AE v. TE, 2017 ABQB 449

Court of Queen’s Bench of Alberta Citation: AE v. TE, 2017 ABQB 449 Date: 20170721 Docket: 4803 174908 Registry: Edmonton Between: A.E. Plaintiff - and - T.E. Defendant Corrected judgment: A corrigendum was issued on September 21, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.N.

Renke _______________________________________________________ [ 1 ] This judgment concerns parenting for the two children of the parties’ marriage, based on evidence tendered in a viva voce hearing held on June 15 and 16, 2017. I will refer to the Plaintiff as the Mother and the Defendant as the Father. For the reasons that follow, I have decided that (

a) the children shall primarily reside with the Mother. (

b) the Father shall have parenting time on the dates specified below; for the Father’s parenting time to be increased, the Father must satisfy the conditions identified. (

c) the Father’s parenting time shall not be supervised. (

d) the Father’s parenting time shall be exercised at the paternal grandparent’s residence. (

e) contact between the children and the paternal grandparents shall not be supervised, but the paternal grandmother shall not be present at exchanges.

(

f) exchanges shall occur in a public place as described below. (

g) the parties shall abide by a communication protocol. (

h) while the Mother shall have authority to make day-to-day decisions about the children, the Father shall be informed of and consulted about significant decisions respecting the children, including medical, dental, and other health-related matters, educational and school matters, and religious or spiritual matters.

Next steps for the litigation (as the matter is in case management) and the process for determining costs for this hearing and the April 20, 2017 application as well as the apportionment of the Practice Note 8 assessment cost are addressed below. [ 2 ] I will begin by providing some background about the parties and the children, set out the procedural history of the litigation, and review governing principles.

I will then turn to the issues and the evidence. [ 3 ] Counsel and I have generally used “parenting” language rather than the inapt but statutory language of “custody.” Children are neither chattels nor prisoners. The language use does not bespeak statutory confusion but an effort to describe relationships properly. See Rensonnet v Uttl , 2016 ABCA 196 at para 28 . I. Background . 5 II. Procedural History . 6 III. Principles: Best Interests of the Children . 8 A. Elements of the “Best Interests of the Child” Analysis . 9 1. Maximum Contact with Each Parent 10 2. History of Care for the Child . 11 3.

Parenting Capacity or Ability . 12 4. Relationship between the Parents . 13 5. Cultural, Linguistic, Religious, and Spiritual Factors . 13 6. Special Needs . 13 7. Connection to Place and People other than the Parents . 14 8. The Child’s Views and Preferences . 14 9. Past Conduct 14 B. Elements Not at Issue . 14 C. Burden of Proof 15 1. Evidential Burden and the Duty of the Parties and the Court 15 2. Fact Finding . 16 3. No Presumptions . 16 IV. The Evidence . 17 A. The Children . 17 B. The Parents . 18 1. Matters not Considered . 18 (

a) Evidence Disregarded . 18 (

b) Incidents and Allegations Disregarded . 19 2. Credibility . 20 3. The Parties’ Relationship . 20 (

a) Period of Cohabitation . 20 (

i) Domestic Life . 20 (ii) Emotional Abuse . 21

(

b) Post-Relationship Civility . 22 (

c) Breakdown . 22 (

d) Post-Breakdown Interactions . 23 C. The PN 8 Process . 24 1. Legal Framework . 24 (

a) Admissibility . 24 (

b) Weight 25 (

c) Ultimate Issue . 25 2. Non-Controversial Aspects of the PN 8 Evidence . 26 3. The PN 8 Report 27 (

a) Collaterals . 27 (

b) Personal Observations . 27 (

i) September 27, 2016 Mother’s Home Observation . 28 (ii) October 23, 2016 Father’s Home Observation . 28 (iii) October 26 Contact by the Mother 29 (iv) November 2016 Office Visits . 29 (

v) February 2017 Non-Office/Non-Home Observations . 29 (vi) Interviews with the Father 29 (vii) Interviews with the Mother 30 (

c) Test Results . 31 (

i) Similar Results . 31 (ii) MMPI-2 Results . 31 (

d) Findings . 32 (

i) The Father 32 (ii) The Mother 33 (

e) Recommendations . 33 4. Criticism of the PN 8 Report - Approach . 33 (

a) Nature of Work Product Reviews . 34 (

i) Perspective of the Critique . 35 (ii) Legal Perspective . 35 (

b) Overall Method . 36 (

c) Alleged Threats to Validity and Reliability . 36 5. Bias . 36 (

a) Legal Standards concerning Bias and Expert Evidence . 37 (

b) Confusions to be Avoided . 37 (

c) Was Dr. Seitz Biased? . 39 6. Methodological Concerns . 41 (

a) Interim Opinion . 41

(

b) Inconsequential Concerns . 44 (

i) Referral Questions . 44 (ii) Collaterals . 44 (iii) Written Questionnaire Follow-up . 45 (

c) Replicability Concerns . 45 (

i) MMPI-2 Comparators . 45 (ii) MMPI-2 Results . 46 (

d) Data Gathering Concerns . 47 (

i) Interviews without Written Questions . 47 (ii) Substance Abuse . 48 (iii) Third Party Informed Consent 49 (

e) Data Analysis . 50 7. Conclusion respecting the Reliability of the PN 8 Report 51 8. The PN 8 Report and AJU v GSU .. 52 D. Additional Judicial Findings . 53 1. The Mother 53 2. The Father 54 (

a) Manner of Testifying . 54 (

b) Past Acts and the Conversion . 54 (

c) The Father and Court Orders . 56 (

d) Alienation and Manipulation . 57 (

e) N’s Hair 58 (

f) The Father’s Recent History . 58 (

g) Communication Since Separation . 58 V. Parenting Assessment 59 A. Division of Parenting . 59 1. Shared Custody or Shared Parenting? . 59 2. Primary Residence . 60 3. Father’s Parenting Periods . 61 4. Father’s Parenting – Overnights and Supervision . 61 5. Father’s Parenting – Extending Parenting Times . 64 B. Supervision of Contact by Paternal Grandparents . 66 C. Exchanges . 67 D. Decision-Making Authority . 67 E. Additional Issues . 69 F.

Summary of Determinations . 69 VI. Next Steps . 72 A. Christmas Parenting . 72

B. Costs . 73 I. Background [ 4 ] The parties were married in July 2011. They separated for about a month in 2013 and separated terminally in September 2015. They were together about 4 years. They have been separated now for about 2 years. [ 5 ] R, their son, was born in the summer of 2012 and is nearly 5. N, their daughter, was born in the summer of 2014 and is nearly 3. [ 6 ] They lived together in a dwelling on the paternal grandparent’s property near a small Alberta community. After separation the Mother moved to her parent’s home.

The Father has recently moved to Red Deer. [ 7 ] After separation the parties navigated parenting for several months without a court order. II.

Procedural History [ 8 ] Justice Manderscheid granted an interim Order dated March 18, 2016 (the Manderscheid J Order) that included the following terms: • the Mother shall have primary care of the children (para 1), • the Father shall have parenting time every second weekend, initially Friday to Sunday but as of April 23, Thursday to Sunday, and 2 hours of parenting time on a weeknight; this parenting time was unsupervised (paras 2 – 4), • on request by the Mother, the Father shall submit to hair follicle tests (once per month); the results shall be released to counsel for the parties (para 5), • the parties shall not consume alcohol or non-prescription drugs during parenting time (paras 6 and 7), • during the Father’s parenting time, all firearms shall be removed from his residence and be under “lock and key” (para 8), • neither party shall physically discipline the children (para 9), • the Father shall pay child support (para 11), and • the parties shall apply for case management and obtain a Practice Note 8 Assessment Order; the Father shall bear the initial cost of the assessment but the Court may later apportion this cost differently. [ 9 ] I was appointed Case Management Justice. [ 10 ] I granted the Practice Note 8 Assessment Order on May 16, 2016.

