DBF v BF, 2012 ABQB 520

Court of Queen ’ s Bench of Alberta Citation: DBF v BF, 2012 ABQB 520 Date: 20120816 Docket: 4801 145426 Registry: Calgary Between: D. B. F. Plaintiff (Respondent) - and - B. F. Defendant (Applicant) Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C. M. Jones _______________________________________________________ I. Background [ 1 ] This matter originally came before me on January 20, 2012. The parties have one child: T. T is currently eight years old.

[ 2 ] B.F. sought an Order (

i) specifying his periods of parenting time; and (ii) defining the joint custody decision-making arrangements to include the need for consensus of the parties. [ 3 ] More specifically, he sought an Order directing:

a) a shared parenting arrangement such that each of the parties would have T live with them 50% of the time (“50/50 Arrangement”);

b) should this Court decline to order a 50/50 Arrangement, more parenting time than he has under the current interim order (“Interim Order”);

c) equal (50/50) sharing of parenting time during all school and statutory holidays; and

d) that consensus of the parties be required for major decisions that need to be made for their daughter in the areas of non- emergency medical/dental care, education (including change in schools), religion and extra-curricular activities. [ 4 ] The Interim Order, granted on March 9, 2011 by Madame Justice Hunt McDonald, grants B.F. parenting time on alternating weekends from Friday after school until Sunday evening and one overnight visit each week.

The Interim Order is silent with respect to parenting time during school and statutory holidays and on the procedure for making major decisions in T’s life. [ 5 ] D.B.F. objected to the relief sought by B. F. Her Concise Letter of the Plaintiff/Respondent states, among other things, that:

a) B. F. reneged on his agreement to allow T to move to Turkey with D.B.F.;

b) B. F. had been “irregular in taking the child to her ballet and other classes during his parenting time”;

c) B. F. objected to T being registered in her full ballet program;

d) B. F. does not have French language skills to assist T with her homework;

e) B. F. does not have a piano in his home that would allow T to continue her music studies;

f) the activities which B. F. would normally share with T are activities that lend themselves to weekends and holidays;

g) B. F. may not be able to pick T up from school on the one day during the school week which he now spends with her;

h) B. F. has not, to date, lived up to his obligations to pick T up; and

i) B. F. has refused to allow T to be registered in ballet on his parenting night.

[ 6 ] B. F. disputes assertions that he is unable to provide T with an environment which would meet her age specific needs in the context of a 50/50 Arrangement. His Affidavit, sworn January 3, 2012, describes his efforts to provide that environment. [ 7 ] Other issues are at play here. D.B.F. had originally expressed a wish to move to Turkey with T. That application has yet to be brought but I understand that it remains a possibility. B. F. has indicated that he would oppose such a move. [ 8 ] B. F. is involved in another relationship.

His new companion/partner has a daughter who is approximately the same age as T. II Practice Note 7 Intervention [ 9 ] Argument on January 20, 2012 left me with insufficient information upon which to make a decision which would be in T’s best interests. Accordingly, I directed that a Practice Note 7 Intervention be conducted. The question I directed be answered is set out in my Order, filed on February 15, 2012.

At paragraph 2 I stated that: The parties are directed to retain a psychologist for the purpose of conducting the Intervention which shall evaluate, determine, and make a recommendation to the Court as to what the impact on T would be of a change in parenting arrangements from the current arrangement to the arrangements being proposed to this Honourable Court, by the Defendant, which is a shared parenting arrangement. [ 10 ] The services of Amundson & Associates were engaged and a report was issued by Glenda Lux, Registered Psychologist (“Lux Report”) on May 10, 2012. III The Lux Report [ 11 ] Ms.

