ADS v. DLS, 2012 ABQB 508

Court of Queen ’ s Bench of Alberta Citation: ADS v. DLS, 2012 ABQB 508 Date: 20120823 Docket: 4803 152754 Registry: Edmonton Between: ADS Plaintiff - and - DLS 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. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.P. Marceau _______________________________________________________ I.

Introduction................................................................................................................ Page: 2 II. Issues.......................................................................................................................... Page: 3

III. Background................................................................................................................ Page: 3 IV. Law............................................................................................................................. Page: 7 V. Facts and Analysis...................................................................................................... Page: 8 A. The Post-Separation Arrangements and Events............................................... Page: 8 B.

Court Orders................................................................................................... Page: 9 1. The Divorce........................................................................................ Page: 9 2. The Ex Parte Restraining Order........................................................... Page: 9 3. The Travel Order............................................................................... Page: 11 4. The Interim Pre-Divorce Custody and Support Order........................ Page: 11 5. Orders that Flow from the September 3, 2010 Order......................... Page: 12 C.

Post-Separation Control of B......................................................................... Page: 13 1. 2010 Kindergarten Selection............................................................. Page: 14 2. Hockey and Skating.......................................................................... Page: 14 3. Thursday Overnight Visits................................................................ Page: 15 4. 2011 Kindergarten and Grade 1 Selection......................................... Page: 15 5. Spring Break 2011............................................................................ Page: 16 6.

Christmas 2010 and 2011................................................................. Page: 16 7. Soccer and Ukrainian Dance ........................................................... Page: 17 D. Bilateral Custody Assessment Report of Barbara Sheptycki, dated April 5, 2012 Page: 17 1. Highlights of the Assessment............................................................ Page: 18 a. Ms. W................................................................................... Page: 18 b. Mr. S..................................................................................... Page: 18 c.

The Child - B........................................................................ Page: 19 2. Other Persons Interviewed................................................................ Page: 22 a. Teachers Evidence................................................................ Page: 22 b. Psychologists........................................................................ Page: 24 c. Housekeeper......................................................................... Page: 24 d. Mr. S.’s Family...................................................................... Page: 24 e. Ms.

W.’s Friends................................................................... Page: 25 3. Opinion and Recommendations of Assessor..................................... Page: 25 E. Conclusion on Moving to Pittsburgh............................................................. Page: 29 F. Custody of the Child in Edmonton................................................................ Page: 30 G. Access and Other Issues that Relate to B....................................................... Page: 31 H. Spousal Support............................................................................................

Page: 36 I. Temporary Visits Out of Province................................................................. Page: 38

J. Final Direction.............................................................................................. Page: 38 VI. Costs......................................................................................................................... Pa ge: 39 I. Introduction [ 1 ] This decision relates to the divorce of A.D.S. and D.L.S. They were married on February 14, 2003, and separated in March of 2010. They have one child, B., a son, who was born in August of 2006 and now is six years old. [ 2 ] Subsequent to the separation there has been disagreement on a variety of issues, many of which revolve on B.

This proceeding has been in case management since about April 11, 2012. [ 3 ] In this matter the mother, A.D.S., prefers her maiden name W. In order to minimize any confusion, I will refer to the Plaintiff as Ms. W. and the Defendant as Mr. S. [ 4 ] This family group, and particularly B., were the subject of a report by Barbara Sheptycki [the “ Assessor ” ], a registered psychologist and an expert who conducted a bilateral child custody study. As will become apparent through this decision, I have serious concerns in relation to the Assessor ’ s analysis and conclusions. II. Issues [ 5 ] Ms. W. and Mr.

S. raised a number of issues. Some relate to B.: (

i) Ms. W. wishes sole custody of their son and permission to relocate with the child to Pittsburgh, U.S.A. If that application is granted then Ms. W. proposed reasonable access to Mr. S. (ii) If Ms. W. ’ s application to relocate to the US is denied, she still seeks sole custody but would agree to the access

schedule proposed in the Assessor ’ s report. This would be less than 50-50 and would not be on a ‘ one-week on ’ , ‘ one-week off ’ rotation. (iii) Mr. S. seeks joint custody and a 50-50 one-week on, one-week off rotation of parenting time. [ 6 ] The remaining issue is spousal support. Ms. W. seeks continuing spousal support. Mr. S. ’ s position is that only time-limited support should be ordered. [ 7 ] Both parties agree that Mr. S. should pay guideline child support. As his income is $181,872.00, child support should be fixed at $1,590.00 per month, unless some child support becomes payable by Ms. W.

Both parties agree on a divorce. Sufficient evidence was led by Ms. W. to support a judgment for divorce and there will be the usual judgment for divorce between the parties.

III. Background [ 8 ] The parties agreed to admissions of fact which I set out in full, below. The references to tab numbers are to various items in Exhibit 1 of this proceeding. 1. The Plaintiff, A.D.S. (the "Plaintiff"), and the Defendant, D.L.S. (the "Defendant") were married on February 14, 2003 in Edmonton, Alberta (Tab "1"); 2. At the time of the marriage, both parties were single; 3. The Plaintiff was born at Baltimore, Maryland on [...] [...], 1969 and is presently 42 years of age; 4. The Defendant was born at Edmonton, Alberta on [...] [...], 1973 and is presently 39 years of age; 5.

The parties separated on March 18, 2010, but continued to reside in the same residence until September of 2010; 6. The parties met at a wedding in Pittsburgh, Pennsylvania in 2000. They began a long distance relationship, which ultimately resulted in the Plaintiff moving to Edmonton, Alberta to live with the Defendant in September of 2002; 7. There is one child of the marriage, namely: B., born in August of 2006; 8. The Defendant was born and raised in Alberta. His mother resides on a farm near Morinville, his father resides on a farm near Athabasca. Both are retired. He has one sister; [J.J.] who resides in St.

Albert, and one brother, [D.S.], who resides in Edmonton; 9. At the time of the marriage, the Defendant was employed with Future Shop. He worked at Future Shop from April 1993 to September 2003. In December of 2003, the Defendant began working for the Royal Bank of Canada. Since that time, he has been working with the Royal Bank as a Mortgage Specialist. His income has been as follows: Year Line 150 Income 2007 $191,896.00 2008 $257,927.00 2009 $235,303.00 2010 $169,072.00 (Tab "2") 2011 $181,872.00 (Tab "3") 10.

Approximately one year after the Plaintiff's birth, her and her parents moved to State College, Pennsylvania. Her mother's name is [D.J.P.], and her father is [J.A.W.]. The Plaintiffs parents were divorced and subsequent to the same, the Plaintiff resided with her mother, who presently resides in Pittsburgh, Pennsylvania and has resided in Pittsburgh for 40 years. The Plaintiff's mother was

employed as a social worker with the Veteran's Affairs Medical Centre in Pittsburgh and is now retired; 11. The Plaintiff grew up primarily in Pittsburgh, Pennsylvania, and she also attended school in Pittsburgh. After graduation, in June 1987, she went to live in Boston to attend Boston University where she lived for approximately two years. The Plaintiff then transferred to the University of Pittsburgh and graduated with her first degree in December of 1992 from a Liberal Arts program.

After completion at the University of Pittsburgh, she obtained a position at Greenwood Publishing Group in Connecticut, where she began work as a copy editor and she worked for this company for approximately two years. Following this employment, she worked for Duquesne for approximately two years, then she transferred to the Admissions Office at the Duquesne University.

In the fall of 1998, she began a Master's Program in Education at Duquesne University, where she completed two years of course work while she was employed, and then completed one year teaching internship with Quaker Valley School District at Osborne Elementary. When the Plaintiff and Defendant met, the Plaintiff had just finished her course work and was about to begin her internship in August of 2000. She completed her internship in June of 2001. She obtained a teacher's certificate with an effective date of January of 2001 and it was valid for a period of six years, which now has passed; 12.

The parties were engaged in July of 2002 and when the Plaintiff moved to Alberta in 2002, she began living with the Defendant in his condominium located at 110 Street, and 100 Avenue, Edmonton, Alberta. This property was subsequently sold in order to purchase the second condominium located at 116 Street and 100 Avenue, Edmonton, Alberta. In the fall of 2006, the second condominium was sold to purchase the matrimonial home located at 10[...] - 125 Street, Edmonton, Alberta; 13.