Dr.

Joanne Seitz was selected by the parties to conduct the assessment and was so appointed under the order (the PN 8 Order). [ 11 ] On October 12, 2016 I granted an interim Order that included the following terms (the October 12 Order): • the Father’s parenting time shall be supervised by either of his parents or his sister (para 3), • weeknight access was varied to a different evening and the Father would have additional access as agreed by the parties (para 4), • the supervision condition shall be removed on 3 successive hair follicle tests showing no drug use (para 5), • the Father “shall arrange to attend drug counselling with an addictions counsellor ... and shall also attend [N]arcotics [A]nonymous.

One month from the date of this Order ... [the Father shall provide an affidavit that] confirms he has commenced this counselling” (para 10), • counsel for the Mother “may write a brief letter to [Dr. Seitz] ... requesting her opinion as to whether counselling outside the ongoing ... Assessment should be arranged for [R], and asking Dr. Seitz’s opinion on proposed counsellors ....” (para 11), • each party shall refrain from discussing any aspect of the litigation with the Children (para 12), • the Order shall be personally served on the Father’s parents (para 13). [ 12 ] Counsel for the Mother wrote to Dr.

Seitz about counselling for R on October 27, 2016 and Dr. Seitz responded with correspondence dated October 28, 2016 (the Interim Opinion). Dr. Seitz confirmed that counselling would be helpful for R but should commence after her interviews with him. Dr. Seitz went on to describe two sets of events that occurred shortly before she received counsel’s letter. Dr. Seitz’s letter will be discussed in detail below. [ 13 ] Dr. Seitz provided a Parenting Time/Parenting Responsibilities Assessment Report under Practice Note 8 dated March 15, 2017 (the PN 8 Report).

[14] The Mother applied for parenting time generally following the PN 8 Report recommendations. Briefly, the Mother sought toreduce the Father’s parenting time by eliminating overnights and to require supervision of his parenting time, not by family members butby an accredited agency. The Father sought a return to the parenting terms of the October 12 Order pending a critique and review of thePN 8 Report.

Earlier, the Father had applied for shared custody. [15] On April 20, 2017, I granted an Order that included the following terms (the April 20 Order): • the Father shall have parenting time every other weekend; he shall no longer exercise weekday access but compensating time shallbe added to his weekend access (para 12), • supervision of the Father’s parenting time shall be by the paternal grandfather or paternal aunt (para 7), • the paternal grandfather or the Father’s sister shall pick up or deliver the children at specified public locations (para 6), • the Father shall submit to a complete mental health assessment and specified therapeutic and health care records shall be providedto the assessor (para 4), • the Father shall forthwith submit to a hair follicle screening test and the results shall be released to counsel for the parties (para 8), • “There shall be no communication between the parties at the exchanges of the Children nor shall there be any communicationbetween the paternal grandparents, supervisors, and the ...

Mother” (para 10), • the parties shall follow a scheduled e-mail protocol (para 9), • the Father shall not cut N’s hair (para 12), • R shall attend play therapy (para 5), and • the “parenting matter shall proceed to [an] Oral Hearing of Dr. Joanne Seitz, [Ms. Glenda Lux who shall provide a “critique” of thePN 8 Report], and [viva voce] cross-examination of the parties on [their] Affidavits ....” (paras 2 and 3). [16] Glenda Lux provided a Work Product Review of the PN 8 Report dated June 12, 2017 (the Critique). [17] The viva voce hearing was held on June 15 and 16, 2017.

The hearing evidence included • the cross-examination of the parties • affidavits filed by the parties in the proceedings • transcripts of questioning on affidavit of the parties • testimony of Dr. Seitz • testimony of Ms. Lux • the PN 8 Report • the Critique • Dr. Seitz’s response to the Critique The parties subsequently filed written submissions. III. Principles: Best Interests of the Children [18] As the “parenting matter” is at issue, the driving principle or set of principles is the “best interests” of the children.

Both ss.16(8) and 17(5) of the Divorce Act (the latter respecting variation orders) direct that custody orders turn exclusively on the best interestsof the child: 16(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage asdetermined by reference to the condition, means, needs and other circumstances of the child. 17(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change inthe condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or thelast variation 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. [emphasis added] Justice L’Heureux-Dubé described the complexities of the “best interests” assessment and noted its prospective rather than retrospectiveorientation in Young v Young, (SCC), [1993] 4 SCR 3 at 65: In contrast to most issues that come before the courts, such decisions are “person-oriented” rather than “act-oriented” and require anevaluation of “the whole person viewed as a social being” (L.

LaFave, “Origins and Evolution of the ‘Best Interests of the Child’

Standard” (1989), 34 S.D.L. Rev. 459; R. H. Mnookin, “Child-Custody Adjudication: Judicial Functions in the Face of Indeterminacy”(1975), 39 Law & Contemp. Probs. 226). Courts are required to predict the happening of future events rather than to assess the legalimport of past acts and judge the effect of various relationships on the best interests of the child, all the while weighing innumerablevariables without the benefit of a simple formula.

Justice L’Heureux-Dubé encapsulated this assessment in Young v Young at 78: Under the best interests test, courts must consider how to best foster the child’s overall development and protect the child from conflictand the disruptive effects of divorce at a vulnerable point in his or her life. [19] I will review the general elements of the “best interests of the child” analysis and the burden of proof then identify elementsnot playing a significant role in this case. A.

Elements of the “Best Interests of the Child” Analysis [20] Subsection 16(8) provides that best interests must be approached “by reference to the condition, means, needs and othercircumstances of the child.” These considerations embrace the child’s needs and the parents’ ability to meet those needs.

See Gordon vGoertz, (SCC), [1996] 2 SCR 27, McLachlin J, as she then was, at para 43. [21] The “best interests” assessment is not merely a risk and risk management assessment concerned with potential harm to a child.Potential harm, of course, must be a factor in the assessment but the assessment must also consider factors that will enhance or improve achild’s well-being. According to Justice Abella, then of Court of Appeal, in M. (B.P.) v M. (B.L.D.E.), , 97 DLR (4th)437 (Ont CA) at 461, “[t]he best interests of the child is not simply the right to be free of demonstrable harm.

It is the positive right tothe best possible arrangements in the circumstances of the parties.” Justice McLachlin came to a similar conclusion in Young v Young at 119: Risk of harm to the child is not a condition precedent for limitations on access. The ultimate determinant in every case must be the bestinterests of the child. Many decisions on access may involve no reference to harm.....

On the other hand, in some cases the risk of harm may be a factor to be considered in determining what is in the child's best interests. [22] Securing the best interests of the child entails protecting the child physically, psychologically, and emotionally, andpromoting the child’s physical, psychological, and emotional flourishing.

The relevant considerations may be classified as follows: (1) the maximum contact principle, (2) the history of care for the child, (3) parenting capacity or ability, (4) the relationship between the parents, (5) cultural, linguistic, religious, and spiritual factors, (6) special needs of the child, (7) the child’s connection to place and people other than the parents, (8) the child’s views and preferences, to the extent that it is appropriate to ascertain them, and (9) the parents’ relevant past conduct. 1.