Lux’s work included:

a) interviewing B. F., D. B. F., T;

b) observing T with each of her parents;

c) administering certain tests she considered appropriate; and

d) contacting T’s counsellor, Dr. Terry Pezzot-Pearce and T’s teacher, Ms. Caroline Marcucci-Dijoux. [ 12 ] The Lux Report relates various concerns which D. B. F. expressed during interviews with Ms. Lux. It is evident from the Lux Report that D. B. F. continues to have concerns with movement to a 50/50 Arrangement. She accepts the following:

a) questions regarding B. F.’s motives in seeking to change the parenting arrangements;

b) extent of adjustment required of T in order to respond to a 50/50 Arrangement;

c) subordination of T’s needs by B. F. to his own needs;

d) inconsistent discharge by B. F.’s of his responsibility to pick T up after school;

e) poor diet while in B. F.’s care;

f) B. F.’s failure to communicate the scope of his new relationship to T;

g) T’s feelings of insecurity about being with B. F.;

h) T’s reluctance to sleep at her father’s residence; and

i) T’s inclination to hide her true feelings from her father. [ 13 ] The Lux Report provides B. F.’s perspective on various concerns raised by D. B. F. He takes a contrary position on most of her points. Notably, he believes that:

a) more contact with T would facilitate a better balance between the influences which each parent provides;

b) D. B. F. is a good mother; and

c) unnecessary provocation should, in T’s interests, be avoided. [ 14 ] The Lux Report details Ms. Lux’s interview with T. The picture which emerges suggests that T enjoys spending time with both parents and that, to use her words, the amount of time she spends with each parent is “just right”. [ 15 ] I was, however, struck by comments which T is purported to have made to Ms. Lux and which are quoted at the top of page 5 of the Lux Report. On the assumption that those quotes are accurate and have not been taken out of context, I was left with the impression that D. B.

F., in her efforts to work through her own unresolved issues with B. F., has an inclination to engage T in that process more than would be appropriate in the case of an eight year old girl. [ 16 ] Psychometric testing of T speaks positively to her adaptive and communication skills. Her counsellor apparently indicated to Ms. Lux that, at the time of the Lux Report’s preparation, T appears to be fairly well protected from the conflict which exists between her parents. She apparently feels safe in both homes and relies on both of her parents.

Her teacher, however, suggests that she is aware of the conflict existing between her parents. [ 17 ] The Lux Reports suggests that T is comfortable with both parents. Ms. Lux expresses no concerns with T’s interactions with her parents. [ 18 ] In argument, Counsel for B. F.’s stated that the Lux Report recommends that a 50/50 Arrangement be implemented. In my respectful opinion, the Lux Report offers no such recommendation. Rather, consistent with the question asked of Ms.

Lux, the Lux Report comments on what the impact on T would be of a change in parenting arrangements from the current arrangement to a 50/50 Arrangement.

[19] It also states that a more detailed evaluation would be required to fully address the question with which I sought assistancethrough a Practice Note 7 Intervention. It provisionally notes that:

a) both B.F. and D. B. F. seem capable parenting T on a full or part-time basis;

b) T enjoys her time with each parent; and

c) D. B. F.’s concerns were not substantiated through independent investigation. [20] The Lux Report adds that a 50/50 Arrangement would not normally be recommended by psychologists in a high conflictsituation such as this. It further observes that, T seems to have been shielded from this conflict until recently. The Lux Report suggeststhat D. B. F. is currently experiencing challenges in shielding T from this conflict. [21] The Lux Report predicts that T’s resiliency would aid her in a transition to a 50/50 Arrangement. Ms.

Lux states that if thisCourt were to direct a 50/50 Arrangement, T would be “at lowest risk in a parenting arrangement that maximizes the amount of contactshe has with each parent.” Those observations, while encouraging, do not amount to a recommendation that a 50/50 Arrangement beimplemented. Ms. Lux goes on to make certain recommendations that she believes would be of value if this Court were to decide to directa 50/50 Arrangement. [22] Counsel for D. B. F. raised certain questions regarding the Lux Report in her letter to counsel for B. F. dated July 9, 2012.