Since arriving in Alberta, the Plaintiff has not been employed other than working briefly in 2003 and as a volunteer/substitute teacher at Grandin Prescolaire from February of 2010 to the present. The Plaintiff also volunteered at Brander Gardens Elementary School from January of 2005 to June of 2006.

The Plaintiff has received child and spousal support from the Defendant as follows: Commencing date Pursuant to the Order of Spousal support received Child support received Based on the Defendant ’ s income of: September 1, 2010 through to and including June 1, 2011 Madam Justice Sulyma dated September 3, 2010 $3,000.00 per month $1,565.00 per month $180,000.00 July 1, 2011 through to and including October 1, 2011 Madam Justice Sulyma dated June 28, 2011 $2,000.00 per month $1,310.00 per month $150,000.00 November 1, 2011 to the present Madam Justice Sulyma dated June 28, 2011 $3,000.00 per month $1,565.00 per month $180,000.00 14.

The Plaintiff's income has been as follows: Year Line 150 Income 2007 $1,200.00 2008 $2,800.00

2009 $1,200.00 2010 $12,398.00 (employment income of$398.32) (Tab "4") 2011 $33,962.00 (employment income of$1,962.00) (Tab "5") 15. The Plaintiff applied for permanent residency status on May 14, 2005 and received permanent residency in May of 2006; 16. The Plaintiff began an Action for Divorce on March 25, 2010. There have been several Orders that have been granted since thattime, which are as follows: A. Ex-Parte Order of Mr. Justice MacCallum dated July 9, 2010 (Tab "6"); B. Order of Madam Justice B.A. Brown dated July 29, 2010 (Tab "7"); C. Order of Madam Justice Sulyma dated September 3, 2010 (Tab "8"); D.

Order of Madam Justice Sulyma dated October 29, 2010 (Tab "9"); E. Order of Madam Justice Sulyma dated June 9, 2011 (Tab "10"); F. Order of Madam Justice Sulyma dated June 28, 2011 (Tab "11 "); G. An Application was heard before the Honourable Madam Justice Sulyma on February 27, 2012, and March 2, 2012, to reducethe support paid by the Defendant to the Plaintiff pending a Trial, which were dismissed. An Order was never prepared; H. Order of Madam Justice Sulyma dated April 11 , 2012 (Tab "12"); 17. A Bi-lateral Custody Assessment Report was prepared by Ms. Barbara Sheptycki (Tab "13"); 18.

The Parties reached an Agreement related to all of the outstanding property issues (Tab "14"); 19. Ms. Sarah Van't Weld, B.'s kindergarten teacher at Holy Cross provided her evidence in advance at the Trial due to holidayconsiderations on June 22, 2012. (Tab "15"); 20. The parties have both presented budgets. The Plaintiff has provided two budgets, one if she resides in Edmonton, Alberta, and theother if she resides in Pittsburgh, Pennsylvania (Tab "16"). The Defendant has provided his current budget of expenses (Tab "17"). IV. Law [9] The test for an order to change the residence of a child is well established.

The leading case on the factors that governfamily law mobility applications is the Supreme Court of Canada decision in Gordon v. Goertz, (SCC), [1996] 2 S.C.R.27, 134 D.L.R. (4th) 321. Gordon v. Goertz was recently considered by the Ontario Court of Appeal in Berry v. Berry, 2011 ONCA 705,285 O.A.C. 366, where at para. 10 Juriansz J.A. restated the relevant principles: In Goertz, the Supreme Court emphasized that the superordinate consideration in a mobility case is the best interests of the childdetermined from a child-centered perspective. The court set out, at para. 14, a number of factors to be considered.

Taking into account

that this case involves two custodial parents, those factors can be stated as follows: - the existing custody arrangement and relationship between the child and each of the custodial parents; - the desirability of maximizing contact between the child and both parents; - the views of the child (when applicable); - the parent ’ s reason for moving, only in the exceptional case when it is relevant to that parent ’ s ability to meet the needs of the child; - disruption to the child of a change in custody; and - disruption to the child consequent on removal from family, schools, and the community the child has come to know. [Emphasis in original.] [ 10 ] At its core, the decisive question is what alternative is in the best interest of the child.

In Gordon v. Goertz , at para. 50 , the majority stated: In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new ? That requirement is also dictated by the relevant legislation: Family Law Act , S.A. 2003, c. F-4.5, s. 18. V. Facts and Analysis A.

The Post-Separation Arrangements and Events [ 11 ] During the marriage and post-separation this couple operated in consistent roles. Ms. W. did not work, and was a full-time mother and homemaker. Mr. S. was employed as a mortgage specialist by the Royal Bank of Canada and after work was at home with his wife and child. [ 12 ] Although the parties separated in March of 2010, they lived together with the child under the same roof until September 3, 2010, when Mr. S. was obliged to leave the matrimonial home as a consequence of a court order. [ 13 ] Ms. W. complains that Mr.

S. was staying out late at night between the separation and Mr. S. ’ s departure. That was true, but in light of the fractured relationship of the parties during the period, when they had separated but remained under one roof, I attach very little relevance to the complaint that Mr. S. was not often home during that period.

[ 14 ] To date, the post-September 3, 2010 regime is, with almost no variation, derived from the order put in place by the court order on September 3, 2010. Basically, the order provides that the parties have joint custody with Ms. W. as the primary parent. Mr. S. is allowed access from Thursday night till Friday morning in all weeks and from Friday after kindergarten to Sunday at 6:00 p.m. every second weekend. [ 15 ] This was intended to be a joint custody arrangement, and one would expect that decisions with respect to the child would be made by both parties.

That has not proven to be the case, and I will return to that observation at various points in this decision. For now, it is useful to observe that Ms. W. has operated in a unilateral manner, and made nearly all decisions that relate to B., in respect to health care, schooling, social and recreational activities, and sporting activities. [ 16 ] She has enrolled B. in Ukrainian dance, soccer and selected B. ’ s kindergarten and elementary school. She has also not cooperated with Mr. S. ’ s involvement in B. ’ s care and direction. The one social activity to which Mr.

S. has directed his child, participation in Tim Bits (minor hockey) which ran from October 2010 to March 2011 and October 2011 to March 2012, was met with resistance. This seems to have been done in spite of the opposition of Ms. W. and although the program required attendance every Saturday or Sunday at the hockey rink, Ms. W. refused to take the child to hockey during her Saturdays or Sundays. The result is the child only attended half time. [ 17 ] Mr. S. has attended the Ukrainian dance final recital with members of his family, and those soccer games of which he was aware. Mr.

S. tried to be involved in selection of a kindergarten school that the child would attend. His preference after research was the Glenora school, but after receiving his emails, Ms. W. unilaterally enrolled the child in Grandin Pre-scolaire. Both parents agreed that B. should attend a different school after they were advised that Grandin Pre-scolaire would not have two classes, but rather one large class of about 27 pupils. Mr. S. had arranged that the child could attend Glenora School and asked Ms. W. to at least consider that school in addition to Holy Cross. Ms.

W. then unilaterally enrolled the child in grade one at Holy Cross. Mr. S. has subsequently consented to that arrangement. B. Court Orders [ 18 ] As is evident from the agreed statement of facts, there have been a number of court orders since this divorce was commenced. A review of nature and basis for these orders is necessary, as Ms. W. says the multiplicity of orders and other evidence demonstrates that Mr. S. abused the court system. She alleges he repeatedly brought her to court time and again, with the intent to claim primary custody of their son, or at a minimum to increase his access to their son.

Further, Ms. W. has told the Court that Mr. S. was constantly badgering and bullying her with court applications and emails. [ 19 ] Mr. S., to some extent, agrees. He acknowledges that he has always wanted more access to their son, but complains that the applications to the Court were necessary and appropriate because Ms. W. was not following the court orders. She did not allow him input, as a parent with joint custody, into the educational, medical and recreational decisions that relate to their son. [ 20 ] I will therefore review the orders and make some comment upon them. 1.

The Divorce [ 21 ] In April 2010, while the parties were separated but living with their son in the matrimonial home; Ms. W. issued a statement of claim for divorce. She sought joint custody of the child with primary parenting to her and reasonable access to Mr. S. 2. The Ex Parte Restraining Order [ 22 ] On July 9, 2010, Mr. S. obtained an ex parte order from this Court that prohibited Ms. W. from removing their son from the City of Edmonton. The order contained a police enforcement clause. While the application judge was informed there was counsel of record for Ms.