Maximum Contact with Each Parent [23] Subsections 16(10) and 17(9) of the Divorce Act provide as follows: 16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as muchcontact with each spouse as is consistent with the best interests of the child …. 17(9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage shouldhave as much contact with each former spouse as is consistent with the best interests of the child ….

Justice McLachlin noted in Young v Young at 120 that this statutory direction ... is significant. It stands as the only specific factor which Parliament has seen fit to single out as being something which the judge mustconsider. By mentioning this factor, Parliament has expressed its opinion that contact with each parent is valuable, and that the judgeshould ensure that this contact is maximized .... Justice McLachlin repeated this reminder in Gordon v Goertz at para 24.

Justice Pentelechuk put this point well in AJU v GSU, 2015ABQB 6 at para 78: “Children are entitled to a loving, nurturing relationship with both parents. For children to survive and thrive throughthe divorce process, they need permission and freedom to love each parent, in an environment with minimal conflict.” [24] Maximum contact, though, is not an independent principle or a principle superior to the best interests of the child. It is notsimply a principle of maximum contact understood as favouring an equal allocation of parenting time but a principle of maximizing

contact with each parent to the degree or extent consistent with the child’s best interests. Thus Justice McLachlin continued in Young v Young that The modifying phrase “as is consistent with the best interests of the child” means that the goal of maximum contact of each parent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted. The inherent limitation of maximum contact was also recognized by Justice McLachlin in Gordon v Goertz at para 24 : The “maximum contact” principle, as it has been called, is mandatory, but not absolute.

The Act only obliges the judge to respect it to the extent that such contact is consistent with the child's best interests; if other factors show that it would not be in the child's best interests, the court can and should restrict contact ....

The recognition of the inherent limitation of maximum contact is manifest in Justice L’Heureux-Dubé’s comment in Young v Young at 83 that [W]hile most research discloses that continued contact with both parents after divorce is normally in the best interests of the child, that finding cannot be separated from a consideration of the degree of conflict to which the child will be subject .... [ 25 ] Nonetheless, Justice McLachlin emphasized in Young v Young that maximum contact is limited only insofar as it impinges on the best interests of the child.

Maximizing contact is not eliminated from consideration just because some impingement is attributable to a specific level of contact. Put another way, maximum contact is a matter of degree. At one degree of contact, the adverse consequences for the child’s best interests may outweigh the benefits of that contact. At another (say lesser) degree of contact, the benefits of contact may outweigh any potential adverse effects for the child. The challenge is to maximize parental contact while still promoting the child’s best interests.

Thus Justice McLachlin stated in Young v Young at 118 that To the extent that contact conflicts with the best interests of the child, [contact] may be restricted. But only to that extent.

Parliament's decision to maintain maximum contact between the child and both parents is amply supported by the literature, which suggests that children benefit from continued access: Michael Rutter, Maternal Deprivation Reassessed (1981), Robin Benians, “Preserving Parental Contact: a Factor in Promoting Healthy Growth and Development in Children”, in Jo Tunnard, ed., Fostering Parental Contact: Arguments in Favour of Preserving Contact Between Children in Care and Their Families (1982).

Wood J.A. in the Court of Appeal, put the matter as follows at p. 93: It seems to me that at the very least, by enacting this subsection [ s. 16(10) of the Divorce Act ], Parliament intended to facilitate a meaningful, as well as a continuing, post-divorce relationship between the children of the marriage and the access parent. Without limiting the generality of the adjective “meaningful”, such a relationship would surely include the opportunity on the part of the child to know that parent well and to enjoy the benefit of those attributes of parenthood which such person has to share.

In most cases that would clearly be in the best interests of the child, and the best interests of the child, not parental rights, are the focus of the whole of s. 16 of the Act. 2. History of Care for the Child [ 26 ] The “history of care” factor concerns the child’s psychological best interests. The history of care is relevant to maintaining stable relationships of the child with his or her parents.

The history of care is also relevant to the child’s degree of attachment to a particular parent and to the ill effects of diminishing a child’s connection to the parent with whom the child has a strong or the stronger bond. Thus, Justice L’Heureux-Dubé wrote in Young v Young at 66-67 as follows: Probably one of the most significant factors in many cases will be the relationship that the child entertains with his or her parents. This must necessarily encompass such considerations as the strength of the emotional ties and the role of the person who has provided primary care in the life of the child.

Goldstein, Freud and Solnit’s Beyond the Best Interests of the Child , supra , while perhaps lacking in empirical data, remains an influential analysis of the psychological needs of children following divorce. The authors emphasize, among other factors, the importance of continuity in the child’s relationships and conclude that the major focus of custody decisions should be to preserve and protect the relationship between the child and his or her psychological parent ....

While the Act places the emphasis on the best interests of the child rather than the wishes of the custodial parent, Weisman observes at p. 62, supra , that research indicates that “the child’s relationship with the custodial parent may well be the most important factor affecting long - term outcome.

Judges should therefore exercise caution before intervening in any manner that may introduce added stress to this relationship”. [ 27 ] The importance of respecting the relationship between the child and the psychological parent as contributing to the child’s best interests was confirmed by the Court of Appeal in Milton v Letch , 2013 ABCA 248 . At paras 14 and 15, the Court of Appeal held that it is an error in principle to fail to address the extent to which a child may have bonded with the parent in whose “primary care” the child has been since birth.

In DLW v HAD , 2015 ABCA 203 , Justice Topolniski’s Special Application reasons were quoted and her findings were upheld.

She is quoted at para 3: “A key consideration in these cases is the importance of the child remaining with a parent to whose custody the child has become accustomed and weighing that against continuance of full contact with the child’s effective access parent, its extended family and its community ….” She added: “And do think about the bond between parent and child, and the effects separation might have upon the child if primary care was awarded to the parent who had not previously been the primary caregiver.

It is clear from the case authorities that where one parent has assumed a greater role in caring for the child, Courts must consider theimpact on the child of making any change to the parenting arrangement….” And at para 6: “The existing custody and access arrangement, the ability to maximize contact and the status quo, the mother has been the child’sprimary caregiver since birth. There is no question of that. She is the constant….” 3. Parenting Capacity or Ability [28] The parenting capacity or ability factor concerns the ability of each parent to care for and meet the needs of the child.

Threetypes of considerations may be relevant. First, the parent’s personality or psychological dispositions or abilities, insofar as these arerelevant to parenting. Second, any evidence of transactions with the child that reflects on parenting ability. Third, any plans forpromoting the child’s best interests. 4.

Relationship between the Parents [29] As set out in s. 16(10), “a child of the marriage should have as much contact with each spouse as is consistent with the bestinterests of the child and, for that purpose, [the court] shall take into consideration the willingness of the person for whom custody issought to facilitate such contact.” This is the “friendly parent” rule.

According to Justice Sheila Martin, as she then was, in RVM v WFL,2009 ABQB 138 at para 86: [86] Maximum contact with both parents is to be encouraged, and ... the courts are likely to favour the friendly parent, that is the parentwho will help to encourage contact between the child and the other parent. The “friendly parent rule” ... has served to favour parents whoare best able to foster a relationship between the child and the non-custodial parent: Ganden v. Kovalsky, 2003 ABQB 20, Zambonelli v.Zambonelli, 2002 ABQB 917....

This “rule” concerns the degree of cooperativeness in co-parenting of each of the parents. [30] A particular application of this “rule” arises if shared custody is sought. Shared custody, one might say, requires that bothparents be willing to facilitate the shared co-parenting arrangement. Justice Poelman wrote as follows at para 203 of Rensonnet v Uttl,2016 ABQB 95, affd 2016 ABCA 196: [203] ... [T]he cases caution against equal parenting in high conflict relationships.

