PJA v SCC, 2015 ABQB 800

Court of Queen ’ s Bench of Alberta Citation: PJA v SCC, 2015 ABQB 800 Date: 20151216 Docket: FL01 20015 Registry: Calgary Between: PJA Applicant - and - SCC aka SCL aka SCA Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Bryan E. Mahoney _______________________________________________________ Background [ 1 ] The parties, PJA (the “Father”) and SCC (the “Mother”) are the divorced parents of an 11-year old daughter whose primary residence is with the Mother. Issues exist between the parents as to the parenting contact time for the Father. On 10 June, 2015, I was appointed case management judge by Chief Justice Wittmann.

[2] The Father is represented by counsel, Dora Simonin, and Mother is self-represented. Counsel, Sallee Maxwell, has beenappointed on behalf of the Child. In keeping with the court’s case management protocol for high conflict parenting cases, the partieswere directed by the Chief Justice to first meet with case management counsel, Catherine Christopher QC, in an attempt to resolve thedispute. [3] There exists a June 12, 2015 supervised parenting contact order that the Father seeks to vary. The person designated tosupervise the Father’s parenting time was Dr. Jody Carrington.

The Mother lives in Crossfield and the Father lives in Didsbury. [4] On 12 June, 2015, I conducted an oral hearing review of an Emergency Protection Order. I adjourned the matter to 29September, 2015. I asked the parties to prepare a case management hearing agenda setting out the issues with a brief discussion of eachparty’s position. Both parties complied. [5] The Father seeks unsupervised parenting contact time with the Child on a regularized basis including holidays, vacation andtravel. The Mother opposes the Father having unsupervised parenting contact time.

She states that the Child does not want to spend timewith the Father, whether supervised or unsupervised. This is confirmed by Dr. Carrington through interviews she had with the Child. [6] At the 29 September, 2015, case management hearing the parties took conflicting positions on what would be in the Child’sbest interests. I read the supervision reports from Dr. Carrington of the last few supervised visits between the Father and the Child. Dr.Carrington also provided some recommendations in her

summary. She recommended that the visits between the Father and the Childcontinue, although she would no longer agree to act as the supervisor. She took this positon because the Mother was of the view that Dr.Carrington was in a conflict of interest position due to her dual role as a counselor and supervisor. Dr. Carrington also recommended thatthe “progression of treatment” be left up to the Child. Dr.

Carrington thought the family was moving closer to healing their past hurts andshe would continue to be available to the family if they wanted her help. [7] Given the importance of confirming the Child’s views, the conflicting evidence as to how the supervised visits wereaffecting her, plus the parties’ scarce resources and the pressing need to decide the next step, I directed counsel and the parties to bringthe Child to the next case management hearing scheduled for 24 November, 2015. It is in the Child’s best interests that the courtunderstand the Child’s developmental and emotional needs.

A Child approaching the age of 12 has the right to feel that they have somecontrol over their life. [8] At the case management hearing on 24 November, 2015 I first met with counsel and the parties to explain why and how Iplanned to conduct my interview with the Child. I told them that after I met with the Child I would summarize for them the results of myinterview. I asked that counsel for the Child and case management counsel remain in the courtroom with me and the court clerk duringthe interview. The parents and counsel for the Father were asked to leave the courtroom and the Child was brought in.

I met the Childwhile sitting with her at the counsel table. Of course, everything was recorded. [9] I was satisfied that the Child was comfortable in talking to me and that she could speak about her needs and wishes,authentically and rationally. Proceeding with questions to the Child, it became abundantly clear to me that the Child adamantly did notwant any contact with the Father. Her position did not falter even after some probing by me which included suggestions of alternativeFather contact scenarios. When I concluded my interview, I invited counsel for the Child to ask any questions she had.

In response to herquestions, the Child was again adamant that the Father had hurt her and the family, and she did not want contact with him. [10] Hearing the Child express freely and persistently her negative feelings toward the Father, I had no way of determiningwhether those feelings were significantly proportionate to the Child’s actual experience with her Father or whether there were otherreasons. [11] Without the benefit of a full trial it is not possible to determine why the Child harbours the negative feelings she has about herFather.

There was consensus among all parties that this matter should be set for a trial. I directed a three-day trial be scheduled. I told theparties that I would release a decision about parenting contact time pending the trial. Father’s parenting time pending the trial [12] In making a decision on an interim parenting order pending the trial, I refer to Letourneau v Letourneau 2014 ABCA 156,where the Case Management Judge allowed increased access by a father to a 14-year old girl.