W., her counsel was not advised of the application.

[ 23 ] Counsel for Mr. S., at trial, conceded that some notice should have been given by then-counsel for Mr. S. to counsel for the Plaintiff. I agree some notice should have been given, but that conclusion is immaterial as the application judge was aware this was an ex parte proceeding, and was satisfied on the evidence before him that “ [t]he delay caused by proceeding by notice of motion might entail serious mischief. ” [ 24 ] What counsel for the Plaintiff now strongly argues is that Mr. S. had no grounds for bringing the application, and in effect this was an aspect of the court-based abuse alleged by Ms.

W. [ 25 ] I disagree. Mr. S. had been sued for divorce. He claims, and I prefer his evidence on this point, that Ms. W., despite her pleadings that did not ask to remove the child to Pittsburgh, had told him that was her intention. I believe at that point there was also reason to question Ms. W. ’ s mental state. [ 26 ] In his affidavit, Mr. S. claimed Ms. W. had been on medication for depression and had stopped taking the medication after the birth of their son. She started forgetting to take the medication and also decided she did not need it. I observe that was basically Ms. W. ’ s evidence at trial. Mr.

S. also deposed Ms. W. had stopped taking the medicine contrary to the advice of her doctor and her psychologist (Ms. O ’ Sullivan, whom she still sees). No evidence was called to rebut these allegations. Mr. S. swore he had been told this by Ms. O ’ Sullivan and her doctor. Ms. O ’ Sullivan and her doctor at that time were not called, so I am left with the evidence of Ms. W. that she did not fill further prescriptions and that Ms. O ’ Sullivan did not tell her not to discontinue the medication. [ 27 ] The allegation of possible mental problems in Mr. S. ’ s affidavit is reasonably based on some of the evidence.

In 2009, Dr. Hurst, a psychologist, referred Ms. W. for assessment for depression at the mental health clinic. Mr. S. testified Ms. W. had put her foot through a door. Further, I observed her sad demeanor she exhibited at trial (except when testifying), and finally there is her apparent lack of any motivation to plan in a real way an entry into the workforce despite her two university degrees, [ 28 ] The other basis for the order was Mr. S. had found a business card for a Pittsburgh family lawyer in Ms. W. ’ s purse.

Despite the Hague Convention and the Criminal Code prohibition against kidnapping, and the fact that without Mr. S. ’ s consent, Ms. W. might have encountered difficulty at the border bringing the child into U.S., it was not unreasonable for B. ’ s father to be very concerned that he might be fighting for custody and return of their son before the U.S. courts. I have no doubt Ms.

W. ’ s Alberta counsel would have advised her not to jeopardize her case by taking the child without consent, but parents have been known to act against their lawyer ’ s advice in cases involving child custody. [ 29 ] On the whole, I find some notice should have been given prior to the ex parte hearing, but I believe Mr. S. when he says that decision, notice or not, was not made by him. I do not fault him for obtaining the order, although that step certainly soured the prospect of any negotiated custody settlement. 3. The Travel Order [ 30 ] The next order, July 29, 2010, was an application by Ms.

W. to set aside the ex parte order and to take their son to Pittsburgh for a holiday. The Court did not set aside the ex parte order, but allowed Ms. W. to take their son to Pittsburgh on certain conditions. The Order noted a warning, no doubt given by the judge in the

preamble, which read: AND UPON the Court noting that if the wife does not bring the child back, she may lose her right to custody in favour of the father. [ 31 ] Since this was an application made by Ms. W., this proceeding and decision cannot be part of Mr. S. ’ s ‘ bullying ’ Ms. W. with court applications. 4. The Interim Pre-Divorce Custody and Support Order

[ 32 ] The next order was made on September 3, 2010, after a hearing before Justice Sulyma. She also made all further orders in this matter, and was appointed case manager before the April 11, 2012 Order. The September 3 rd Order was quite detailed and I set out paragraphs 1 through 12 of the Order. IT IS HEREBY ORDERED THAT: 1. The Ex Parte Order of the Honourable Justice MacCallum and the Honourable Justice Browne is set aside and shall be substituted with an Order that the parties will not take B. out of the Province of Alberta without the consent of the other. 2.

A Bi-lateral Custody Assessment shall be prepared and shall address whether it is in the best interests of B. to continue to reside in the City of Edmonton with the Defendant and the Plaintiff or to move to the United States of America with the Plaintiff. 3. The parties shall have joint custody of B. with primary residence with the Plaintiff until further Order of the Court. 4. The Defendant shall have interim access every second weekend from Friday to Sunday and one overnight access on a weekly basis, until further Order of the Court. 5. The parties are at liberty to arrange for a more generous access

schedule by agreement. 6. The Plaintiff shall have exclusive possession of the matrimonial home until November 1, 2010. On November 1, 2010, the Plaintiff shall move out of the matrimonial home and the Defendant shall have exclusive possession of the matrimonial home. 7. The Defendant may list the matrimonial home for sale immediately and shall continue to meet the obligations regarding the mortgage and the expenses during that two month period and thereafter until the house is sold, and a court review may take place after May 2011. 8.

The Defendant shall pay spousal support in the sum of $3,000.00 per month commencing on September 1, and continuing until further Order of the Court. 9. The Defendant ’ s guideline income is imputed to be $180,000.00 and the Defendant shall pay child support of $1,565.00 per month commencing on September 1, 2010 and continuing until further Order of the Court. 10. The Defendant shall receive a credit of $2,000.00 against the aforesaid support as this amount was paid on September 1, 2010. 11. The Plaintiff shall provide her disclosure forthwith. 12.

The Defendant shall pay to the Plaintiff costs in the sum of $750.00 plus disbursements. [ 33 ] Mr. S. had sought sole custody but the Order provided for joint custody with primary parenting by Ms. W. Access was granted to Mr. S. for every second weekend, from Friday to Sunday, and one overnight access on a weekly basis. [ 34 ] Paragraph (5) provided the parties were at liberty to arrange for a more generous access

schedule by agreement. It is obvious

that Ms. W. largely “ won ” the application and she was awarded costs. Following this order, Mr. S. left the home until November 1, 2010, when he retook possession with the view to sale as set out in the Order. [ 35 ] As there is no order specifically setting out the overnight access on Mr. S. ’ s non-weekend weeks, the parties appear to have agreed to Thursdays as the overnight. 5. Orders that Flow from the September 3, 2010 Order [ 36 ] Mr. S. subsequently brought a new application for more access. The interim Order of Justice Sulyma dated October 29, 2010, probably should have recited that Mr.

S. ’ s request for more access was dismissed, but it did not. The October 29 application also addressed telephone access by Mr. S. every night that he was not with their son. That was fixed at between 7:00 p.m. and 7:30 p.m. on Tuesdays and Wednesdays, and if telephone contact was not made then there was imposed on Ms. W. an onus to have their son contact Mr. S. The telephone logs kept by Mr. S. for the period September 3, 2010 to October 29, 2010 show that he was seeking to say goodnight to their son most nights. His log indicates that on many occasions the phone had not been answered.

There were no return calls when Mr. S. left a message. The Order specified two days per week. [ 37 ] The parties also had a dispute about what was meant in the September 3, 2010 Order by “ overnight access. ” Mr. S. took the position that it meant 24 hours so that he would not have to return their son for the Thursday night access till Friday evening. Mr. S., in my view, attempted to put an overly broad

interpretation on overnight access. Justice Sulyma took the same perspective, and so the Order of October 29, 2010 specifies that overnight access meant B. would be picked up after work and dropped off at the beginning of the next work day. The October 29, 2010 order also required the parties to agree on an assessor for the bi-lateral study. [ 38 ] Much of the communication problems that occurred between the parties stem from the fact that although the parties were ordered by the Court to select, pay for, and co-operate with the Assessor, no agreement was reached on an assessor after October 29, 2010.

The subsequent Consent Order of June 9, 2011 appointed Barbara Sheptycki, Registered Psychologist, as the Assessor. [ 39 ] On June 28, 2011, a further order was made by Justice Sulyma that, for four months, reduced child and spousal support. This adjustment was made to respond to a decrease in Mr. S. ’ s income. This order also set a summer parenting schedule, three alternate periods of sole access to each party. The regular access would resume. The summer parenting dispute was over whether Mr. S. would have periods of two weeks, while Ms. W. wanted the periods to be less than two weeks at a time.