Fraser C.J.A. held that “as a general proposition, jointcustody and shared parenting arrangements ought not to be ordered where the parents are in substantial conflict with each other,” andjoint custody requires a sincere and genuine willingness by both parents to work together to ensure the success of the arrangement:Richter v Richter, 2005 ABCA 165, 371 A.R. 1, para 11. Other provinces have taken the same approach: Vollmershausen vVollmershausen, 2013 ONSC 4273, 229 A.C.W.S. (3d) 1069, paras 9 and 15 to 25; Stewart v Stewart, (BC CA),[1994] B.C.J.

No. 481, 2 R.F.L. (4th) 53; and Poirier v Poirier, 2011 SKQB 298, 381 Sask. R. 111, paras 47 to 48. However, a parent opposing shared parenting may not be entitled to rely on his or her intransigence or unreasonableness alone: AJU vGSU at paras 70-73. [31] A further aspect of this “rule” concerns the contrary of willing facilitation of the other’s parenting. If a parent activelyalienates the children from the other parent, the alienating parent’s time with the child may need to be curtailed. Contact with thealienating parent harms the child by harming the child’s relationship with the other parent. 5.

Cultural, Linguistic, Religious, and Spiritual Factors [32] The parents may differ on what they consider to be the best cultural, linguistic, religious or spiritual needs of the child, and intheir plans or proposals for the child to pursue these matters. The heritage of either or both parents, opportunities available to the child,and the inconsistency or consistency of these matters with other interests of the child may be relevant considerations. See LAU v IBU,2016 ABQB 74, Michalyshyn J at paras 203-204. 6. Special Needs [33] A child may have special physical or psychological needs.

One parent or the other may be better placed to deal with ormanage those needs. 7. Connection to Place and People other than the Parents [34] A child, especially an older child, may have strong connections to a particular place, involving strong connections to friends,school, or extra-curricular activities.

A particular place may have resources that permit a child’s special needs or interests (or skills ortalents) to be accommodated. [35] A child may have strong connections with one or both parents’ extended family. [36] The adverse impacts of a parenting arrangement on a child’s relationships with place and people other than the parents shouldbe considered, even if this factor is not of decisive weight on its own. 8. The Child’s Views and Preferences

[ 37 ] An older child with a degree of maturity (perhaps age 13 or older) may have views about the parenting arrangement he or she would prefer. The child’s views should be considered but are not determinative (keeping in mind the practicalities of preferences of near- to-age-of-majority children). [ 38 ] Young children’s views should not be sought. They are not likely to be able to work out what is in their best interests. Drawing them into parental conflict is contrary to their best interests. They should be preserved from exposure to parental conflict.

On the one hand they may be too easily swayed by one parent or the other; on the other hand they may be torn by trying to favour both parents. 9. Past Conduct [ 39 ] Subsections 16(9) and 17(6) of the Divorce Act clearly establish that past parental conduct, “however meritorious or however reprehensible, does not enter the analysis unless it relates to the ability of the parent to meet the needs of the child:” Gordon v Goertz at para 21 .

The statutory provisions provide as follows: 16(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child. 17(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought. [ 40 ] Past parental conduct is not immunized from scrutiny but the Act does expressly impose a requirement of relevance to parenting ability. B.

Elements Not at Issue [ 41 ] In this case, several potential elements of the best interests assessment were not engaged. [ 42 ] In terms of special needs, as will be reviewed below, R has some physical challenges but is receiving appropriate treatment through the Stollery Children’s Hospital. There was no suggestion by either party that this consideration should go into the balance on parenting. [ 43 ] R, again as will be reviewed below, is facing some psychological stress.

That is relevant to the overall parenting assessment. [ 44 ] The parties did not raise cultural, linguistic, religious, or spiritual factors as having a role in the parenting assessment. The Mother has some concerns with the Father’s religiosity but not with the substance of his beliefs, his denomination, his religious practices, or his Church. [ 45 ] The children are young.

There was no evidence of any prominent or special connection to place or to people other than the parents, save for the paternal and maternal grandparents. [ 46 ] The Father claimed at numerous points that R communicated to the Father that R wanted more parenting time with the Father. I have disregarded this evidence. Besides its hearsay nature unsupported by any asserted exception to inadmissibility, both children are far too young to provide their views and preferences. If R said what he is claimed to have said, it has no weight. C. Burden of Proof 1.

Evidential Burden and the Duty of the Parties and the Court [ 47 ] A parent seeking to limit the other parent’s access has an evidential burden of showing that there is a concern or a problem connected with the other parent warranting the limitation of access. Justice L’Heureux-Dubé wrote in Young v Young at 85-86: [T]he vast majority of access orders contain no restrictions on access. Over 96 percent of divorces are now finalized with either an uncontested hearing or no court hearing at all ( Evaluation of the Divorce Act -- Phase II , supra , at p. 44).

Of the remainder that are contested, most result in orders for liberal or reasonable access without restrictions. As a practical matter then, the question of restrictions only arises where something in the evidence or the circumstances of the parties suggests a concern or a potential problem. Where those concerns emanate from the custodial parent, that parent will, of course, bear the evidentiary burden of establishing that access should be curtailed.

However, the standard that must be met is not the harm standard but evidence that restrictions are in the best interests of the child or, to put it otherwise, that unlimited access is not in the best interests of the child. [ 48 ] If this evidential burden is discharged, the Court’s duty is determine the child’s best interests based on all of the evidence. Neither parent bears a risk of loss for failure to discharge a legal burden of proof assigned to that parent.

As Justice McLachlin wrote in Gordon v Goertz at para 47 in the context of a mobility application, The parent seeking the change bears the initial burden of demonstrating a material change of circumstances. Once that burden has been discharged, the judge must embark on a fresh inquiry in light of the change and all other relevant factors to determine the best interests of the child.

There is neither need nor place to begin this inquiry with a general rule that one of the parties will be unsuccessful if he or she fails to satisfy a specified burden of proof. [ 49 ] The parties’ duty was to tender the evidence that permits my determination of the children’s best interests. In the words of Justice Yamauchi in RKC v GSA , 2012 ABQB 614 at para 230 ,

[230] The Supreme Court of Canada said that both parties should bear the evidential burden of showing where the child’s best interestslie: Gordon at para 29. This is as it should be, because the parties’ respective roles are to assist the Court in making the correct decision.One parent should not have to bear the burden of proving that unless a certain state of affairs exists, they will lose the primary residentialcare of the child. The court must start with a blank canvass and attempt to paint the picture of the child’s best interests using the facts asthe colours it adds to its palette. 2.

Fact Finding [50] While no party bears the burden of proof on the issue of the children’s best interests, those best interests must still bedetermined on the facts. The facts must be decided on the civil standard of balance of probabilities: FH v McDougall, [2008] 3 SCR 41,2008 SCC 53, Rothstein J at paras 40 and 49. [51] Fact-finding may turn on determinations of the parties’ credibility, encompassing veracity or sincerity (“credibility” properlyspeaking) and the reliability or accuracy of testimony: R v Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193, DohertyJA at 205.

In determining credibility, I have considered natural probabilities surrounding parenting and family law processes. I continueto be guided by the decision of Justice O’Halloran in Faryna v Chorny, (BC CA), [1952] 2 D.L.R. 354, 1951CarswellBC 133 (BCCA) at para 10 (CarswellBC): The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanour of the particular witness carried conviction of the truth.

The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of awitness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions. The parties invited credibility determinations by requesting the viva voce hearing. 3.

