NP v PS, 2012 ABQB 38

Court of Queen ’ s Bench of Alberta Citation: NP v PS, 2012 ABQB 38 Date: 20120127 Docket: FL04 00879 Registry: Grande Prairie Between: N. P. Applicant - and - P. S. Respondent Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment, in addition to the identifying information that was omitted in the filed judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R. J.

Hall _______________________________________________________ [ 1 ] The issue before the court in this application is which parent should have primary care of the parties’ son, M. The application proceeded by way of a three day viva voce hearing. Included as evidence at that hearing were affidavits filed by each of the parties and by some of the witnesses. In addition the parties filed an agreed Statement of Facts.

[ 2 ] The parties resided together as a common law couple commencing in 2003. Their son, M., was born in 2005. The parties separated initially in May, 2008. Mr. S. returned to Alberta to visit in December, 2008 and stayed with Ms. P. until August, 2009. However the parties separated at that time and have been separated since. After separation until January 23, 2010 M. resided with Ms. P. in Grande Prairie, Alberta. [ 3 ] On January 23, 2010, M. and his older half-brother T., went with Mr. S. for a visit to Mr. S.’s family home in Nova Scotia.

Around January 30, 2010, T. was sent home but M. remained in Nova Scotia. On March 22, 2010 Ms. P. commenced an application for the return of M. to her care in Alberta. Affidavits were filed and the matter was heard on June 14, 2010 and set for a special chambers hearing September 9, 2010, with telephone access granted to Ms. P. during the interim. In addition, direction was given to have M. made available for a visit with his mother when Mr.

S. attended for questioning on affidavits which occurred on August 20, 2010. [ 4 ] M. was enrolled and attended kindergarten at [...] Elementary school in Halifax from September 6, 2010 to December 23, 2010. [ 5 ] The matter was again in court on September 9, 2010, and again on October 20, 2010. At that time an order was granted directing that M. be returned from Halifax to his maternal grandmother’s residence in [...], Alberta pending receipt of disclosure from Child and Family Services (who had initially become involved at the request of Mr.

S.). [ 6 ] On December 23, 2010 an emergency application was made for a police enforcement clause to the order of October 20, 2010, as M. was still in Nova Scotia and no date of return had been established. M. returned to Alberta on December 30, 2010 and has resided with his maternal grandmother, M.P. since that date in B[...], Alberta. [ 7 ] M. attended [...] school in B[...], Alberta from January 11, 2011 to April 12, 2011. M. stopped attending school from April 13, 2011 through to the conclusion of the school year on June 16, 2011.

M. entered grade 1 in September, 2011 and continues to attend [...] school in B[...], Alberta in the grade 1 program. [ 8 ] On June 24, 2011 Ms. P. filed an application to vary the parenting order of October 20, 2010 to have M. returned to living with her. On July 18, 2011, Mr. S. provided a statement to vary parenting. On July 25, 2011 the matter was set down for this special chambers application including viva voce evidence. [ 9 ] The Applicant Ms. P. appeared as a witness at the hearing. In addition, the Applicant called viva voce evidence of the maternal grandmother M.P. and two friends A.J. and D.A.

The Respondent gave viva voce evidence, as did Mr. Michael Belgrave, accepted by me as an expert qualified to give opinion evidence respecting parental attachment issues between child and parent; and as did the parental grandparents S.H. and J.H. [ 10 ] The evidence of the Applicant was far from satisfactory. It became clear that, in filing affidavits at various steps along the way, Ms. P. had structured her affidavit evidence so as to create an impression of wrongdoing by the Respondent, when in fact no such wrongdoing existed.

For example, in her affidavits of March 22, 2010 she stated that M. was originally scheduled to return on January 30, 2010. In her viva voce evidence, however, she admitted that there was no scheduled time for M.’s return.

She claims that allegations by the Respondent’s family of sexualized behaviour of M. while he was in their care, arose after she brought her application to have M. returned; however, on cross examination and on the evidence of the other witnesses it was clear that these allegations of sexualized behaviour were raised with her in a telephone conversation she had with the maternal grandmother in February, 2010 well before she commenced her application.

These are just two examples. [ 11 ] In addition, the Respondent has filed an affidavit on December 14, 2010 which provided photographs and detailed descriptions of those photographs identifying that the Applicant’s son T., while at the age of 14 or 15, was using alcohol, with photographs posted on facebook. Notwithstanding that this had been disclosed to Ms. P. in the Respondent’s December 14, 2010 affidavit, further photographs taken in February and March of 2011 disclose consumption of illegal drugs by T. and his male and female friends at the home of Ms. P.