The final result was about 12 days per period. This was closer to Ms. W. ’ s position than Mr. S. ’ s, but the parties were not very far apart when they went to court. [ 40 ] The last order, on April 11, 2012 set this matter for a one-week trial commencing Monday, July 29, 2012. It appears that this year the parties have worked out summer access without court assistance. C. Post-Separation Control of B. [ 41 ] As I have previously indicated, the post-separation court-ordered joint custody of B. has not operated in that manner.

The pattern in both parties ’ conduct warrants detailed examination, as it provides insight into how each parent has conducted themself. I also have the advantage of documentary evidence of their communications. [ 42 ] There was significant disagreement. Not all of this can be laid at the feet of either parent. One cause for these issues was that the September 3 and October 29, 2010 Orders were interim orders and contemplated the preparation, in short order, of a bi-lateral custody assessment. That assessment was not conducted on the expected schedule.

That meant that between October 29, 2010 and the present, the parties did not have the advantage of instruction to address issues such as Christmas and Spring Break access, and particular dates such as Mother ’ s Day, Father ’ s Day, and the mother ’ s and father ’ s birthday. As previously mentioned, summer access in 2011 was the subject of a specific court order. [ 43 ] In the fall of 2010, Ms. W., without consulting Mr. S., enrolled their son in Grandin Pre-scolaire, a french immersion playschool. She also took the child to a pediatrician from time to time and did not give Mr.

S. any information about those medical visits.

[ 44 ] Defence counsel led Mr. S. through a series of emails exchanges that occurred between October 29, 2010 and June 3, 2011. Defence counsel argues these show that when it came to decision-making that affected B, with few exceptions, Ms. W. was in ‘ the driver ’ s seat ’ . This evidence is particularly relevant to my later review of the expert Report by the Assessor, as it directly counters her theory that Mr. S. was “ a controller ” . [ 45 ] What follows are some of the significant incidents and exchanges. 1. 2010 Kindergarten Selection [ 46 ] In the fall of 2010, Ms. W., without consulting Mr.

S., enrolled their son in Grandin Pre-scolaire, a french immersion playschool. 2. Hockey and Skating [ 47 ] In September of 2010, Mr. S. advised Ms. W. he had registered their son for skating on Saturday and Tim Bits hockey on Sundays. Ms. W. ’ s response was that their son was too young for hockey. As a consequence, over the next two hockey seasons their son was taken by Mr. S. to hockey or skating only on Mr. S. ’ s two weekends per month. Despite offers to provide equipment in both houses, Ms. W. did not take their son to hockey once. [ 48 ] In 2012, B. ’ s year-end hockey party windup was Saturday, March 17.

That was one of Ms. W. ’ s weekends. On March 12, 2012, Mr. S. sent an email to Ms. W. which read: ...year-end hockey jamboree windup is Saturday, March 17/12. His team is scheduled to play his final tournament at 11:45 a.m. and also 12:30 p.m. March 17/12 and then at 2:00 p.m., he has a trophy and medal presentation and also a pizza party celebration with his team mates to end his hockey program this year. Let me know if you are okay with me picking up B. at your place at 10:30 a.m. on Saturday, March 17/12 and returning him at 4:30 p.m. later that day so that he can participate in this event.

B. has made many friends on his hockey team. [Mr. S.]. [ 49 ] A response by Ms. W. occurred on March 16, 2012 at 7:14 p.m.: Thank you for your offer, however, B. has prior commitments on Saturday, March 17 th . Unfortunately he will not be able to attend the hockey events. [Ms. W.]. The prior commitment in question was to attend a room in the Woodcroft Library which was stocked with Lego so B. could play with Lego. This event was held about once a month and seems to me to be low priority. 3. Thursday Overnight Visits [ 50 ] In November 2010, a disagreement arose on the Thursday overnight visits. Mr.

S. wanted to bring their son to Ms. W. at 11:00 a.m. on Friday. Ms. W. wanted 10:00 a.m. In this instance Ms. W. compromised and 11:00 a.m. was agreed upon as the time for the exchange. [ 51 ] Mr. S., in the fall of 2011, proposed that instead of taking their son to Ms. W. after Thursday overnight access, he would

bring their son directly to kindergarten on Friday at about 12 noon. Ms. W. allowed this to happen without further court applications. 4. 2011 Kindergarten and Grade 1 Selection [ 52 ] In 2011 the kindergarten issue resumed. Mr. S. had consulted results on education published by the Fraser Institute which showed Grandin Pre-scolaire as having poor academic results, while the Glenora school had very high results. He proposed B. attend the Glenora school and, if not, suggested two other alternatives to Grandin school in the Glenora area where both parties live. [ 53 ] The email to Ms.

W. that made this proposal was sent February 7, 2011 and starts in a very non-confrontational manner with the words “ [Ms. W.], please let me know your thoughts for kindergarten registration for B. ” . It then proceeds to outline four options. On March 14, 2011 (five weeks later), Mr. S. asked for a response to his February 7 th email. On March 21, 2011, Ms. W. emailed Mr. S.: “ B. is registered for kindergarten school at Grandin School. He is enrolled in the french immersion program. ” [ 54 ] On April 19, 2011, Mr. S. advised Ms. W. he was able to secure a place at the Glenora school for their son.

On April 20, 2011, Ms. W. replied: “ As stated in my earlier email, B. is registered for kindergarten at Grandin School. ” Mr. S. complained about the decision on April 27, 2011, asking for a response. There was no reply. [ 55 ] It was about this time that Mr. S. changed lawyers. His new lawyer, his present counsel, advised him the kindergarten issue was not a hill to die on and the matter was dropped. It is obvious that despite the order specifying “ joint custody ” , Ms.

W. had decided that the choice and kind of schooling was to be solely her decision. [ 56 ] Subsequently and shortly after kindergarten commenced in September 2011, a class size issue emerged at the Grandin kindergarten which was brought to the attention of both parents. A single class of 27 students had been proposed, an arrangement both Ms. W. and Mr. S. thought was unsatisfactory. [ 57 ] Mr. S. again proposed Glenora school. Ms. W. said she was looking at Holy Cross, which had a french immersion kindergarten. Mr. S. asked Ms. W. to at least visit Glenora school. She did not and simply advised Mr.

S. she had enrolled their son at Holy Cross. Over the school year, Mr. S. visited Holy Cross and became very impressed with that institution. Both parties then seemed very content to have their son attend Grade one at Holy Cross if he is not going to Pittsburgh. [ 58 ] On french immersion, I observe that Ms. W. says she selected Holy Cross and Grandin for that program, while Glenora does not have a french immersion program, but instead offers some french programming. I note that no french instruction is offered in Pittsburgh elementary schools. 5. Spring Break 2011 [ 59 ] Mr.

S. asked to extend the 2011 Spring Break so that he would have two more days of Spring Break than his every second weekend allowed. No extension occurred. Ms. W. ’ s response was to strictly follow the Court Order. There was no attempt on Ms. W. ’ s part to allow any deviation from the Order to account for the fact that their son had no school from Monday to Friday of Spring Break. 6. Christmas 2010 and 2011 [ 60 ] In 2010, Christmas was on a Saturday; in 2011, it was on a Sunday. From the emails I surmise that under the September 3, 2010 Order both weekends fell into Ms. W. ’ s alternative weekends. [ 61 ] Ms.

W. allowed Mr. S. to have their son on Christmas Eve 2010 to 2:00 p.m. and then from 10:00 a.m. on Boxing Day till 11:00 a.m. on December 27 th . Of course, this meant that Mr. S. did not see his son on Christmas Day at all. Mr. S. agreed on the

condition that the reverse would apply for 2011. Ms. W. replied that it would only apply for 2010 and 2011 would be dealt with later. [ 62 ] When 2011 came around, Mr. S. proposed that he access from 2:00 p.m. Christmas Eve till 10:00 a.m. on Boxing Day, just as Ms. W. had had the year before. Mr. S. ’ s counsel proposed this

schedule by letter of December 14, 2011 to Ms. W. ’ s counsel. The response from Ms. W. ’ s counsel came December 21, 2011. At that point, any access to the courts before Christmas day was almost impossible. While counsel for the Plaintiff complained that Ms. W. was arbitrarily dictating Mr. S. ’ s Christmas access, the response was simply that Mr. S. would have access from December 24 th at 2:00 p.m. till 2:00 p.m. on December 25 th . Then Ms. W. would have access from 2:00 p.m. December 25 th till 6:00 p.m. on December 26 th . It is obvious to me that the late response ensured Ms. W. had her way. 7.