No Presumptions [52] The task of fact finding and the task of determining the best interests of the child are not aided by any presumptions. InCavanaugh v Balkaron, 2008 ABCA 423 at para 12 the Court of Appeal confirmed that “[t]he sole determinant is the best interests ofthe child:” [12] To be clear, there are no longer any presumptions or default positions that regulate decisions as to custody and access. The soledeterminant is the best interests of the child.

While other principles may be considered, particularly where both parents are equallysuitable, they must be viewed and determined from the standpoint of the best interests of the child. [53] There is no presumption in favour of the “status quo”: Botticelli v Botticelli, 2009 ABQB 556, Veit J at paras 17 – 21.

Inparticular, there is no presumption in favour of the “custodial” parent: DM v JS, 2016 ABQB 268, Ross J at para 22, affd, sub nomMacElheren v Skillings, 2016 ABCA 346; Gordon v Goertz at para 49 and see para 44: 44 Fifthly and most importantly, a presumption in favour of the custodial parent has the potential to impair the inquiry into the bestinterests of the child. This inquiry should not be undertaken with a mindset that defaults in favour of a preordained outcome absentpersuasion to the contrary. It may be that in most cases the opinion of the custodial parent will reflect the best interests of the child.

Insuch cases, the presumption might do no harm. But Parliament did not entrust the court with the best interests of most children; itentrusted the court with the best interests of the particular child whose custody arrangements fall to be determined. [54] There is no presumption in favour of equal parenting time with both parents: MacElheren v Skillings; Rensonnet v Uttl atparas 200-203(QB) and para 22 (CA). IV.

The Evidence [55] I will sort the evidence bearing on the best interests of the children into four areas – the children, the parents and theirrelationship, the Practice Note 8 (PN 8) assessment process, and additional hearing-based findings respecting the parties. A. The Children [56] R and N are attached to both parents. Both parents have had ongoing and steady relationships with the children since theirbirth. [57] Although this was not emphasized by either party, R has physical health issues. He has a heart malformation. He is under thecare of a physician with the Stollery Children’s Hospital.

At this point, it appears that his physical health is well-managed and not apressing concern. There was no suggestion that either parent was in denial concerning R’s condition or would not support appropriatemedical treatment for his condition. I did note that there was a minor dispute between the parents about whether R should play hockey. Rhas played soccer. I would only observe that R’s sports activities, an important part of his development, should be consistent with theproper management of his health condition as it evolves. [58] R’s psychological health is a greater concern.

As part of the PN 8 assessment process the parties completed the Behavior Assessment System for Children, 2nd ed (BASC-2), a parent rating scale, for each child. Both parents described R as anxious and asshowing depressive features. Both parents also rated R “as showing atypical features, sometimes staring blankly, acting confused, sayingthings that make no sense:” PN8 Report, 7. Dr. Seitz advised that, to her knowledge, R has not undergone any cognitive assessment.

[59] Ms. Lux had commented that a new edition of the BASC, BASC-3, was published before the parents completed this ratingscale. There was no evidence that the new edition would have made any difference to the findings in this case. Ms. Lux pointed out thatDr. Seitz had used a non-gendered comparison group to evaluate the parties’ responses whereas gender-specific comparators should havebeen used. Dr.

Seitz acknowledged that the use of the non-gendered comparators was “an oversight,” but still yielded useful results.Moreover, the evidence did not disclose, given the young age of the children, that gender-specific comparator groups would haveproduced significantly different outcomes. And regardless, the parents’ consistent descriptions of their observations of R were doubtlessaccurate. [60] Dr. Seitz observed that R demonstrated an unusual lack of self-confidence in his drawing abilities, a type of play observed byDr.

Seitz with both parents. [61] During a February 2017 observation, R was shown some stock photographs. “The only picture [R] did not like was of a set ofparents happily posing with their young children;” PN 8 Report, 10. [62] The parties’ descriptions of exchanges confirmed that R becomes emotionally upset in exchanges. On the evidence, the upsetoccurred when R transferred from the Father to the Mother and not when he transferred from the Mother to the Father. [63] Dr.

Seitz concluded that R “is showing signs of psychological stress and is at risk of developing significant mental healthproblems if his current situation remains unchanged:” PN 8 Report, 29. While the parties differed on what sort of “change” might becalled for, I did not understand the parties to dispute and I did not understand Ms. Lux to criticize the conclusion that R is suffering fromstress and is at psychological risk. [64] A comment on cause: The post-separation conflict between the parties and the post-separation conduct of the parties havedoubtless contributed to R’s psychological state.

But I do recognize that R grew up in a conflict-ridden household. The Father remarkedseveral times that “it was not a good marriage.” Indeed it was not. The relationship had deteriorated to a separation in 2013, before N wasborn but during R’s young life. I find that the lack of stability, calm, and affectionate behaviour between the parents adversely affectedR’s development. It is no wonder that he lacks self-confidence. His parent’s conflict left him without his own stable place, without hisown set of family certainties to build on.

The practical point is that all that R is suffering now cannot be laid solely at the feet of theparties – particularly the Father – post-separation. [65] N, in contrast to R, “appears to be healthy and developmentally on track except for somewhat delayed language production:”PN 8 Report, 28. She may be beginning to act out emotionally in exchanges but Dr. Seitz hypothesized that this may be learnedbehaviour elicited by the apparent demands of the exchange transactions. The Father was concerned that N has been unduly aggressive.This may be a function of language delay. Unable to verbalize, she acts.

Because of her young age, N was not evaluated by Dr. Seitz. B. The Parents 1. Matters not Considered (

a) Evidence Disregarded [66] I have not taken into account the correspondence of the therapist Marcus Swift attached to the Mother’s affidavit swornJanuary 14, 2016. His correspondence was unsworn and hearsay. I considered this additional opinion to be beyond the scope of thesources of evidence authorized for the viva voce hearing. The Father had no opportunity to cross-examine Mr. Swift. In any event, hisevidence was not necessary.

The Mother testified and other evidence sufficed to convey the information that might have been covered byhis correspondence. [67] I have not taken into account the affidavits of LT and SD filed by the Mother with her affidavit sworn February 18, 2016. While their evidence was sworn they were not subject to cross-examination and their evidence fell outside the scope of the sources ofevidence authorized for the viva voce hearing.

The affidavits, as well, relied on hearsay from children and amounted (expressly in at leastone case) to character evidence in inadmissible form: “It is true that when the accused wishes to adduce extrinsic evidence of goodcharacter by calling witnesses, such evidence is confined to evidence of general reputation ...:” R v McNamara, (ONCA), 1981 CarswellOnt 1243, 56 CCC (2d) 193 (Ont CA) para 310 (CarswellOnt), leave to appeal re certain issues refd [1981] 1 SCR xi,affd (SCC), [1985] 1 SCR 662. [68] Furthermore, these non-party affidavits did not comply with rule 13.19.

The affidavits were, essentially, e-mails from thedeponents with jurats attached. That form of affidavit should not be encouraged. (

b) Incidents and Allegations Disregarded [69] With ss. 16(9) in view, I have not taken into account the following allegations against the Father - • arrears of child support: The Father has recently obtained a new job. The arrears are the product of career and economic transition.The period of arrears has not been long, relatively speaking. The Father worked before and after separation.

I will return to the issue oftransition below but I do not find that the Father has been willfully ignoring his child support responsibilities or disregarding hisobligation to support his children in a manner that would adversely reflect on his parenting ability. • bad driving: The Mother claimed that the children were at risk when with the Father because of accidents he had been in andbecause he had fits of road rage. The Father rebutted the Mother’s claims with dates and explanations about the accidents and deniedmanifesting road rage. The Father’s rebuttals were not tested or undermined in cross-examination.

