had two psychiatric episodes in the very distant past, while a teenager, and had attempted suicide due to her depression. She denied ever-mixing drink with pills or attempting suicide in the children's presence.

The mother acknowledges that she smokes however she does not do so in the presence of the children. Similarly she does not drink in the presence of the children. [ 73 ] The mother denied being the aggressor in the relationship and provided a series of incidents demonstrating the harassing nature of the father and his family.

These included Police involvement suggesting she had abandoned the children, allegations that she was intoxicated and was suicidal, attempts at involving Child Welfare, harassment at her place of work, to involving the children in staged phone conversations and encouraging the children to gather and manufacture their own documentary evidence. During her testimony the mother advised that during the initial Court hearing on October 7, 2011 she had been transferred from her Spasation location due to her ongoing marital problems and that this amounted to being fired from her employment.

In her words she was trapped by the father and damned either way. If she relented and left the children where they were, the father would accuse her of abandonment; and if she attempted to see the younger child, then he would do everything in his power to keep the younger child from her. [ 74 ] Since October 2009 she has been in the same residential location, which is set up for the children having their own space, and is close to school, shopping and leisure amenities.

The mother is willing and able to care for the younger child, and will see that his needs are met. [ 75 ] The mother advises that the recounting of the incident by the eldest child of April 19, 2011, Exhibit 37, is inaccurate and the

description of events by the school principal is much more accurate. There was no assaultive behaviour against the younger child, however, the day and event was ugly and is indelibly etched in her mind. As a result of this the mother kept the child from school the next day and took him to see the Psychologist, Dr. Seitz to share his feelings. The reason she did not return the child to the father over Easter was because she now feared this would be the last time she would see him, which fear has been borne out by more recent behaviour.

The mother advises that the child was not physically harmed by the events of April 19, 2011 and that his subsequent sore neck was not causally connected. Moreover she advises that the father was made aware of the child's sore neck at the time that it occurred and it was only at the hearing of this matter had he made an issue of same.

It was this incident that represented her only non-compliance with any Court Orders made in these proceedings. [ 76 ] The mother then went on to describe her involvement with younger child since the making of the Without Prejudice June 2, 2011 Order and advised that despite the very reduced access time provided for in the Order, even that has not been complied with and she has seen the child perhaps 20% of the time.

During the summer months she was permitted no contact with him despite attending, as scheduled, at the YMCA parking lot. [ 77 ] The mother is aware of what child thinks of her and what his wishes are however she asserts that he was never free to come to this opinion or to hold those beliefs. She has not done anything that would lend credence to his beliefs and he is manipulated by what the S.'s tells him about her. The mother believes that child is encouraged to be disrespectful and that he knows he will be punished if he demonstrates any feelings for her.

She is heartbroken. [ 78 ] When asked about what she feels the parenting roles should be in future she advised that she always envisioned the parties sharing the children and sharing time. She is saddened by asking the Court for sole custody and a no contact provision with the S. family but does not believe that in the absence of such a strong direction and Court Order that anything can change for her. She agrees with Dr. Seitz position regarding children of alienation that sees the child placed with the targeted parent.

Analysis [ 79 ] Of the fourteen persons indicated on the father's witness list only seven testified, three others were added to his list and a total of five had no evidence to provide regarding parenting. The witnesses who were provided were either providing generalized character complaints that were historical, or were otherwise family members whom the mother maintains are involved in the alienation process. The father failed to provide witnesses that could actually speak to parenting issues for the children involved.

He failed to produce his present girlfriend, Faye, whom even his family testified was the closest bond to the younger child; and his mother TS, who had residential care of the children and was likely the primary caregiver through the majority of these proceedings. [ 80 ] The father failed to substantiate his claims that the mother would mentally and physically abuse him, and burn him with cigarettes. His allegations with respect to the extent and nature of Family and Social Services and EPS involvement were not generally substantiated.

The father tendered into evidence Police Reports, then advised the Court what they stood for, when the actual Reports did not actually often support his allegations. [ 81 ] The father tendered evidence in the third week of the hearing, procured by his eldest child surreptitiously taping a relative of the mother ’ s at his request and on his guidance.