In other words, even after she had been made aware of the partying and use of alcohol by her son T. while underage, the illegal use of alcohol or drugs or both by T. continued in her own home.

[ 12 ] This is particularly disturbing in that, during the period of time in question, T. was the primary babysitter/caregiver for M., as Ms. P. was working during the day and leaving M. in T.’s care. Ms. P.’s evidence in respect to these occurrences and in respect to the photographs was unsatisfactory. She initially denied knowing of the first set of photographs. However, it was pointed out to her that she reviewed those photographs with the police who were investigating the matter at the time.

She told the police that none of the photographs were of the interior of her home, which is clearly untrue, as admitted by her in her cross examination. When faced with inconsistencies in her testimony and her affidavits, Ms. P. became very argumentative on the stand, and then, when cornered, would break down and cry. [ 13 ] In contrast, the Respondent’s evidence was given frankly and candidly. He admitted to an impaired driving conviction at the age of 19. He admitted to use of to use of marijuana while he and Ms.

P. lived together, and particularly as a pain killer after suffering a serious injury in an accident which required a reconstruction of his face and wired his mouth shut, in respect of which he spent most of a year and a half recuperating. He acknowledged being involved in more than one physical altercation with Ms. P. during their co- habitation and since, and acknowledged that he was inebriated at the time of these altercations; he maintained, however, that Ms. P. gave as good as she got in these altercations. [ 14 ] In addition, both Mr. and Mrs. H. gave their evidence in a forthright and convincing manner.

Accordingly, where the evidence of Ms. P. differs from that given by Mr. S., Mr. H. or Mrs. H., I reject the Applicant’s evidence in favour of the evidence given by the Respondent and his parents. [ 15 ] Having said that, however, I find that each of the Applicant and the Respondent are loving parents to M., and that M. loves each of his parents. Indeed, that has not been disputed by either of the parties. [ 16 ] What I must determine is what living arrangement would be in M.’s best interests. [ 17 ] Mr.

Belgrave provided reports and gave evidence, that at the insistence of the Respondent and his parents, M. attended upon him some 36 times (at a cost of $150.00 per hour) between late May of 2010 and M.’s return to Alberta at the end of December of 2010. Mr. Belgrave works in primarily in two areas. The first is to do assessments and advise how to help children whose attachments have been injured, and the second is to process issues, work with feelings and heal disrupted detachments. Mr.

Belgrave acknowledges that he is not qualified to give assessments as the causes of a child’s problem, nor does he try to determine who is a good parent or what would be the best placement for the child. He is not an investigator, but rather he is a therapist and counsellor. [ 18 ] Mr. Belgrave’s assessment is that the behaviour he witnessed and the statements and activity of M. were consistent with children who have a significant disruption in their lives as a result of absence, or emotional unavailability of the primary care giver, or as a result of trauma or abuse or neglect. In terms of treatment, Mr.

Belgrave indicates that, over the eight months of treatment with M. he had seen substantial improvement in M.’s behaviour, attachment and self-esteem. [ 19 ] It is to be noted that Mr. Belgrave did not comment upon the cause of M.’s issues, nor assess blame against either party. [ 20 ] M.’s progress at school is of concern to the Court. M. was enrolled by the Respondent in kindergarten (known was grade primary in Halifax) in September, 2010.

The report cards provided for that term (September to December, 2010) show that, while M. needs a lot of support in the form of help with his reading and other subjects directly from the teacher and the parent, he was getting that help when he was in Nova Scotia and he achieved a high level of academic performance, together with regular school attendance while he was residing in Halifax. [ 21 ] That differs considerably from M.’s experience when he was returned to Alberta. He was enrolled in school in B[...], Alberta starting January 11, 2011.

However, his attendance record for the next few months is unsatisfactory. Then, from April 13, 2011 through to the conclusion of school on June 16, 2011, M. simply didn’t go to school. He was in the care of the maternal grandmother M.P. at this time. M.P. indicates that she couldn’t convince him to go to school, and he would cry all the time, so she didn’t take him to school.

While there was some suggestion made by the Applicant that M.P. was “home schooling” M. during this time, it became clear upon the cross examination of M.P. that there was no home schooling program put into place, and that she was simply practising ABCs with M. from time to time.