I am not satisfied that there was afactual basis for the Mother’s allegations.

• marijuana use during the marriage: The evidence was clear that both the Mother and the Father used marijuana during the marriage and the Mother at least condoned its use. The use of marijuana, by itself, was not shown to have any adverse effects on the Father’s parenting. • household cameras: The Mother claimed that the Father installed cameras used to watch her while she was in the matrimonial home. I find that the cameras were installed by the Father with the Mother’s knowledge and consent. The purpose of the installation was to manage a problem with bears around the matrimonial home.

It was not clear why cameras showing interior views of the home were required or what the nature of those interior views was. It was clear that, at least about 4 months after the cameras were installed, the Father could view the camera feed on his cellphone and that he made some comments to the Mother suggesting he had observed her while she was home. The number of instances of such conduct by the Father was not in evidence. I cannot conclude that he used the cameras in anything like a sustained, regular, or even repeated manner to surveil the Mother.

I cannot find that the cameras were an instrument of control by the Father. To the extent that the Father did “spy” on the Mother, even if this occurred only once or twice, what he did was wrong and violation of privacy. That conduct, though, had no proximate connection to parenting. That conduct made only a minor contribution to the dysfunction of the parties’ marriage. 2. Credibility [ 70 ] There were flaws in each party’s testimony. As Justice Rothstein indicated in FH , credibility should be assessed cumulatively and weaknesses in credibility in one area may undermine credibility in another.

Nonetheless, I have found that on some issues, the testimony of one party was convincing; on another issue, that party’s testimony was not. I have kept in mind that I may accept all, some, or none of a witness’s testimony: R v JHS , [2008] 2 SCR 152, 2008 SCC 30 at para 10 . [ 71 ] I have sought to approach each issue on the basis of all the evidence. The Mother’s credibility was impaired because, as suggested above and as will be addressed below, the Mother exaggerated or gave misleading impressions of aspects of the conduct of the Father.

Yet the credibility of the Father was even more significantly impaired, on the basis of the following considerations emerging over the course of the hearing and explored further below: • the Father lied or at least attested to a significantly misleading statement in his affidavit sworn November 30, 2016 • the Father lied to Dr.

Seitz about conduct alleged disclosures of spanking by R during the PN 8 assessment process • the Father sought to manipulate the PN 8 assessment process through the falsehoods about R and by influencing R to repeat those falsehoods • the Father’s testimony was angry and argumentative; he interrupted cross-examining counsel and had to be reminded not to answer questions with questions.

While I am aware of the dangers of relying on “demeanour” evidence, the manner in which the Father testified strongly suggested that he was more interested in defending himself and advocating a position than in providing a true and objective account of events. On the role of demeanour evidence in credibility assessments see R v Sue , 2011 BCCA 91 at paras 33 , 34, 46, and 47. 3. The Parties’ Relationship [ 72 ] The following aspects of the parties’ relationship are germane to the best interests inquiry. (

a) Period of Cohabitation (

i) Domestic Life [ 73 ] The Mother was primarily responsibility for the care of the children before separation. [ 74 ] The parties lived in a dwelling on the paternal grandparents’ lands. The paternal grandparents lived nearby and the Mother and children visited with them frequently. [ 75 ] The Father and Mother had used marijuana before the birth of the children. The Father used marijuana during the relationship and the Mother condoned this, rolling joints for him on occasion. [ 76 ] The Mother did refer to an incident in which N found a marijuana “bud” left accessible by the Father.

N put it in her mouth. [ 77 ] More concerning was that R found a vial in the Father’s workclothes that (possibly) contained cocaine. The details of this incident are muddy. It is not clear how the vial was found or why R should have been able to access the vial. It appears that the vial contained cocaine, but the source of that information was not clearly specified. The Father admitted having the vial containing cocaine in his personal possession but claimed that it was not “his.” Someone had left it in his truck.

Knowledge and control being admitted, lack of “ownership” would not have blocked a criminal conviction for possession. If the Father was telling the truth, why the vial ended up where it did was a mystery. My inference, despite the Father’s claims, is that he had the cocaine for personal use. He was at least careless in his storage of the drug given that he had a curious toddler in the house. (ii) Emotional Abuse [ 78 ] The Father emotionally abused the Mother in the relationship. Despite s. 16(9), there is no categorical basis for disregarding this evidence.

Its relevance depends on the issues and the other evidence.

[ 79 ] There was ample evidence of abuse, involving yelling, displays of anger, belittling, criticism, and unreasonable demands. The abuse was established by the Mother’s affidavits and testimony, documentary admissions by the Father, and the Father’s testimonial admissions. There was a suggestion in one of the Father’s affidavits that he was not the author of a document attributed to him. I reject that suggestion. I had regard to the diction, themes, spelling, capitalization, and sentence structure of the Father’s works. There was no basis whatsoever for wrongful attribution of a document to him.

I point out that the documentary evidence contains express admissions by the Father of conduct amounting to emotional abuse. These out-of-court admissions were admissible against him. As documentary evidence of abuse and admissions of abuse I refer particularly to the Mother’s affidavit sworn January 8, 2016, exhibit A, tab 1, pp 9, 11; tab 2, pp 12-14; tab 3, pp 16-18, 20-22, 24-26, 28, 30, 31, 33-34.

This evidence was supplemented by testimonial confirmations of yelling, swearing, ranting, exhibitions of anger, manipulation, and “blabbing and saying stupid things.” [ 80 ] Yelling occurred in front of the children. R felt the effects of the abuse. The Mother described an incident in which R comforted her after angry yelling by the Father.

The Father did state that the Mother yelled at him in front of the children too. [ 81 ] I take into account that the Mother on occasion also yelled at the Father and called the Father names, the Mother claiming that she did so out of frustration. [ 82 ] I take into account that the abuse by the Father was not physical. The Mother, in fact, pushed the Father. She did not strike him. The number of pushing incidents was not in evidence. There was no evidence of any injury to the Father.

There was no suggestion from the evidence, including my observations of the parties, that the Mother posed any form of physical threat to the Father. [ 83 ] I also take into account that toward the end of the relationship the Father was under very considerable work and financial stress. He was trying to get a new business off the ground. He was working very hard and was on the road, away from home, for considerable periods. The Mother had book-keeping and financial responsibilities for the business which she did not, on the evidence, always properly discharge.

The business failed and the Father went into bankruptcy. None of this provides an excuse but does provide an emotional setting for the Father’s conduct, at least in its later stages. (

b) Post-Relationship Civility [ 84 ] After separation, the documentary evidence disclosed what appears to have been a remarkable change in the parties’ communications and interactions. [ 85 ] A series of texts and e-mails from about the end of September 2015 to near the end of December 2015 (Exhibit A to the Father’s affidavit sworn January 15, 2016) show the parties cooperating about parenting times and making adjustments and concessions, all without a court order. [ 86 ] The evidence did not support a precise accounting of the parties’ time with the children over this period.

Generally, the children were with the Mother Monday to Friday and with the Father on weekends. The Father did not exercise access at each of his allotted times, but the Mother’s claims about the Father’s failures to exercise access were not entirely accurate. The children spent the majority of their time with the Mother and also spent significant time with the Father. [ 87 ] For these three months all appeared to be working well. [ 88 ] The Mother sought to qualify the inferences that might be drawn from this peaceful period in two ways.

