Johnston v. Cunningham, 2012 ABQB 505

Court of Queen ’ s Bench of Alberta Citation: Johnston v. Cunningham, 2012 ABQB 505 Date: 20120802 Docket: FL03 33303 Registry: Edmonton Between: Alice Maryemma Johnston Applicant - and - Tyler Cunningham Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] On the basis of the father ’ s aggressive behaviour towards her, the mother of a one year old child applies for continuation of a without prejudice supervised parenting order. She also asks for continuation of what amounts to sole guardianship of the child, giving her the right to make decisions concerning the child ’ s residence, education and health related treatment. Finally, invoking what she alleges to be the bad reputation of the family name of the father and her own desire to continue her father ’ s family name, she asks for a change of name of the child, from the father ’ s family name to her family name. [ 2 ] The mother ’ s applications are denied.

[ 3 ] Supervised parenting is only appropriate where there has been a demonstration of parenting incompetence; the mother has not established any such incompetence. [ 4 ] Sole guardianship is only appropriate where there has been a demonstration of inability to cooperate in decision-making to favour a child ’ s best interests; the mother has not established any such inability. [ 5 ] A child ’ s best interests is the test for determining whether a young child ’ s name should be changed; the mother has not established that it is in this child ’ s best interests to remove his connection with his father through his name.

Cases and authority cited [ 6 ] By the court: Lipphardt v Chan 2006 ABQB 511 . 1. Background [ 7 ] The parents of a one year old son have had a tumultuous relationship. They have only lived together as a family for approximately one month. [ 8 ] The parties got into a physical argument on October 4, 2011 in which each assaulted the other; the father was charged with, and pleaded guilty to assault. Although the father was subject to a no-contact order, the mother encouraged a breach of the order “ because I still wanted him to be still be able to see ” their son.

Since October 4, 2011, the access by the father to his son has been minimal and artificial: as the mother puts it, “ we would often go out for lunch together, all three of us. I have invited the respondent to my house and he has come and hung out with us. ” In March, 2012, the mother invited the father to her house so that he could see his son; the parents got into an argument and the mother called the police.

The father was charged with assault, mischief and breach of probation (which incidentally must have been a breach other than one relating to a no contact provision since the mother herself initiated the March contact). [ 9 ] Prior to the interim consent parenting order of July 5, 2012, the mother made all decisions concerning where and when the father would be able to see his son.

The July 5 order gives the father specified access times, but states that his parenting time shall be supervised by the mother; the mother has never allowed the father to have access to the child on his own. [ 10 ] On July 16, 2012, another incident occurred between the parents that resulted in charges being laid against the father who is currently detained in relation to the charges. [ 11 ] The mother states that, as a result of the father ’ s assertion to her that when he was a child his own parents beat him, and because he is now living with his parents, she is reluctant to have the father exercise access at the child ’ s grandparents ’ residence.

She is also concerned that the father has not bought a crib for the child. [ 12 ] She states that, as a result of her tradition of hosting Christmas celebrations for members of her extended family, she wants her son to spend every Christmas with her. [ 13 ] The mother states that prior to the child ’ s birth, she had discussions with the father concerning the child ’ s last name and the father had agreed that the child could bear her last name; however, the father then changed his mind, and the mother felt “ pressured ” to go along with that change of plan. 2. Parenting

a) Supervised parenting [ 14 ] The mother has not established that a requirement of supervised parenting is in her child ’ s best interests. [ 15 ] The mother acknowledges that the father has never behaved inappropriately in relation to the child. She states that, from her perspective, she is not controlling but is merely trying to ensure that the child is safe.

She wants the father to prove to her that he can parent, that he has suitable residential arrangements for exercising access and that he has an approved car seat. [ 16 ] Supervised parenting is only appropriate where there has been a demonstration of parenting incompetence; the mother has not established any such incompetence. Supervised parenting is necessarily artificial and amounts to visits rather than to parenting.

Sometimes, however, supervised parenting is required in a child ’ s best interests so as to protect the child, while still maintaining some type of relationship between the child and the parent who requires supervision. Here, the mother has not established that the father is an incompetent parent.

She has established that, at this time, there can only be indirect contact between the parents, but the fact that she has a volatile relationship with the child ’ s father does not mean that the father will have a volatile relationship with his son. [ 17 ] In the result, the stipulation in the interim order that the father ’ s access is to be supervised by the mother is removed. The parents will both respect the existing no contact provisions in court orders.

The father will arrange for a third party to pick up and return his son for access during the month of August, the mother will arrange for access transportation for the month of September, and that arrangement for alternating transportation responsibility will continue from month to month until further order of the court.

Any contact between the parents will relate only to the child and must be conducted by text through third parties; for example, a relative of the mother would have to text a relative of the father ’ s to explain that the child has been taken to hospital and that access cannot go ahead as planned on Wednesday night or a relative of the father ’ s would have to text a relative of the mother ’ s to explain that the father has been stranded in Fort McMurray by a snowstorm and cannot get back to the Edmonton area to exercise access on Wednesday night. [ 18 ] Obviously, every person who transports the child in a vehicle must use an approved car seat. [ 19 ] The

schedule of access times set out in Kenny J ’ s order will continue. In other words, for the time being, the father will not have overnight access. The reason for that is not because of any perceived, much less proven, deficiency on the father ’ s part, but because the court is not certain that the father has had sufficient regular, meaningful, contact with his son to ensure that the son feels comfortable with the father. The father can apply to vary the existing

schedule to allow for overnight access once he has had 3 months of access according to the

schedule established by the parties and approved by Kenny J.

b) Location of access [ 20 ] There is no basis on this application to restrict the location where the father will exercise access. [ 21 ] The memories of an adult concerning his relationship with his parents when he was a child may not be reliable; the father ’ s recollection that he was “ beaten ” do not establish a clear picture of the nature of the physical discipline imposed by the grandparents. The fact that he is currently living with his parents may suggest that he does not, at this time, have any serious concerns about his relationship with his own parents.