Soccer and Ukrainian Dance [ 63 ] Ms. W. enrolled B. in soccer and a Ukrainian dance program. She did not consult Mr. S. in either case. In June of 2012, the windup Ukrainian Dance occurred on Mr. S. ’ s weekend. Mr. S. was glad to oblige on his weekend by allowing their son to go and he also brought members of his family to enjoy the dance recital. [ 64 ] In the spring of 2011, Ms. W. had enrolled their son in soccer. Mr. S. became aware and attended his soccer games. In 2012, Mr. S. did not find out about soccer until the questioning on June 21, 2012. Ms. W. said their son was enrolled in soccer.

She advised the date of the next game which Mr. S. attended but only gave him two hours notice of the last game. With that notice, Mr. S. was not able to attend. D. Bilateral Custody Assessment Report of Barbara Sheptycki, dated April 5, 2012 [ 65 ] This Court has received an expert report in relation to custody. This report was ordered by Sulyma J. on September 3, 2010. Nevertheless, because the parties could not agree on an assessor until June 9, 2011, the assessment did not start until mid-July, 2011. [ 66 ] The Assessor, Ms. Sheptycki is a registered psychologist.

Her education includes several degrees and course work at the University of Alberta: a 1969 Bachelor of Arts majoring in psychology and sociology; a 1976 Master of Science in family studies; and Department of Psychology 1981 and 1988 post graduate courses. She has been a practising psychologist and an expert witness in matters pertaining to parenting capacity, psychological and parenting assessments, and child custody and access issues. She has testified as an expert before the Provincial Court of Alberta, Family Division and the Court of Queen ’ s Bench of Alberta no less than 20 times.

She has prepared about 300 custody assessments. Counsel agreed she is an expert qualified to do bilateral custody assessments concerning the parenting of children and to testify as to the best interests of the children. [ 67 ] The parties expected that the assessment would be completed by October 2011, which explains in part why no real change was made to the September 3 and October 29, 2010 orders except to specify access for the summer of 2011. The Report was delayed in part by its author, Ms. Sheptycki, having some surgery.

There seems to be no other reason for the delay. [ 68 ] The question to be answered by the assessor was: Whether it is in the best interests of B. to continue to reside in the City of Edmonton with the Defendant and Plaintiff or to move to the United States of America with the Plaintiff. [ 69 ] In her Report, the Assessor does not make a specific recommendation about the move to Pittsburgh; rather, she has left that decision for the Court to make in light of her review of the situation.

She does, however, make specific recommendations with respect to the two alternatives - a move to Pittsburgh or remaining in Edmonton. In either case, her recommendation is very specific that Ms. W. is to be granted sole custody with reasonable, very specifically-defined access for Mr. S.

[ 70 ] As I have previously observed, I have had difficulty with aspects of the Assessor ’ s Report. I will first turn to her evaluation of the litigants. 1. Highlights of the Assessment a. Ms. W. [ 71 ] With respect to Ms. W., Ms. Sheptycki ’ s Clinical Impression and Behavioural Observations (pp. 5-6) were: [Ms. W.] presented as a pensive, serious individual. She was very cooperative with the assessment process, attending all interviews that were scheduled and providing information openly. She presented consistently with a calm demeanour.

She sometimes spoke candidly about her difficulty in making decisions (eg. when completing psychological questionnaires and tests). [ 72 ] After testing, Ms. Sheptycki concluded at (p. 1): Results suggest that [Ms. W.] is very interested and concerned about people. However, she may not understand people very well. She may tend to view people from a fantasy-orientation rather than seeing them accurately. She may also tend to isolate herself, which creates the potential for loneliness and a negative life-outlook. [Ms. W.] tends to judge herself sharply, regarding herself as inferior to others.

This may oscillate with a more positive self-view at times, but it is likely difficult for [Ms. W.] to talk positively about herself or to feel deserving of praise. b. Mr. S . [ 73 ] The Clinical Impressions and Behavioural Observations for Mr. S. are at p. 12: [Mr. S.] presented as a cooperative and polite individual. He attended all interviews as required and was quickly responsive to requests for information. He was excessively verbose in interviews, and was noted to have a boastful manner when discussing his personal circumstances. He appeared to be strongly invested in social status.

A tendency to take charge of situations was also evident. [ 74 ] On the Child Abuse Parental Inventory, Ms. Sheptycki concluded Mr. S. ’ s profile was invalid, “ faking good ” . At p. 16 of the Report concerning the AAPI-2, the Report states: Parents who receive similar scores on this scale are described as having expectations that exceed the developmental capabilities of their children. Parents with this score also lack basic understanding of normal child development.

Such parents tend to be demanding and controlling of their children (rather than being supportive of them), and may have a self-concept that is easily threatened. On this questionnaire, [Mr. S.] also received scores reflecting a medium risk for low empathy level, belief in corporal punishment, and restriction of children's power/independence. A score in the low risk range was achieved in the subscale related to appropriate family roles. c. The Child - B. [ 75 ] The initial assessment of the child in July of 2011 was problematic since it is obvious the child did not really want to

communicate with the Assessor. The observation of Ms. W. and B. at Ms. W. ’ s home led to the conclusion that: [Ms. W.] was responsive to B.'s needs and questions, and there was an obvious comfort level between mother and child. [ 76 ] The visit to Mr. S. ’ s home did not go very well. Again, B. did not want to communicate with the Assessor and according to Mr. S. “ was in a mood. ” I quote two paragraphs on p. 20 of the Report: At one point during the visit, when B. was acting out, [Mr. S.] raised his voice and spoke very firmly to B.

B. was noted to startle, sit back and state, quickly and anxiously, "Okay, okay Dad". He then quieted down and was compliant but began to act up again in a defiant and aggressive manner a few minutes later. [Mr. S.] told him that if he continued with this type of behaviour, he could not have a certain kind of drink for lunch. There was no follow-through, as the behaviour persisted and the lunch (snack for school) was packed with the drink in question. At one point, B. threw himself on the couch, crying. He wanted to watch television, and he wanted me to leave.

He stated (referring to the writer) "All she sees is me crying". [Mr. S.] commented that B. was "in a mood" and asked B. why he was acting this way. B. was silent. During this process, B. would frequently look at me, as if to gauge my response. This occurred as well while he was eating his lunch (picking at his food with his fingers). At one point, B. went to the bathroom, later calling out for his father to help him wipe his bum. [Mr. S.] responded with surprise, telling B. to take care of things on his own.

Later, during lunch, B. began talking about "tooters", saying (when his father told him to stop) "Dad, you like tooters". [Mr. S.] told B. that he would have to explain what that meant, to which B. responded "poop". Shortly afterward, B. began making punching motions toward the writer, reciting "tooters, tooters, tooters". [ 77 ] Ms. Sheptycki had a conversation with Ms. W. which resulted in a request that Ms. W. bring the child back to see the Assessor. I quote from the Report at p. 21: There were several reasons for this interview - one being to correct a possible misunderstanding that B. may have had.

According to [Ms. W.], B. had told her that he could not talk to me or trust me because he assumed that I was a long-time friend of his father's (having allegedly been told this by [Mr. S.]). B. was encouraged to play with some toys, books and games that he had brought along with him, and he engaged in some discussion while playing. He spoke fairly easily about his school, the activities he likes and his "Pittsburgh Baba" who was coming to visit him shortly. When asked about important people in his life, B. identified his mother as being the most important person. He then said that his father is not nice to him.

When asked to elaborate, B. replied "He hits me". When asked for more information, he stated "I forget ... he punches me". B. was not able or willing to elaborate further or to provide any context around these statements. However, he then, more spontaneously, described an incident when his father pulled him away from his mother. He and his mom were holding hands and crossing the street at the time. He could not remember when this event occurred, but stated that it happened "a while ago". (From B.'s description, this appears to be similar to an account given by [Ms.

W.] about an incident occurring on Thursday, September 22, 2011, described elsewhere in this report.) [ 78 ] As I have previously mentioned, I have strong concerns as to the validity of the Assessor ’ s Report. The Assessor ’ s observation of, and more properly, interaction with B., is problematic. In cross examination by Mr. S. ’ s counsel, Ms. Sheptycki did not know what to make of the reason for B. ’ s distrust of herself. If Mr. S. told the child the Assessor was his old friend, and the child did not want to take sides or be taken away from his mother, then B. would not cooperate with the Assessor.