First, she described this period as the “honeymoon” phase of the separation (perhaps a better image would be that of a truce following a conflict). She claimed that she was “faking” her civility during this period and so was the Father. I will set aside her speculation about the Father’s intentions. As against the Mother’s self-report, I suggest that it doesn’t matter if she was “faking.” What she and the Father were doing was working. Doing the right thing does not always mean doing what one would prefer to do. [ 89 ] Further, a good measure of what people intend is what they do.

Her actions were circumstantial evidence of her intent, of weight at least equal to her testimonial self-reports. [ 90 ] Second, the Mother attributed her conduct to her former counsel having failed to follow her instructions to obtain a court order limiting the Father’s parenting time. Inconsistently, she claimed that she had not known over this period that supervised parenting time was an option for the Father’s time.

She also referred to conversations with others who told her that she should not offer too much parenting time to the Father, because (as I understood her) it would impair either her negotiating position or her position advanced before a court. The Mother, I note, relied on Internet resources to understand her circumstances. Her use of online resources was entirely proper but did tend to undermine her claims to be under-informed. [ 91 ] In my opinion, the evidence demonstrated that there was a period of real cooperation between the parties.

That does not require a finding that the cooperation was entirely consistent with the Mother’s desires. [ 92 ] The difficulty was that the cooperation was fragile. It survived so long as events ran smoothly and each was content with the parenting arrangements. The cooperation could not and did not survive disagreement. (

c) Breakdown [ 93 ] The cooperation ended around the end of December 2015. [ 94 ] The Mother took the children to Jasper in mid-December. This was for an extended period covering some of what would have been the Father’s parenting time. The Mother did not communicate the details of the trip to the Father in advance although the Father did not object to the trip, once he was advised. The Mother kept the children longer than usual. [ 95 ] When the Father got his time with the children, he employed a self-help remedy and kept the children longer than was usual

for him. [96] The Mother was very concerned about the Father retaining the children and made a complaint to the RCMP. As there was nocourt order the police did not intervene. [97] It is worth noting that as there was no court order, neither party was in a position to dictate parenting times to the other.Parenting had depended on cooperation. [98] The Mother then retained her current counsel and took up a more aggressive position respecting the Father’s parenting time. Ido not attribute this change in approach to counsel but to the Mother’s instructions to counsel.

I can accept that those instructions werebetter aligned with the Mother’s actual views on appropriate parenting time for the Father than had been manifest during the period ofcooperation. [99] Given the fractious history of the parties, it was predictable that their ability to work out parenting without court interventionwas limited. The position of the Mother is particularly comprehensible given the abusive nature of the relationship. She had experiencewith the Father. Her fear was that bullying and unreasonableness would now recur around parenting. (

d) Post-Breakdown Interactions [100] The series of court orders followed. Neither party was reported to have violated the parenting time terms of the orders. [101] The Mother, however, claimed that the Father engaged in hostile conduct at the exchanges, otherwise sought to intimidate her,and put undue pressure on R. Dr. Seitz described the Mother’s perspective on exchanges in this way: [The Father] often gets on his knees and goes through a big goodbye routine. [The Mother] feels like he milks it, often for a good 3minutes: PN 8 Report, 21. The Mother’s testimony about exchanges aligned with Dr. Seitz’s report.

The Mother also referred to the Father having thrown R’shomework into her car and having given the finger to her and later to her brother at exchanges. During exchanges the Father and thepaternal grandmother came uncomfortably close to her and engaged in unwelcome interactions.

She has gotten into the car with thechildren and closed the doors while the Father and paternal grandmother were still speaking at her. [102] The Father did admit to having given the finger once, “a long time ago,” with the explanation that he was “emotional.” TheFather did not admit making a rude gesture to her brother. [103] The Father did not directly deny the Mother’s description of his conduct with R at exchanges. His explanation focused on R andR’s sadness at having to leave the Father. The Father stated that his bad conduct occurred before Christmas of 2016.

Since then, theparties barely talk at exchanges. [104] The Father’s claims about the Mother focused not on what the Mother did but on what she failed to do. She did not consult withhim or inform him about medical and school matters concerning R, including the timing of the last Stollery appointment and registeringR in kindergarten. She has not facilitated contact with the children by telephone or otherwise during periods when the Father does nothave parenting time. C.

The PN 8 Process [105] The PN 8 process generated a mix of personal observations, credibility findings, psychological opinions, and methodologicalarguments. I will consider the legal framework for the assessment of expert opinion evidence, non-controversial aspects of the PN 8process evidence, the PN 8 Report, and criticism of the PN 8 Report. 1. Legal Framework (

a) Admissibility [106] Justice Cromwell summarized the conditions for the admissibility of expert opinion evidence in White Burgess Langille Inmanv Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182 at para 19: [R v Mohan, (SCC), [1994] 2 SCR 9] established a basic structure for the law relating to the admissibility of expertopinion evidence. That structure has two main components.

First, there are four threshold requirements that the proponent of theevidence must establish in order for proposed expert opinion evidence to be admissible: (1) relevance; (2) necessity in assisting the trierof fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert .... [107] “Necessity” was discussed by Justice Binnie in R v J-LJ, 2000 SCC 51 , [2000] 2 SCR 600 at para 56: 56 In Mohan, Sopinka J. held that the expert evidence in question had to be more than merely helpful.

He required that the expertopinion be necessary “in the sense that it provide information, ‘which is likely to be outside the experience and knowledge of a judge orjury’, ... the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature” (p. 23). In Béland, supra, McIntyre J., speaking about the inadmissibility of a polygraph test, cited, at p. 415, Davie v.

Magistrates of Edinburgh,[1953] S.C. 34, at p. 40, on the role of expert witnesses where Lord Cooper said: Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enablethe Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. [Emphasis

added.] The purpose of expert evidence is thus to assist the trier of fact by providing special knowledge that the ordinary person would notknow. Its purpose is not to substitute the expert for the trier of fact. What is asked of the trier of fact is

an act of informed judgment, notan act of faith. [108] An additional requirement for admissibility, whether understood as an aspect of necessity, as implicit in each of the relevance,necessity, and expert qualification factors, or as an aspect of the probative value component of the probative value and prejudicial effectbalancing, is “reliability.” Justice Binnie wrote as follows in J-LJ at para 47: the criteria for reception [of expert evidence] are relevance, reliability and necessity measured against the counterweights ofconsumption of time, prejudice and confusion: R. J.

Delisle, “The Admissibility of Expert Evidence: A New Caution Based on GeneralPrinciples” (1994), 29 C.R. (4th) 267. Whether considered as an aspect of relevance or a general exclusionary rule, “[t]he reliabilityversus effect factor has special significance in assessing the admissibility of expert evidence” (Mohan, at p. 21). (

b) Weight [109] Justice Binnie stated in J-LJ at para 59 that “[b]efore any weight at all can be given to an expert’s opinion, the facts uponwhich the opinion is based must be found to exist.” To the extent that the facts supporting an opinion are not established, to that extentthe weight of the opinion is reduced. Justice Wilson wrote in R v Lavallee, (SCC), [1990] 1 SCR 852 at 896 that [i]n my view, as long as there is some admissible evidence to establish the foundation for the expert’s opinion, the trial judge cannotsubsequently instruct the jury to completely ignore the testimony.