The information proferred by the father to substantiate continued sustained drinking problems involved his parent's friends opining on the mother ’ s one night of poor conduct at a familial event immediately following the parties' separation. [ 82 ] The father demands stability for the children while advising the Court that he has moved no less than five times since separation, and he has no specific plans regarding either obtaining future employment or providing for his growing family.

His own witnesses testified to him not even being capable of providing for his family. [ 83 ] In the father ’ s written submissions, the child and the Court has been poorly served by all the lawyers involved in the case, and by the mother. The father argues this case is not one of parental alienation but rather realistic estrangement of the children from the mother. He submits that estrangement between a child and a parent is defined as the diminishing relationship between a child and a parent and can have many causes. He highlights the following causes for the estrangement: –

a) The mother ’ s conviction of assault in 1992. This event occurred prior to the birth of either child and would only be known to the younger child if he were told about it by someone.

b) The children in 2006 allegedly witnessing the mother chasing the father with a knife. The younger child would have been age 4 at that time and one should question if he would have any independent recollection of this event, other than what others may have shared with him.

c) The mother not continuing marriage counselling to address problems in the relationship in 2005. The younger child would have been 3 at this time and would not know this fact unless someone else had told him of this.

d) The mother going missing in May 2006 and the father suspecting that she was going to commit suicide. The younger child would have been age 4, so it is doubtful he was cognizant of the fact unless it was shared with him.

e) The event of RS ’ s 60th birthday party in January 2008 when the mother was drinking, made a scene and was asked to leave. The younger child age 6 was not present but could have been embarrassed had he been told by others of his mother ’ s behaviour.

f) The mother spending money in 2008 on gambling at casinos and alcohol. It is unlikely a 6 year old child would know of this unless this information was shared with him by others.

g) The mother verbally abusing the father as recorded on the CD ’ s. Tthere is undisputed evidence that this happened in front of the eldest child but no evidence of it happening in the presence of the younger child. This behaviour could cause estrangement with the eldest child as she was present but no evidence was led that the younger child was present for this to have contributed to his alleged “ realistic estrangement from his mother. The evidence of the mother calling Aunt Rachelle a nickname of “ pig ” when the younger child was present could add to his dislike of her behaviour.

h) The incident of the damaged trailer. No evidence was led that the younger child was present when this event allegedly happened therefore any information he would know about that would have to have come from another family member about her “ risky and dangerous life ” . This would not be the younger childs ’ s own independent recollection.

i) The alleged Hit and Run in 2008. There was no evidence led that the younger child was present when this event happened, therefore any information he would have about that incident or the mother ’ s reckless and irresponsible behaviour would have come from another family member, not his own independent recollection.

j) The events of February 18, 2009 when the mother allegedly pushed the eldest child and took her phone. The evidence was unclear if the younger child witnessed this or not however I agree that this incident may well have contributed to the eldest child ’ s estrangement from her mother and possibly contributed to the younger child ’ s feelings, if it was communicated to or witnessed by the child.

k) The Passport issue which precipitated this high conflict custody dispute. This could have caused anxiety for the younger child then aged 7 as he did not know for sure if they were going on a trip or not until the last minute. However if it caused the younger child to be angry at the mother, he was still content to spend a month with her upon his return and continued visiting with her on a regular basis thereafter. It is unlikely that this caused estrangement but I acknowledge it could add to his nervousness about being allowed to travel in the future, although is not something most 7 year old children generally turn their mind to unless this concern is raised with them.

l) The oldest child being kicked out of her mother ’ s house on January 13, 2010. There was conflicting information on what transpired that day as the eldest child and the younger child were fighting over a balloon but it was acknowledged by all that the younger child was still willing to continue the one week on /one week off visits even after this incident even though the eldest child was not going to be there at his mother ’ s. The mother was not willing to have a relationship with the eldest child thereafter and the eldest child was angry as a result of the event.