B. ’ s lack of cooperation and wariness of the Assessor is apparent from the report passages I have cited, and is a phenomenon present at all three meetings. [ 79 ] On the other hand, if Ms. W. had influenced the child (keeping in mind the child had just returned from being with his mother when the interview with the father and son occurred), then parent alienation could be a factor. [ 80 ] B. ’ s statement that Mr. S. is “ not nice ” and “ he hits me ” is incongruous. There was no evidence from the many witnesses who testified, including Ms. W., that would even suggest Mr.

S. ever hit the child or was mean to the child. In fact, the opposite was the case. If indeed there was any physical abuse of B. by Mr. S. then I anticipate there would be some evidence. Similarly, the incident where Mr. S. was alleged to have taken the child from his mother forcefully has been quite differently explained by Mr. S. as the child simply going to him and then an argument ensuing about when the child would be returned the next day. [ 81 ] In conclusion, the Assessor was unable to conclude anything from the child ’ s statements in December and his usual lack of cooperation with her.

She acknowledged Ms. W. could have suggested these statements. I note that the Assessor ’ s observations indicate

quite clearly that B. was aware ‘ something was up ’ . B. monitored the Assessor. In fact, one could even argue B. attempted to provoke a response from the Assessor with peculiar behaviour and statements, such as the “ tooters ” episode. [ 82 ] That leads to this peculiar conclusion by the Assessor at p. 29: B. is secure in his relationship with his mother and relies on her for most things. He is anxious about the possibility of being separated from her, and fearful that his father will take him away . The reasons for this are not entirely clear. In interviews, B. was guarded.

It is of concern to the writer that B. makes comments about his father not being nice to him and about his father physically hurting him. It is of even more concern that the reasons for and the veracity of B ’ s comments cannot be determined with any degree of certainty. [Emphasis added.] [ 83 ] I observe that if B. ’ s conduct and obvious wariness has no clear meaning (and that would be my conclusion, if I had been the observer of the described activities) then I would not leap to the conclusion that the apprehension was that B. feared separation from his mother .

His conduct can equally be attributed to apprehension that he would be separated from his father, or to being disturbed by an instruction received from either parent. [ 84 ] I also note that the Report indicates that B. ’ s school teacher, Ms. Van ’ t Veld had stressed to the Assessor that B. had a habit of making things up. For example: ... He has told classmates that he has “ tons of money ” and that he is going on a trip around the world by himself, for example. These comments have been heard by staff members as well. When confronted, B. became very embarrassed. ...

I think that observation casts yet further doubt on placing much, if any, weight on B. ’ s conduct during the Assessor ’ s observations. [ 85 ] Since the Assessor was unable to verify or explain the child ’ s statements and given all the other evidence, I conclude there is no evidence of actual abuse of the child by either parent. [ 86 ] Further, the Assessor ’ s response to Mr. S. ’ s conduct is peculiar.

She criticizes his parenting skills and observes: His expectations for B. are not developmentally appropriate at times, and his approach serves to create anxiety for B. [Emphasis added.] [ 87 ] If that perceived anxiety flows from her observations of the two together, then frankly I disagree. I see no reason why it was inappropriate that Mr. S. raised his voice with his son to tell him to discontinue inappropriate behaviour. This is what observers called a somewhat hyperactive five year old.

As for not assisting him with wiping his bum, the child had been toilet trained two years before, when he was three years old. [ 88 ] If the Assessor ’ s conclusion flows from the “ tooters ” display, B. ’ s crying when not being allowed to watch television, or his wariness directed towards the Assessor while she was observing Mr. S. and B. together, then I can only observe that the Assessor herself recognized that she, as an observer, had affected B. ’ s behaviour on that occasion. This data was, to use scientific language, acquired without proper controls.

I am therefore disturbed that the Assessor seems to have considered those observations in any way relevant. [ 89 ] I therefore put essentially no weight on the Assessor ’ s first-hand observations of B. ’ s activities, and their implications on an appropriate parenting role for either Ms. W. or Mr. S. Either B. was sufficiently sophisticated to recognize, on his own, that something was up, or some other person had influenced B. ’ s actions on these occasions.

2. Other Persons Interviewed [ 90 ] I turn now to information from others about the child. The Assessor at p. 23 of the Report provided a general

summary of the observations and opinions of other persons she interviewed: General Comments: Those who have had opportunities to observe B. with his parents describe him as having a very close relationship with his mother. [Mr. S. ’ s] references, which were limited mostly to his own family members, also described B. as being close to his father. [Mr. S. ’ s] family members also recounted times when B. has not wanted to go home (to his mother's house) after spending time with his dad. B. is reported to enjoy playing with his paternal cousins and his paternal uncle, who see him on a regular basis. a.

Teachers Evidence [ 91 ] The Assessor interviewed several of B. ’ s teachers. In her Report, she concludes that B. exhibited behavioural issues that were associated with his contact with Mr. S. Since these observations are by outside third parties, who would presumably be neutral observers, they warrant particular attention. [ 92 ] Julie Luciow, his preschool teacher at Grandin (2010-2011) commented on B. ’ s behaviour while at school. She reported that there were some emotional upsets, attention seeking, and fighting, which coincided with the Monday after the child was with his father.

I observe that given the parenting

schedule that B. would have been with his mother after 6:00 p.m. on Sunday, I see this ‘ post-visit ’ Monday observation as therefore meaningless. If B. did act in that manner then his altered emotional state could just as much be a consequence of his being unhappy to return to his mother as a disturbance that flowed from his experiences with his father and that had carried on, overnight, to Monday. Ms. Luciow was not called as a witness. [ 93 ] Sarah Van ’ t Veld, his kindergarten teacher at Holy Cross Academy, also describes some behavioural problems in 2011, which had abated somewhat by January of 2012.

In her opinion, those did not show a definite pattern. [ 94 ] That was not what was reported by the Assessor. At p. 24 the Report indicates: ... Earlier, however, the behaviours were exhibited usually on Fridays (coinciding with overnight visits at his father ’ s residence on Thursday nights). ... Ms. Van ’ t Veld was examined by counsel for the Defendant and cross examined by counsel for the Plaintiff on June 22, 2012 before Justice Sulyma. It was agreed that the transcript of that examination be in evidence. At that point, the witness described a transition period for a month and a half.

She stated that B. ’ s initial behaviour was a problem. There were “ empathy talks ” and by November things had calmed down and definitely by December. [ 95 ] Ms. Van ’ t Veld generally described both parents in a favourable light. Elaborating on that Ms. Van ’ t Veld testified (p. 5, l. 35- 39): Yup. They ’ re very – both of them are involved. They are very helpful. [Mr. S.] has come on field trips with us; he ’ s come to class and he has read. [Ms. W. ’ s] come on lots of field trips as well and is available. Both of them are available if ever I need help with the class.

They are both very accommodating and very interested in having the best experience, the best kindergarten exposure for B. [ 96 ] Ms. Van ’ t Veld also had commented that when both parents are in the class with B., “ they are both very professional and very appropriate in class. ” She also noted that B. was “ quite comfortable with both Mom and Dad. ” Referring to both parents, she said “ He ’ s

excited that they are there like any kindergarten child. ” The witness concluded that at this point there were no academic concerns whatsoever. [ 97 ] Contrary to what Ms. Sheptycki put in her Report, Ms. Van ’ t Veld did not attribute the Friday problems to B. having spent the previous night with his father. Instead, she said with younger students Mondays and Fridays are often difficult days because they are transition days. Finally, she agreed that it is very important for B. to have consistency and routine and activity in his life.

However, she continued to observe that is also the case for about half the class. b. Psychologists [ 98 ] Ms. W. has been seeing several psychologists during the relevant period. They were interviewed by the Assessor. Kathleen O ’ Sullivan is a psychologist in Edmonton and has been seeing Ms. W. since 2004. She says that initially Ms. W. was referred by her physician regarding concerns about depression. She says that Ms. W. was situationally depressed when she and Mr.