[ 22 ] This is further troubling in that M.P. filed an affidavit before the court in June of 2011 in respect of Ms. P.’s application to vary the parenting order of October 20, 2010 and have M. returned to living with her. M.P.’s affidavit was filed in support of that application; however, M.P. failed to disclose in that affidavit that M. had not been going to school since April 12, 2011; which would have been important information for the Court’s consideration. [ 23 ] As noted above, on his own initiative, the Respondent arranged for M. to attend 36 counselling sessions with Mr.

Belgrave. [ 24 ] The order of this Court of October 20, 2010 provided that M. was to reside with his maternal grandmother M.P., and that M. shall continue in therapeutic counselling upon his return to Alberta. Notwithstanding that requirement, the Applicant and her mother did very little to carry out the terms of that order. M. was taken once to see a counsellor Susan Wilson, who provided a short report.

Other than that, no counselling has taken place while M. has been in the care of his mother or maternal grandmother. [ 25 ] Further, the Applicant and the maternal grandmother have been lacking in their attention to M.’s medical and dental needs. While M. was in the care of the Respondent, it was identified by a family physician that M. was close to anaemic, and that certain dietary requirements had to be met.

In addition, it was noticed that M. had a brown mark on one of his teeth, suggesting a cavity, yet no treatment was every sought or carried out by the Applicant for that problem, notwithstanding that the Applicant had dental insurance which would have paid the cost of such an attendance. [ 26 ] The Applicant seeks to have M. reside with her in Grande Prairie. At present, the Applicant resides with her son T. (previously mentioned), and also her infant child (by another father). [ 27 ] With respect to T., Ms.

P. was unable to care for him as a single parent while he was young, with the result that T. was raised by his grandmother. [ 28 ] With regard to the infant child, there are apparently no present plans that his father will reside with and be part of Ms. P.’s family. [ 29 ] Ms. P. is presently on maternity leave from her job at McDonalds Restaurant, but her employment benefits will soon end, and she will be required to return to work. Ms. P. has not demonstrated an acceptable plan for caring for her children when she returns to work. [ 30 ] Ms.

P. faces a further challenge in raising her children in that she is illiterate, and therefore very limited in her ability to assist her children in learning such basic necessaries as reading and writing. [ 31 ] Mr. S. provides a care plan which would see M. residing with him and his parents in Nova Scotia at his parents’ home. His parents’ home is presently a 2 bedroom home, which means that the Respondent and M. would have to share a bedroom, which they did while M. was residing in Nova Scotia with them.

However, the H.s are presently building a new large residence in Nova Scotia which would provide a separate bedroom for M. [ 32 ] The H.s and Mr. S. can provide a stable environment for M. Mr. H. is gainfully employed in his own business. The Respondent works for Mr. H. and has obtained training and ticketing as a tradesman in his capacity there. Ms. H. is retired and therefore available to provide care for M. while her husband and the Respondent are working. [ 33 ] The evidence provided in respect to the time when M. lived in Nova Scotia is compelling.

His misbehaviours were identified by the Respondent and his parents, treatment was sought, obtained and paid for. M. was enrolled in kindergarten, attended regularly, and showed good achievement. M. was taken to the doctor and to the dentist. M.’s progress in school was augmented by attention provided by the Respondent and his parents in the form of reading with M., practising numbers and the alphabet with M., and generally providing a structured and supporting environment.

The Respondent and his parents have both testified to an intention to continue to provide that care, structure and support for M. if primary care is awarded to the Respondent.

Decision [ 34 ] Accordingly, I am firmly of the view that M.’s best interests are served by granting primary care to the Respondent, P. S. Liberal access and frequent communication is to be maintained between M. and his mother. M. should be returned to Alberta for two trips per year, including at least half of each summer vacation and a second trip for half of the Christmas vacation each year. The cost of those trips are

section 7 Extraordinary Expenses under the Alberta Child Support guidelines and are to be split between the two parents in the ratio established by their line 150 taxable incomes. [ 35 ] As there has been some issue or difficulty in the past, the Order consequent upon these reasons shall include a clause allowing the police to enforce the provisions of the Order. [ 36 ] Counsel for the Respondent is directed to prepare an Order reflecting these reasons for review by counsel for the Applicant.

Should counsel not be able to agree upon the terms of the Order, the issue is to be referred back to me for a decision. [ 37 ] Counsel may speak to me regarding costs of this application within 45 days of the date of these reasons. Heard on the 21st, 22nd and 23rd day of November, 2011. Dated at the City of Calgary, Alberta this 24th day of January, 2012. R. J. Hall J.C.Q.B.A. Appearances: Jennifer F. Villebrun for the Applicant Mr. William M. Leahey

for the Respondent