This could certainly contribute to estrangement between mother and daughter. The father does make an interesting point that alienation would be a logical assumption if the children not wanting to see the mother took place simultaneously

with the event, but it didn ’ t. It was not until about two months later when the property went missing from the Edmonton home, that the younger child began to refuse visits and the eldest child began getting actively involved in preventing the younger child from going to mom ’ s from the school.

m) The break-in on March 17, 2010 to the Edmonton property when allegedly the children ’ s possessions went missing from the home. This was a pivotal event and it changed the younger child ’ s position of wanting to see his mother. Hearing about the bad things that his mother had allegedly done, no doubt had a negative effect on him.

Although he did not see her take anything, he was told by the father and others that the mother was the one who took them, and that she was a “ thief and a liar and stole his snowboard. ” The younger child was no doubt aware that his sister was involved with the police and provided a witness statement against his mother. This kind of behaviour could arguably contribute to estrangement or be evidence of alienation, either way it had a profound impact on the future relationship between the younger child and his mother and the eldest child and the mother, which greatly impacted the younger child.

n) The incident with the younger child at school March 24, 2010. This was the first evidence of the oldest child actively trying to stop the younger child from going on his visits with his mother. It was also likely that the younger child was still angry at his mother over the removal of the personal items as he felt she had done bad things at his father ’ s home. The mother may have taken his snowboard as the younger child saw her cigarettes and food in the house. There is no question this event had a negative impact on the younger child and highlights how the financial and property issues have contributed to the high conflict custody and access dispute.

o) The events of the eldest child trying to get her things on April 8, 2010 from her mother ’ s home. This was not witnessed by the younger child but no doubt he was aware of what transpired. If this was shared with the younger child that his mother called the police on the eldest child, this would have caused concern for him. The father failed to have any insight into the fact that his brother and his father attending and videotaping what transpired between the eldest child and her mother was not a good thing, as the focus was on evidence collection rather on damage to the mother-child relationship.

The father ’ s comments focus on the mother ’ s poor parenting skills in calling the police even after she had asked them to leave numerous times. Arguably this was indicative of active alienation rather then realistic estrangement.

p) The mother is not taking the younger child to Polish activities. This could certainly have impacted on the child ’ s wanting to spent time with her. There is no question that the younger child ’ s Polish school, dance and cubs are important to him. Therefore missing these fun events for him would cause resentment towards his mother and possibly contribute to feelings of estrangement. The importance of maintaining the younger child ’ s

schedule cannot be undervalued in this matter.

q) The March 13, 2010 incident where the father believed the mother was drinking as he had difficulty getting a hold of her to return the younger child. The father argued that the younger child was aware of the fact that his mother was drinking and was scared to return to her care but how was the younger child aware of this? The evidence of the parties at trial on this point was opposing but there was evidence of drinking and that certainly contributed to the younger child ’ s not wanting to be with his mother. This could contribute to realistic estrangement if the evidence was as alleged by the S. ’ s that the mother ’ s drinking was a constant and reoccurring event.

r) The events of the younger child running away from the mother ’ s home. It was argued that her reaction was feelings of helplessness demonstrate her focus on being a victim and shifting the blame to the S. ’ s alienation. The father submits that her actions have caused the realistic estrangement to occur because she is unwilling to empathize with both children.

s) The incidents at the school on April 19, 2011. The father alleged this led to the younger child ’ s torticollis because he submits that it was during the struggle to get the younger child in the car that the mother damaged his nervous system or muscles, then lied about keeping him out of school and denied access on the Easter 2011 access weekend. The evidence indicated that the younger child certainly did not want to go on the visit and was upset about being made go in a physical manner. This could lead to feelings of estrangement for the child.

The school representatives did not feel there was an assault on that date. The younger child at no point said to the doctor that his neck had been hurt by his mother, and he had also seen Dr. Seitz during that time frame and did not disclose his neck had been hurt by his mother. The father did not raise this as a concern until six months later mid trial. That day was horrific for the younger child and all involved. There is still a lack of insight by the father as to the role that the eldest child played in the events of that day and the estrangement vs. alienation issue.