Sheapparently considered answers to those questions necessary for her to be able to make appropriate submissions. [23] I have carefully reviewed those questions. I considered if the answers to those questions might influence my decision. Iconcluded that the issues raised by those questions were adequately addressed in the Lux Report and that a determination of T’s bestinterests need not be dependent upon the answers to those questions. [24] My review of the Lux Report leads me to the following conclusions:

a) neither parent manifests behaviour or personality factors which would seriously impair their ability to participate appropriately inthe parenting process, including a 50/50 parenting arrangement; and

b) while a 50/50 parenting arrangement may offer certain benefits to the child which other arrangements do not offer, it ispotentially inappropriate in situations involving significant continuing conflict between the parents. IV. The Law [25] The test to vary a custody or access order is derived from both statutory and judicial sources. In considering this matter, I havereviewed the following case law: Spencer v Spencer, 2005 ABCA 262, [2006] 371 AR 78; Heikel v Heikel, 2007 ABQB 378, [2008] 44 RFL (6th) 102; Starko v Starko, (AB KB), [1990] 106 AR 62, 74 Alta LR (2d) 168 ; Botticelli v Botticelli, 2009 ABQB 556, [2010] 74 RFL (6th) 367; TMF v JDF, 2010 ABQB 801, [2010] AJ No 1637 (QL); and

Gordon v Goertz, (SCC), [1996] 2 SCR 27, 134 DLR (4th) 321. [26] These decisions are helpful in reaffirming foundational principles, including:

a) the crucial importance of determining the best interests of the child;

b) the non-application of any presumptions for or against a particular parent’s right to assert custody; and

c) the objective of providing maximum contact with a parent, provided it is in the child’s best interests. [27] I have also reviewed the relevant provisions of statute law.

Section 16(10) of the Divorce Act R.S.C., 1985, c. 3 (2nd Supp.)[Divorce Act] provides that: In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contactwith each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness ofthe person for whom custody is sought to facilitate such contact. [28] I note further that section 17(5) of the Divorce Act provides that: Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in thecondition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the lastvariation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take intoconsideration only the best interests of the child as determined by reference to that change. [29] As noted in Spencer v Spencer, at paragraph 9: Section 17(5) of the Divorce Act requires that a judge first find a material change in the child’s circumstances.

It is only after such adetermination that a judge must determine the best interests of the child (emphasis added). [30] I quote further from the decision in Spencer v Spencer where, at paragraph 11, the court noted the determinations in Gordon vGoertz, where, in respect of a change in a child’s circumstances: McLachlin J. (as she then was), clarified that the change must alter the child’s needs or the ability of the parents to meet those needs in afundamental way.

Therefore, the inquiry is not a re-trial of the original decision but rather a necessary consideration of new factors. [31] The impact of these new factors requires its own analysis. McLachlin J (as she then was) stated in paragraph 17 of Gordon vGoertz: The threshold of material change met, it is error for the judge on a variation application simply to defer to the views of the judge whomade the earlier order. The judge on the variation application must consider the matter anew, in the circumstances that presently exist.

[ 32 ] Finally, the “best interests” of the child is a difficult concept to define, but it is not impossible to provide indicators. Viet J recently articulated five interests in paragraphs 31 and 32 of Botticelli v Botticelli : 31. It is in the best interest of every child to - to be safe from physical, psychological and emotional harm; - to have their ordinary and special needs addressed as effectively as possible; - to be nurtured with a view to maximizing their potential. 32.

There are some aspects of best interest which are age related: - the younger the child, the greater the need to have frequent bonding opportunities; - the wishes of older, more mature, children will be taken into account. (emphasis added) [ 33 ] Although the statutory language is cautious, the maximum contact principle may not be in tension with the best interests of the child at all. As the interest in frequent bonding opportunities demonstrates, the maximum contact principle may often actually be perfectly aligned with the best interests of the child in a particular context. V.