S. were together but she is not depressed presently, although she sometime feels “ overwhelmed, caged in by her circumstances. ” [ 99 ] Nancy Hurst is a psychologist in Edmonton who appears to have counselled the couple in relation to their marriage. Dr. Hurst saw Mr. S. initially and then both parties from October 9, 2009 till May of 2010. At p. 25, the Report offers this

summary: ... Dr. Hurst was concerned about [Ms. W.] being depressed, and referred her to the walk-in clinic. She was disappointed in the outcome, as no treatment resulted from that referral. ... Dr. Hurst indicated that parenting matters were only briefly touched upon and were not central to the discussions ... Dr. Hurst indicated that, in her opinion, both [Mr. S.] and [Ms. W.] were decent people, but had some rigid thinking patterns and were simply incompatible. c. Housekeeper [ 100 ] Jarka Vobora was the family ’ s housekeeper for a time when B. was a baby and beforehand.

The Assessor reports at p. 25: However, [Ms. W.] was not functioning well physically, despite having a housekeeper and babysitter at her disposal. According to Ms. Vobora, [Ms. W.] was always exhausted, would not get up until 10:00 a.m. or noon, and would return to bed from 2:00 pm. until 4:00 pm. when the babysitter was there. She did not cook or clean, and wanted days off to pursue her own interests. Dinners were often at the Urban Diner, or [Mr. S.] would barbeque. Ms. Vobora has very strong opinions about women's roles and responsibilities, and could not understand [Ms. W. ’ s] situation.

The Assessor appears to dismiss the housekeeper ’ s observations due to bias. To me, Ms. Vobora ’ s comments indicate potential depression. d. Mr. S. ’ s Family [ 101 ] P.S. (Mr. S. ’ s mother) and D.S. (Mr. S. ’ s elder brother) were interviewed. Given the two hour interview with D.S., very little was said about their comments except that they “ testified to [Mr. S. ’ s] involvement and dedication to B. and to close family bonds that exist between B. and [Mr. S. ’ s] extended family. ” The Assessor indicates these two persons considered Ms. W. a “ loving mother ” , but were concerned at how she had minimized Mr.

S. ’ s role in B. ’ s life. [ 102 ] These persons and other relatives testified at trial. Having personally heard the evidence of P.S. and Ms. W. ’ s mother, they both appear to me to be very sweet, doting grandmothers, who display appropriate support and love for their grandson.

[ 103 ] I comment that having heard D.S. ’ s evidence, it was very apparent that he involves himself as an uncle and one of B. ’ s god parents on practically every instance when Mr. S. has his weekend, as well as on the many family get-togethers. [ 104 ] I heard no evidence of pre-separation hostility between the S. family and Ms. W. and her mother. Instead, the closeness of the family, including Mr. S. ’ s sister J., her husband and their two children, one of whom is just about the same age as B., appears to me to be consistent. They eagerly accepted Ms.

W. and her mother at all the family ’ s events until the breakup of the marriage. [ 105 ] I was surprised not more emphasis was placed by the Assessor on the disruption to B. ’ s close relationships to the S. family should he be allowed to relocate to Pittsburgh with his mother. e. Ms. W. ’ s Friends [ 106 ] Sheri Reklow, Gary Kasianiuk and Cheryl Kasianiuk spoke to the Assessor. They said Ms. W. was a parent who puts most mothers to shame. I note Cheryl Kasianiuk was called as a witness and although Ms. Sheptycki says none of them thought Ms.

W. was depressed at the trial, Cheryl testified that she noticed towards the period of separation, Ms. W. seemed to no longer care about her appearance, her hair and clothing. Sheri Reklow testified that Mr. S. was absent from the home in 2010 and would not check in with Ms. W. She had nothing good to say about Mr. S. to either the Assessor or on the stand. However, she had very little basis for her negative comments because she rarely saw Mr. S. with B. It is not surprising that in 2010, when the parties were separating or separated but living under the same roof, Mr. S. would avoid confrontation with Ms. W. 3.

Opinion and Recommendations of Assessor [ 107 ] Commencing at Page 28 of the Report, Ms. Sheptycki gives her opinion and recommendations. Key points in that opinion are: 1. Ms. W. has been the primary parent throughout the marriage and she has good parenting skills. After stating that Mr. S. had a limited role with their son before and after the separation, the Assessor concedes that Mr. S. desperately wants to keep his son in his life and has made recent and consistent efforts to involve himself with his son on a continual basis. 2. Mr. S. is not entirely well-equipped in terms of parenting skills.

He has expectations for B. that are not appropriate at times. 3. Mr. S. is demanding, aggressive, and subtly controlling. 4. Ms. W. is reactive, avoidant, oppositional and defensive. 5. Ms. W. ’ s intention to move to Pittsburgh centres around her own needs. She has limited family support in Pittsburgh, really only her mother. 6. B. has a good connection with his maternal grandmother in Pittsburgh, but he also has strong relationships with his many paternal relatives here in Alberta.

He is doing well in school and enjoys the school he currently attends. [ 108 ] I have particular difficulty with the second conclusion and observe its basis. The Assessor faulted Mr. S. for being proud of B. because B. could count to 67, and said one expectation that Mr. S. had was that B. might take over his father ’ s business someday. I have difficulty with the concept that these are “ inappropriate expectations. ” I wonder, then, what would be an ‘ appropriate expectation ’ ?

If every parent who anticipates their child entering into a successful career has “ inappropriate expectations ” then there will be quite the demand for “ ... parent education training and individual therapeutic intervention ... ” (see below).

[ 109 ] Finally, at pp. 29-30, Ms. Sheptycki writes: The decision as to whether to allow [Ms. W.] to move to Pittsburgh with B. needs to be considered with several factors in mind, including the relative gains and losses that would result for B. A move would impact the father-son relationship in a significant way. Reduced time is the most obvious outcome, and this lost time would likely be considerable in view of the geographical distance and related costs to maintain parental access .

B. would also have limited access to his extended family members on his father's side, including his paternal aunt and three cousins, paternal uncle, and paternal grandmother. These are important relationships for him at this time . Reduced parental influence and paternal role-modelling would be another consequence. In view of the parenting deficits and problems as identified through this assessment, this factor is of lesser importance in terms of B.'s best interests . However, parental deficits can be remediated, with acknowledgement and appropriate intervention. In this instance, [Mr.

S.] would require, in the writer's professional opinion, a combination of parent education training and individual therapeutic intervention geared toward understanding his own personal and achievement needs that drive his parenting practices . A probable positive outcome in favour of the move to Pittsburgh, would be an enhanced level of life satisfaction for [Ms. W.]. This would benefit B. vicariously, and the benefit could be significant in terms of assisting B.'s mother in carrying out her parenting functions. The most important consideration, however, should not be the increased life satisfaction for [Ms.

W.] per se, but rather, the reduction or elimination of parental conflict that would be observable to B. Unless these parents can change their long-standing patterns of interaction, there is no remedy, aside from geographical separation, that will reduce the conflict . Parental conflict, in the writer's opinion, is the most significant mitigating factor in terms of B.'s long-term adjustment. The parental dynamics in this family are very destructive . The dynamics can be summarized as follows: When there is parental disagreement (often fuelled by self-esteem issues for both), [Mr. S.] tends to blame [Ms.

W.], and [Ms. W.] tends to blame herself. [Mr. S.] has a strong need to prove himself right. He acts forcefully and relentlessly . This results in self-doubt and guilt for [Ms. W.], followed by ‘ giving-in ’ , subsequent rumination and re-evaluation, resentment and, often-times, defensive opposition to whatever [Mr. S.] might suggest. [Mr. S.] then escalates his efforts in an increasingly controlling manner, being blind to his own

part in the problem - and the cycle continues. In terms of B.'s personal characteristics, and apart from the relationship losses noted above, it is the writer's opinion that he would adjust to a geographic move with relative ease. Once a new routine is established (home, school etc.), he would likely settle in quickly and comfortably. [Emphasis added.] [ 110 ] Ms. Sheptycki then leaves the decision with the judge about whether Ms.

W. should be allowed to move, with the proviso that “ unless these parents can change their long-standing patterns of interaction, there is no remedy, aside from geographical separation, that will reduce the conflict ” . The only alternative is if “ parental deficits can be remediated with acknowledgment and appropriate intervention. ” [ 111 ] I note that the fulcrum on which the Assessor ’ s review turns is her conclusion that any interaction between Ms. W. and Mr. S. is so toxic that it has a fatal effect on B. ’ s potential well-being. She concludes there are but two alternatives: 1. Mr.