The events of this day did contribute to the younger child ’ s behaviour and reaction to his mother getting more and more destructive.

t) The mother not allowing the younger child to take items from her home. This did add to deterioration in the relationship between the mother and the child, however adults wanting to place a great deal of weight on this also display a lack of insightfulness in the child ’ s reaction.

[ 84 ] The father argues that the children prefer him and his family because they keep the children busy with trips to Poland, Mexico, extracurricular activities and family functions, whereas the mother does not involve her family with the children or in the custody and access battle. The younger child clearly enjoys time with the S. extended family, and the younger child has spent the majority of his time since the parties separated in 2008 with his father ’ s extended family. [ 85 ] The father argues that the exclusion of the eldest child in the Practice Note 7 Intervention greatly distorted Dr.

Seitz ’ s image of the mother, and unfairly portrayed her in a positive light as the eldest child ’ s concerns about her mother were unfairly ignored. However during the period that the PN7 was conducted from June 3, 2011 to the release of the report dated September 23, 2011, the father raised no such concern, nor did he request that the eldest child be part of the interviews. The application brought before the Court by the father in March 2011 was to vary the younger child ’ s residential arrangement from the one week on /one week off arrangement.

He made no request to change the eldest child ’ s living arrangement, to have her spend time with her mother, to work on a therapeutic intervention to assist on improving the relationship, or to evaluate that relationship. The father was aware that all the appointments from June 3, 2011 to September 22, 2011 were for the younger child, and one interview with each parent. He at no point requested that the eldest child be seen by Dr. Seitz. He was fully aware that the eldest child had participated in counselling with Dr. Seitz and Dr.

Seitz was aware that the eldest child was not seeing her mother and that access was in the oldest child ’ s discretion. The oldest child had previously shared with Dr. Seitz that she did not want to attend any counselling sessions and saw no need to attend therapy. When she was last seen by Dr. Seitz on May 3, 2011, she did not know why she was there other than her grandfather had said she looked sad and should give Dr. Seitz her letter dated April 20, 2011 about what had happened on April 19, 2011. Had Dr. Seitz felt the eldest child ’ s participation was necessary, she would have requested this.

The oldest child ’ s own disclosures and comments made at the May 3, 2011 meeting with Dr. Seitz of her role in interfering with the younger child going on visits provided disturbing information that she was actively involved in keeping the younger child from going on visits with his mother.

In addition, the eldest child ’ s efforts of reestablishing a relationship with her mother at various times were suspect in time and motive. [ 86 ] The father provided the Court with recent filed submissions dated March 2 and 9, 2012, as well as presented further evidence and oral argument on June 12, 2012, but there was little of material interest in the most recent submitted documents/evidence.

Conclusion [ 87 ] It is clear that the parties had a volatile history and that there was physical and verbal violence that the children may have witnessed, however the Court must pay close attention to the time frame and the role/involvement of the parties. The father's allegations of misconduct against the Plaintiff are generally dated and historical.

The misconduct complained of by the father occurred in places and at times well preceding the Custody Orders, and the ultimate Divorce Judgment that the father agreed to. [ 88 ] The father cannot seemingly abide by any agreement, nor will he be bound by any Court Ordered access for the mother that he finds disagreeable to he and his family. [ 89 ] His conduct in these proceedings and the two prior years in Case Management demonstrate an individual who even after having agreed to terms and conditions will not be bound by or who cannot follow what is ordered, unless it suits him and his extended family. [ 90 ] The Court must decide what is in the best interests of this young now 10 year old child in a very high conflict multiple year case.

It is clear that joint custody will not work. There is no possibility for cooperation on issues of parenting on the part of the father if he finds the Orders disagreeable. The situation is made more difficult where the child, now currently age 10, has established views regarding what he wants. [ 91 ] Counsel for the child has taken a very useful and helpful amicus role rather than a role of pure advocacy for the children in large part due to the child's relatively young age.