Prior to this access Order, a Practice Note 7intervention was ordered to implement family restructuring therapy, and the Practice Note 7 report stated that the mother had alienatedthe daughter from the father such that family restructuring was futile and judicial intervention required. [13] In Letourneau, the child did not want to see her father. The case management judge held that the mother’s efforts to alienatethe daughter from the father left “no meaningful relationship” with either of them and thwarted all efforts to rebuild a relationship.

Thedaughter as a result showed no affection for the father, had no communication with him and exhibited fear in his presence. The motherappealed the access order, and other parts of the Order. The Court of Appeal upheld the Order for access, and stated at paragraph 10: While the case management judge’s reasoning that the child would be best served by having some semblance of a normal relationshipwith her father meant discounting the child’s wishes, this was no error in principle given his finding of parental alienation.

In suchcircumstances, it was open to him to take the child’s “wishes” as not truly reflecting the child’s wishes, but rather as a vicariousexpression of the controlling parent’s wishes which should not be taken into account in crafting an access order in the child’s bestinterests: Tonowski v Tonowski, 2002 ABQB 1018 at para 18. These considerations amply justify the case management judge’sorder regarding access, including the restrictions on communications between the mother and child. [14] In Schamber v Schamber

(2011) ABQB 473, the court heard a trial over mobility of a 7-year old boy and the father’sparenting time. The trial judge permitted the boy to move to Regina with his mother, and provided a regime of contact, such as Skype,and parenting time for the father. Here, there was an professional assessment conducted, and the trial judge also interviewed the boy. TheCourt, starting at paragraph 2 stated:

....The assessor was concerned that some of the mother’s approaches to the father’s parenting time amounted to “gatekeeping” and that her attitude created the possibility of parental alienation. I too had concerns about the mother’s attitude to the father. But the evidence was overwhelming that the child was thriving in every respect while in the primary care of the mother and I concluded that it was in the best interests of the child to allow the proposed move. My interview with the child did not allay my concerns.

It quickly became apparent that he was being provided inappropriately with details of the parental dispute. He came with more than a dozen pages of notes. Some were probably done at least partly on his own but many more were likely prompted by someone else. He attributed any assistance to his counsellor. I am also satisfied that certain incidents during the father’s parenting time have offended the child so the father is not entirely without fault.

But it appears the mother does little to put the father in a positive light, rather seizing on and magnifying his deficits in the eyes of the child. [ 15 ] Pending trial, the Father’s counsel urged unsupervised parenting contact with the Child. This was not acceptable to the Mother. [ 16 ] It is clear that the Child is thriving in the primary care of the Mother inside her current blended family. The Child told me she cares for her step-father who she says is a loving family man. She also has two siblings with a third one due forthwith. She thrives at school, obtaining top marks.

She impressed me as a mature child who showed courage and determination to stand up for what she had to say. I am concerned that at this time that an order forcing her to have supervised or unsupervised contact with her Father, without professional therapeutic counselling, would harm her development and emotional needs. She has a strong attachment to her Mother and there is continuity of care in the family she lives in.

Her wishes are clear even if the reasons for those wishes are as yet not well-defined in the evidence. [ 17 ] It would be helpful for the Father to work on communication and parenting skill development that could lead to joint therapy sessions with the child if a neutral childcare professional so recommends. This will likely take time and careful monitoring. Conclusion [ 18 ] There will be no interim parenting contact order pending the trial.

Case management counsel, counsel for the Father and counsel for the Child, in consultation with the Mother who is self-represented and about to deliver her fourth child, by court order are to obtain a three-day trial date. As case management judge, I will not be the trial judge. The issues at the trial will be the Father’s parenting contact time and whether there has been parental alienation on behalf of the Mother. [ 19 ] My order will require counsel and the Mother to agree on a

schedule of dates for questioning, for producing an affidavit of documents, for complying with undertakings, and for exchange of expert reports if any. The trial fee shall be paid for by the Father with his right to claim it back from the trial judge when speaking to costs. [ 20 ] Costs to date will be in the cause. Heard on the 24 th day of November, 2015. Dated at the City of Calgary, Alberta this 16 th day of December, 2015. Bryan E. Mahoney J.C.Q.B.A. Appearances: Dora J. Simonin, Martinson & Harder

for the Applicant SCC, not represented by counsel Sallee G. Maxwell, Family Law Office (Legal Aid) for the Child