Also, public standards concerning physical discipline of children have evolved over time. Even if the paternal grandparents abused physical discipline relative to their own son when he was a child, there is no evidence that they continue to be supportive of that level of physical discipline today. If this matter proceeds to a trial, the mother would, of course, be entitled to attempt to obtain evidence from child welfare or school officials putting context to the assertion of beating.

In any event, however, the father of this child, who is himself now an adult, will have responsibility for the child while his son is in his care. It will be up to him to ensure that the paternal grandparents do not inappropriately discipline his son while his son is in his care. [ 22 ] Physical arrangements for the adequate care of a baby can span a wide spectrum; it is not a pre-requisite for adequate care that a baby have a crib. In any event, however, the father will not have overnight access for some months to come, so concern on that score is premature.

c) Christmas access [ 23 ] Christmas is an important cultural holiday, especially for children. It is not appropriate for only one parent to always have the right to celebrate that holiday with their children. Moreover, the fact that some of the mother ’ s extended family apparently comes to Alberta every year from another province to celebrate Christmas suggests that members of the family will be in Alberta for longer than one day.

Therefore, even if the mother does not have Christmas day with her son, her son will be able to celebrate the holiday with his extended family. [ 24 ] The parents will have alternating Christmas with the child. Because the mother had Christmas with the parties ’ son in 2011, the father will have access on Christmas 2012. If the parties are not on an overnight

schedule that applies to Christmas day in 2012, the father will have access on Christmas day from 10:00 a.m. to 6 p.m.

d) Attributes of guardianship [ 25 ] While it is true that the parents have not been able to cooperate to date on making decisions in the child ’ s best interests, that is, in part, because there has been no attempt by either of them to reach agreement with the other. On this interlocutory application, it is not necessary to make any final determinations relating to guardianship: for example, the child will live with the mother, but the mother should not have the right to make a unilateral decision, for example, to leave Alberta, or even the community in which both parents reside.

Each parent will be responsible for the medical care of the child while the child is in their care. The mother will forthwith provide information to the father concerning the child ’ s family physician. Each parent will immediately inform the other of any medical treatment of the child. The obligation for communication in writing between the parents, dealt with earlier, might provide a basis for any future application by one parent or the other for sole guardianship based on the lack of cooperation by the other parent. 3.

Change of name [ 26 ] The mother has not established that a change of name is in the child ’ s best interests. [ 27 ] Some of the authorities relating to name changes in children are referred to in Lipphardt .

Here, the mother advances three reasons why the child ’ s name should be changed from the father ’ s name to her name: she knows, because of the problems faced by her two older children, of the difficulties arising where children have a different family name from the custodial parent ’ s name; the father ’ s family name has a bad reputation in the community in which she, the son and the father all live; and, she is really attached to her family name, would like to pass it on to her son, and, at one time, the father had agreed to give his son her family name. [ 28 ] As to the difficulties relating to the difference in name amongst individuals in one family unit, as the weight of contemporary case law holds, there is neither contemporary social stigma nor administrative difficulty connected with name variations.

Nor has the mother established that this child is likely to suffer any serious consequences as a result of his surname being different from hers or that of her older children. Moreover, since the issue of custody has not been finally resolved, it is not clear at this stage of the child ’ s life who will be the custodial parent; therefore, it is premature to make a name change now. [ 29 ] As to the reputation of the father ’ s family name, apart from a bare assertion that such a bad reputation exists, no further evidence is provided.

Indeed, given that the mother had lived in the community for approximately a decade prior to commencing her relationship with the father, it cannot be said that the father ’ s family name has an overwhelming negative effect on social relationships. [ 30 ] Finally, as to the importance of her father ’ s family name, the court accepts that, indeed, a name is important. Bearing one ’ s father ’ s name can be important to a child. Just as the mother thinks it would be important for her son to bear her own father ’ s name, her son might think it important to bear his father ’ s name.

When a child is older, the child can choose his own surname. However, while a child is still young, it is obviously in that child ’ s best interest to maintain a healthy relationship with an active, involved, loving father. The quality of that relationship might be impaired if the mother unilaterally removes the father ’ s name from the child. The mother ’ s assertion that she is committed to fostering a healthy relationship between her son and his father is difficult to square with this

application; it is difficult to imagine the conversation that the mother would have with her son when he is older about why he doesn ’ t have his father ’ name and she explains that it ’ s a name with a very bad reputation. 4. Costs [ 31 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 1 st day of August, 2012. Dated at the City of Edmonton, Alberta this 2 nd day of August, 2012. J.B. Veit J.C.Q.B.A. Appearances: Jennifer Leung, Snyder & Associates LLP for Ms. Johnston Jack Boudreau, Laurier Law Office for Mr. Cunningham