S. reform himself on a fundamental level, or 2. physical separation of B. ’ s two parents. [ 112 ] The next paragraph which describes Mr. S. as the controller and Ms. W. as the victim is not, in my view, borne out by the evidence. Perhaps, as a judge who has been exposed to a significant number and range of family law disputes, I am somewhat jaded.

However, if the Assessor characterizes this relationship as “ very destructive ” then certain of my experiences on the bench must fall into a category that is, perhaps, “ apocalyptic. ” More directly, there are strong bases from the evidence before me that allows me to conclude that in this sense these two persons are not so fatally incompatible, and that Mr. S. ’ s role is hardly as malevolent as the Assessor has concluded:

1. There has no been no physical abuse by Mr. S. of Ms. W. nor of his son. 2. The concerns expressed by Mr. S. about Ms. W. ’ s “ depression ” are not without some foundation and should not be regarded as “ demeaning. ” I note the observations of Ms. O ’ Sullivan and Dr. Hurst. 3. The emails communications I have reviewed show that Mr. S. was polite and respectful in his attempts to involve himself in the schooling and recreational activities of his child. Ms. W. basically denied him that right in spite of the Court Order. 4.

Both parents conducted themselves in an appropriate, polite, and professional manner when together in B. ’ s school. This indicates these two individuals are capable of a basic level of cooperation. 5. At no time in the emails was Mr. S. anything but respectful. This contrasts with the unfortunate frequency at which I observe that phenomenon in email and voice communications between divorcing or divorced parents. I note that Ms. W. did not testify to any name calling of any kind from Mr. S. 6. The evidence shows that it is Ms. W., rather than Mr. S., who is obstinate and demanding. With only a few exceptions, Ms.

W. was not prepared to allow reasonable alterations to the court-ordered times, i.e. for even time at Christmas, to assist with hockey on her weekends, to allow extra time to Mr. S. at Spring Break or Father ’ s Day. Instead, Mr. S. is the accommodating parent. Though it was Mr. S. ’ s turn to visit, he promptly provided Ms. W. with the necessary paperwork so she could take B. to Pittsburgh when her grandfather was near death and did die. Plaintiff ’ s counsel argued that the emails were an effort by Mr. S. to create a paper trail to be used as evidence in court.

Even if that was his intention, the emails in fact paint a very different picture from Ms. W. portrait of the man as badgering, bullying, threatening and controlling. 7. Mr. S. was persistent in court applications which sought more parenting time. In that sense, he took the legally appropriate course and did not, for example, refuse to return B. This matter sat in limbo far too long while the parties were always waiting for the bilateral assessment.

The absence of a long-term parenting plan, which should have solved most of the historic access problems, resulted in this inefficient result. [ 113 ] Last, I must comment on Ms. Sheptycki ’ s conclusion of a relationship of control, where Ms. W. has and continues to be a victim. The Assessor concludes that Ms. W. is so intimated by ‘ the controller ’ that she cannot do anything but strictly follow the present Court Order, that is her only shield against his domination. I observe that on cross examination Ms. Sheptycki could not actually explain why that would justify Ms. W. ’ s denial of Mr.

S. ’ s very reasonable requests which, Ms. Sheptycki acknowledged, were in B. ’ s best interests. [ 114 ] So, I do not see it. The Assessor says the domination of Ms. W. is subtle, but I prefer the observation of Dr. Hurst, which flowed from her observations during the pre-separation marriage counselling. These are two incompatible persons. Left on their own, they do not cooperate well. Though I know this differs from the Assessor ’ s conclusion, I simply reject the proposition that Ms.

W. ’ s failure to cooperate post-separation is anything other than her own voluntary choice. [ 115 ] That said, I firmly believe both Ms. W. and Mr. S. want to be good parents. Both demonstrate a deep affection for their child. The key, then, is to structure their interaction in a manner which allows both an appropriate role in B. ’ s life and minimizes their conflict with one another. E. Conclusion on Moving to Pittsburgh [ 116 ] I have concluded Ms. W. should not be allowed to move to Pittsburgh with B. There are multiple bases for this conclusion:

1. The proposed relocation would result in a major disruption to B. ’ s existing relationship to his father and his father ’ s extended family, with no corresponding enhancement of B. ’ s relationship to Ms. W. ’ s relatives, except for her mother. Ms. W. ’ s relationship with her father is non-existent and she is alienated from her sister and her sister ’ s children. 2. Access by the father would be limited because of the distance and air connections between Edmonton and Pittsburgh. At this young age, the Assessor recommends Ms. W. would from time to time travel to Edmonton to allow Mr. S. some access.

That access could not be frequent because the child is in school. Flying that distance (close to 3000 km) is difficult for many adults; I would expect it to be quite disruptive for a child. Access in this manner is therefore impractical and would be financially prohibitive, particularly if Ms. W. does not have employment and Mr. S. is expected to foot the bill. In my view, this arrangement would have a negative impact on the child. 3. Ms. W. has no concrete plans to obtain employment in Pittsburgh nor has she any real plans to be employed in Edmonton. This is now two years after separation.

She is uncertain whether her teaching certificate is still valid in Pennsylvania or whether there are any jobs available in any field. I have a concern that while initially Ms. W. would have about $53,000.00 in child and spousal support and free accommodation with her mother, spousal support, having been paid for two years, will not be there for much longer. This apparent lack of motivation to plan to enter the work force could result in Ms. W. being unemployed with only child support being paid.

This prospect of penury is not in the best interests of this child. [ 117 ] I note similarities to some recent applications of the Gordon v Goertz test by our Court of Appeal. In Pasha v. Pasha , 2012 ABCA 183 at para. 5 the Court observed: ... the appellant did not demonstrate any realistic plan at this time to relocate to Michigan, and her request to be allowed to leave permanently and to go wherever in the world she wishes is telling, both in terms of motive and serious planning.

In our view, the trial judge's conclusion that a move at this time is not in the child's best interests is supported by the record. [ 118 ] In S.M.K. v. O.A.J. , 2012 ABCA 49 , the Court rejected an application by a mother that she be allowed to relocate with her child to England, because she had a well paying ($90,000.00) dental hygienist position available there, but in Canada she would need to retrain: para. 3. The court of appeal at paras. 8-9 approved of the trial judge ’ s conclusion that relocation would disrupt significant and valuable aspects of the child ’ s life.

I ’ m satisfied at this point that a move to the UK would basically sever the child ’ s relationship with her father. I do not believe it is in her best interest to be uprooted from her home, father, and grandparents that she knows. If the defendant is working full-time, [M.] would be in unfamiliar care with unfamiliar caregivers a good portion of the time. That is not in her best interest, taking into consideration her situation at birth. Similarly, in Brill v.

Brill , 2010 ABCA 229 , 86 R.F.L. (6th) 266 the Court rejected an application by one parent to relocate to Israel for economic reasons and to be close to her family. That move was not in the best interests of the children, in part due to its separating those children from their father and the existing social environment: paras. 29-32. [ 119 ] My conclusion is much the same. Early on in the evidence of Ms. W., it became apparent to me that Ms. W. had very little drawing her to Pittsburgh except that it would put the conflict of child custody at rest because Mr.

S. ’ s access would be difficult, problematic and expensive. I do not see her reason for the move as being in the best interests of their child. Her application is denied. F. Custody of the Child in Edmonton [ 120 ] In the event I decide that Ms. W. is not permitted to relocate with B. to Pittsburgh, then the Assessor recommends that Ms. W. have sole custody of the child (Report, p. 31):

[Ms. W.] be designated as B.'s sole custodial parent, having all rights and responsibilities associated with that role. A joint legal custodial arrangement is not advisable due to the parents' high level of conflict and associated negative features in terms of communication and cooperation. [Ms. W.] has provided primary care for B. throughout his lifetime and has done an excellent job in this regard. B. is very dependent upon his mother's care and presence in his life. In addition, it is the writer's opinion that [Ms. W.] is more amenable to self-reflection and positive personal change than is [Mr. S.].

This should hopefully assist her in placing B.'s interests first, when dealing with conflicts that may arise in future. [ 121 ] I disagree with this recommendation. Ideally, both parents should make the decisions for the child, particularly decisions affecting schooling, social and recreational activities, and medical issues. To deny that right to a very interested father, in this case, would make B. ’ s mother the major decision maker in almost all aspects of the child ’ s life. [ 122 ] I observe that to date Mr. S. ’ s post-separation initiatives are generally reasonable. He is interested in B. rec

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