Counsel for the Child would like to see the child ’ s views respected, and believes that both parents should be involved in the child ’ s life. This would normally be the best situation for the child. At age 10, the child is clear regarding what he wants – he wishes to remain with the father/extended family and have limited self-determined access with the mother. [ 92 ] However the child ’ s articulated wants are not determinative in these circumstances. This child has not had the ability to form

his own opinion regarding what he wants as he exists within a conflicted and controlling family. This position is described by the ChildPsychologist, Dr. Seitz, who in meeting with the child and various family members documents a tense and constrained child who"clearly had been coached and was very much aware of the expectation that he must communicate what was expected of him".

The childhas clearly been alienated by the S. family as children who "are 9 years old do not normally decoded that they do not want to see a parentbased on vague assertions that parent drinks and/or smokes". [93] The child does not have the necessary cognitive development to be able to make an informed and reasoned decision aboutwhere or with whom he should live. [94] The younger child's views are cemented by his extended family including his sibling, who has been weaponized against hermother, including her letter marked as Exhibit 38, her recorded conversation between herself and the maternal cousin Exhibit 47 track 1,and the videotaped events with respect to personal item retrieval from the mother’s home.

Exhibit 48 is clear about the level ofinvolvement of the S. extended family, as both the Uncle KS, and the family Patriarch RS, are present and featured on the videotapetaking the oldest child, then aged 14 to the mother’s home, where the teenager is then left to instigate an altercation with her mother forthe return of various property and to sit in the doorway of her mother's home while the Police are contacted. [95] The younger child's views towards his mother have not always been negative as the child advised Counsel for the Child thathe wanted the weekly parenting rotation to continue, even after the eldest child had ceased contact (Exhibit 19 Counsel for the Childletter dated 11 March 2010).

This was until the purported break and enter event in March 2010, when the child's views quickly changed.The child's views are a by-product of his paternal families involvement in the proceedings. [96] However the father does not fully appreciate the harm created by this conduct, and in fact maintains that he and his familyhave done nothing wrong. Dr.

Seitz seized on this point in her Practice Note #7 Report when she opined, "Counseling and education arenot normally useful with individuals who lack awareness of a need to change or improve ... [AS] clearly stated that he has no intention ofabiding by the Court's decisions. In this circumstance, recommendations from psychologists could be expected to have little impact." [97] Dr. Seitz went on to say that it was the Plaintiff mother who had demonstrated reasonable intentions with regard to theyounger child "that appear to be more appropriate and aimed at his wellbeing".

Similarly, the younger child's school Principal indicatedthat the mother's attitude towards the school had been deferential and cooperative. As the focus is on the best interests of the child, Iconclude that the mother is in the best position to meet the mental, emotional and physical needs of the child. [98] It is the mother who recognizes the need for stability for the younger child and remains committed to continuing him in theschool he knows, and involved in his extracurricular activities.

The mother also seeks to involve the younger child in cultural activitiesthat follow her Aboriginal heritage including a return to native dance. Such opportunities would not exist in the S. household. [99] Finally it is the mother who offers the greatest residential stability having been in her home for the past 3 years. The fatherhas moved at least 5 times since the separation and has sporadically provided the Court with details regarding his address.

He has notfully articulated his current involvement with his girlfriend Faye and the advent of his newest child in formulating a future parenting planthat incorporates the younger child. [100] Without strong and decided clear involvement by the Court, the younger child will be lost to the targeted parent.

Where thislevel of active alienation has been demonstrated the Court has removed the child from the involvement, influence, control andmanipulation of the domineering and overly needy parent, for a cooling off period of time: RAL v RDR, 2007 ABQB 79; PSM v AJLC(15 February 1991) Montreal 500-12-184-613-895; Neill v Best (1995), (NS FC), 147 NSR (2d) 54 (Fam Ct);MacDonald v MacDonald (1989), (NB KB), 100 NBR (2d) 121 (Q.B).