Analysis [ 34 ] Have T’s circumstances changed materially since Justice Hunt McDonald issued her decision over a year ago? Do the circumstances in which T now finds herself fundamentally alter her needs or her parents’ ability to meet those needs? This is an important but difficult question. [ 35 ] From D. B. F.’s perspective, it may be asserted that the evidence suggests that T is an intelligent, focussed and functional eight-year old. Rather than indicate that her circumstances have changed materially, D. B.

F. might be heard to assert that T’s circumstances have evolved as her parents might have hoped, given the reality of their separation. T is doing well in school, has friends, and she participates in extra-curricular activities. [ 36 ] From B. F.’s perspective, it may be asserted that it has been a significant period of time since Justice Hunt McDonald’s decision. T is a year older, her father’s relationships have evolved, conflict between her parents persists, and the court record reveals a series of appearances before this Court in an effort to resolve issues apparently unresolvable by her parents.

As noted by Ms. Lux: There are indicators that shielding T is becoming more difficult for D. B. F. which poses a risk to the child regardless of the parenting arrangements. [ 37 ] These changes were not, and could not have been, contemplated in the original order. They require a fresh consideration as new factors in T’s life.

[ 38 ] The material before me does satisfy me that T has undergone a change in her circumstances sufficient to warrant a change to parenting arrangements. It would be too simple to conclude that there is no basis for deciding that her needs are fundamentally different than they were at the time of Justice Hunt McDonald’s Order of March 9, 2011. Similarly, it would be too simple to conclude that changes in her life have not fundamentally altered her parents’ ability to meet those evolving needs. More realistically, changes in the lives of T’s parents are changes in her life.

Her mother appears to continue to manifest a desire to move to Turkey. Her mother also appears to be experiencing continuing challenges in addressing issues arising from the breakdown of the marriage. B. F. is moving on in his relationships. Those relationships will create new challenges (and new opportunities) for the meaningful parenting of his daughter. All of this affects T. [ 39 ] I do not believe movement to a 50/50 Arrangement would itself create a risk of a fundamental change to T’s circumstances or needs, at this stage of her life.

Rather, I am convinced that the move to such an arrangement is an appropriate response to material changes that have already occurred and are ongoing. T is young enough that the amount of bonding time she spends with her father and mother may greatly influence the nature of her relationship with each of them. D. B. F.’s difficulties in separating T’s interests from the conflict with B. F. were a noted concern in the Lux Report. I share these concerns. [ 40 ] I realize that 50/50 Arrangements stand a greater chance of succeeding in circumstances involving limited parental conflict.

The Lux Report suggests that her parents have been reasonably successful in shielding T from this conflict. However, it also suggests that D. B. F.’s ability to handle such conflict may be deteriorating with time. This will continue to be an evolving issue which will need to be addressed regardless of what parenting arrangement is selected. VI. Decision [ 41 ] In respect of T born [...] [...], 2004, I direct as follows:

a) beginning September 4, 2012, T’s parents shall implement a shared parenting arrangement such that each of the parties would have T live with them 50% of the time;

b) consistent with the recommendations in the Lux Report, parenting shall change on Friday (after school during the school year and at 5:00 p.m. during the summer holidays);

c) such an arrangement shall include equal (50/50) sharing of parenting time during all school and statutory holidays;

d) the parent who does not have parenting responsibilities during a particular week (the “off duty” parent, to quote the Lux Report) shall have a mid-week supper visit; and

e) the parties shall retain joint custody of T, which already requires the consensus of the parties for major decisions affecting their daughter in the areas of non-emergency medical/dental care, education (including change in schools), religion and extra-curricular activities. I make no further order in that regard. [ 42 ] The parties are directed to provide written submissions to me within thirty days of this judgment regarding costs, including the costs of the Lux Report.

Heard on the 20th day of January, 2012. Dated at the City of Calgary, Alberta this 16th day of August, 2012. C. M. Jones J.C.Q.B.A. Appearances: Janet E. Russel, Q.C. For the Plaintiff Elaine L. Lenz, Q.C. For the Defendant