In certain instances the Courts have gonebeyond a cooling off period to impose a complete denial of access to the alienating parent where no reasonable hope that the conflictwould be resolved occurs, and no other solution would be expected to resolve the continued problem: Scherf v Tassou (1978), (AB KB), 12 AR 487 (SCTD); Starko v Starko (1992), (AB KB), 129 AR 225 (QB). [101] Given the current level of vitriol, the continued conduct, the absence of insight as to the effect that the conduct is having, theongoing alienation and the developmental damage to the younger child, and the inability of counselling or intervention to deal effectivelywith the situation, I conclude that only a complete denial of contact/access will allow the child to have the opportunity to develop

appropriately and have a normal relationship with the mother. [ 102 ] My October 21, 2011 Order granted defacto split custody of the child on an interim agreed basis between the Parties. This was replaced with a much more draconian Interim Decision with respect to the child dated December 14, 2011 in Reasons now reported at 2011 ABQB 788 .

The December 14, 2011 Order read as follows: – UPON this matter coming before the Court by way of trial in October 2011; AND UPON NOTING that the final Judgment of Justice Lee has not yet been rendered; AND UPON NOTING that the Order of Justice Lee granted 21 October 2011 as regards custody, access and parenting time issues has been suspended and replaced with this Order: AND UPON the Court being advised that the name and birth date of the child in question is: IT IS HEREBY ORDERED THAT: 1. The Defendant is in contempt of the Orders of Justice Lee granted 21 October 2011. 2.

The Plaintiff shall immediately have sole custody and residential care of the child of marriage, until further Order of this Honourable Court. 3. There shall be no contact or access with the child, by the Defendant, or his extended family members, until further Order of this Honourable Court. 4. The child, shall continue to attend St. Basil ’ s School in Edmonton Alberta. 5.

The Defendant and the [S.] extended family members are restrained from being within 200 metres of School, the Plaintiff ’ s residence, being ___________, Edmonton, the Plaintiff ’ s place of employment, and from being within 100 metres of the Plaintiff anywhere else in the Province of Alberta. 6. The parties are hereby restrained from harassing, molesting, watching, following, telephoning or otherwise interfering with or contacting each other, either directly or indirectly, and either personally or by agent, anywhere in the Province of Alberta, except as otherwise provided in this Order. 7.

Contact between the parties in the presence of legal counsel, at mediation, at Family Restructuring Therapy or court proceedings shall not be considered a breach of this Order. 8. The parties complying with the terms of any current or subsequent Queen ’ s Bench or Provincial Court Order with respect to the parenting of the parties ’ child, and any contact between the parties arising from a current or subsequent Queen ’ s Bench or Provincial Court Order with respect to parenting shall not be considered a breach of this Order. 9.

If either of the parties, or any other person on their behalf, breaches any of the terms of this Order, then a Peace Officer which shall include but not be limited to the Royal Canadian Mounted Police, the Edmonton Police Service, and any other Police force shall provide assistance to ensure that the offending party complies with its terms. Before enforcing the terms of this Order, a Peace Officer must first ensure that the party has been served with a copy of this Order. If not served, the party must be shown a copy of the Order by the Peace Officer and be given a reasonable time to comply with its terms.

If the party fails or refuses to comply with this Order, the Peace Officer shall do such lawful acts as may be necessary to give effect to its terms including, if necessary, arrest, detain and bring the

party at the earliest possible time before a Justice of the Court of Queen ’ s Bench to show cause why the party should not be cited for civil contempt. 10. Any police or peace officer which shall include but not be limited to any detachment of the Royal Canadian Mounted Police, the Edmonton Police Service or any other Police force shall do all acts as may be necessary to enforce the terms of this order, and specifically, to deliver the said child to the care of the party who, by the provisions of this Order, is intended to have the care and control of the said child at the time the breach occurs.

The police officer is given full power and authority to use as much force as may be necessary to carry out the terms of this order. 11. Upon the Plaintiff or Defendant being in breach of any of the terms of the within order, then in such event any Peace Office, RCMP or any other Enforcement Officer shall forthwith arrest the Plaintiff or Defendant, detain him or her, and bring him or her, at the earliest possible time, before a Justice of the Court of Queen ’ s Bench of Alberta to show cause why he or she should not be committed for civil contempt. 12.

This Order is sufficient authority for the keeper of a correctional institution to receive the offending party into custody and to safely keep the offending party pending an

[…]