The judge must, of course, warn the jury that the more the expertrelies on facts not proved in evidence the less weight the jury may attribute to the opinion. [110] Of course, with an eye not only to the underlying facts but to reliability, the trier of fact must decide the weight of an expertopinion, whether or not it is opposed by a contrary expert opinion. (

c) Ultimate Issue [111] The PN 8 Report recommendations deal with the very parenting issues I must decide. Providing guidance on such issues isprecisely the purpose of a PN 8 assessment. I note two aspects of the admissibility and use (if admitted) of this type of evidence. [112] First, expert evidence on an “ultimate issue” to be decided by the court may be admissible. Direct relevance to an “ultimateissue” is not a basis for exclusion. But because the evidence provides final inferences, it must not be admitted uncritically or (if admitted)accepted uncritically. Such evidence warrants “special scrutiny:” J-LJ at para 37. Justice Sopinka wrote as follows in Mohan at 25: In

summary, therefore, it appears from the foregoing that expert evidence which advances a novel scientific theory or technique issubjected to special scrutiny to determine whether it meets a basic threshold of reliability and whether it is essential in the sense that thetrier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert.

The closer the evidence approachesan opinion on an ultimate issue the stricter the application of this principle. [113] Second, despite the admitted necessity of expert psychological opinion evidence in parenting matters, determining the bestinterests of the child remains a non-delegable duty of the judge: AJU v GSU at para 177; LAU v IBU at para 187. Moreover, I have keptin mind Justice Yamauchi’s discussion in RKC v GSA at paras 212-214: [212] Because the parties have presented arguments on the relative utility of the expert’s reports in this case, it would be worthwhilefor this Court to discuss them.

In Young, L’Heureux-Dubé J. questioned the relative utility of expert reports. While this Court has itselfrelied on expert evidence in many of these types of cases, and while this Court has found those expert reports to be extremely helpful, ithas used those reports bearing in mind the following comments from Young at para 208: ... [E]xpert evidence should not be routinely required to establish the best interests of the child. In my view, it is a modern day myth thatexperts are always better placed than parents to assess the needs of the child.

Common sense requires us to acknowledge that the personinvolved in day to day care may observe changes in the behaviour, mood, attitude and development of a child that could go unnoticed byanyone else. The custodial parent normally has the best vantage point from which to assess the interests of the child, and thus will oftenprovide the most reliable and complete source of information to the judge on the needs and interests of that child. [213] She went on to say at para 210: ... [E]xpert testimony, while helpful in some and perhaps many circumstances, is often inconclusive and contradictory ...

That this shouldbe so is not surprising, since such assessments are both speculative and may be affected by the professional values and biases of theassessors themselves. [Citation omitted] [214] Thus, a court must critically evaluate the experts’ reports and, if useful, weigh them in the balance. They will not bedeterminative. See also Young at para 89 (per Cory and Iacobucci JJ.) and DMM v DPL, 1999 ABQB 37 at para 26. 2. Non-Controversial Aspects of the PN 8 Evidence [114] While Dr.

Seitz’s opinions embodied in the PN 8 Report were challenged, some aspects of the PN 8 process-related evidencewere not in issue, including properly qualified experts, relevance, and necessity (as regards assisting the trier of fact). No argument wasmade that that other non-expert opinion exclusionary rules prevented consideration of the PN 8 Report. [115] Both Dr. Seitz and Ms. Lux were accepted as qualified experts in the hearing. Dr. Seitz had been the mutual choice of the

parties to conduct the PN 8 assessment Dr. Seitz “has relevant training and experience and is an active member in one of the most well [known] and respected associations related to this area of practice, the Association of Family and Conciliation Courts, AFCC:” Critique, 12; she is currently the Chair of the AFCC Risk Management Committee. Ms. Lux was also very well qualified. She has been in practice for about 13 years, has done about 50 PN 8 Reports, and has done three or four work product reviews. [ 116 ] The PN 8 Report was relevant to parenting issues.

The Critique was relevant to assessing the reliability of the PN 8 Report. [ 117 ] The necessity for expert psychological opinion evidence provided through a PN 8 Report, as providing inferences in an area falling outside the court’s expertise, i.e., in providing inferences that a court would not likely be able to draw on its own or that might not occur to a court, is presupposed by PN 8 and was presupposed by the parties who applied for a PN 8 assessment.

That is a valid presupposition, notwithstanding that determining the best interests of the child is a non-delegable duty of the judge and judicial performance of that duty does not always require the assistance of expert evidence. [ 118 ] The Father’s fundamental concern with the PN 8 Report was that its conclusions were unreliable. The burden of the Critique was to expose that unreliability. Before turning to the criticism of the PN 8 Report, I will give an account of what it reported. The elements of the PN 8 Report were confirmed and in some cases elaborated in Dr. Seitz’s testimony. 3.

The PN 8 Report [ 119 ] The PN 8 Report set out four types of evidence – reports by Dr. Seitz of information received from “collaterals,” observations by Dr. Seitz including reports by Dr. Seitz of interviews and conversations with the parties, test results, and cumulative opinions and recommendations. (

a) Collaterals [ 120 ] Dr. Seitz received information from “collaterals” or third parties identified by the parties. Ms. Lux wrote that collecting data from “collaterals” or “sources beyond the parents themselves ... is a common practice” in PN 8 assessments: Critique, 8. [ 121 ] In this case, the only collateral reports received were from individuals, friends or relatives of the parties. What they said was hearsay. No argument was made for the substantive admissibility of the collateral information. For the most part, that information was not significant.

It was not a critical factual foundation of the PN 8 Report. [ 122 ] The paternal grandparents were cited as collaterals for the Father. Two elements of the paternal grandmother’s conversations with Dr. Seitz are noteworthy. First, During a January 4, 2017 telephone interview, [the paternal grandmother] commented immediately that she found it interesting that I was calling her at that time.

She said I must have been talking with [the Mother] and heard about a confrontation the previous weekend between [the Father and the Mother] in which [the Father] had challenged [the Mother] to stop spanking [R]: PN 8 Report, 26. The Mother denied spanking R. [ 123 ] Second, during a February 12, 2017 conversation, the paternal grandmother said that R refers to Dr.

Seitz as “that nice lady” and recently “[R] had been complaining that ‘that nice lady is taking too long’ [to finish the assessment]”: PN 8 Report, 27. [ 124 ] The comments by the paternal grandmother are not admissible as proof of the truth of their contents but because the statements were made. (

b) Personal Observations [ 125 ] Dr. Seitz made personal observations and had comments made to her during the PN 8 assessment. The accuracy of what she saw and heard was not challenged. (

i) September 27, 2016 Mother’s Home Observation [ 126 ] Nothing remarkable was observed in the September observation of the Mother and the children. The Mother and children live with the maternal grandparents. The children played and kept themselves occupied while the Mother made pizza: The children were easily redirected by their mother when necessary. They appeared relaxed and to be enjoying themselves. All interactions were appropriate. The home was well maintained and no safety concerns were identified: PN 8 Report, 9. (ii) October 23, 2016 Father’s Home Observation [ 127 ] Dr.

Seitz did an observation at the Father’s home on October 23, 2016. [ 128 ] In the Interim Opinion Dr. Seitz gave an account of what happened before she arrived. In the morning of October 23 she had received an e-mail from the Father stating that R had disclosed that the Mother spanks him and the Father had concerns about the children’s welfare while in the Mother’s care. He wondered whether Dr. Seitz “could provide information about whether the children should be returned to their mother that evening.” Later in a call to get directions to the Father’s home, Dr.

Seitz told the Father that “it seemed odd the disclosure had occurred that very day and clarified [her] role as an assessor ....” [ 129 ] R, who had seen Dr. Seitz on September 27, hid from Dr. Seitz. The Father explained that “for unknown reasons, [R] seemed to think [Dr. Seitz] was going to take him away:” PN 8 Report, 9.

[ 130 ] The Father and the children then went into the basement, leaving Dr. Seitz with the parental grandparents. They claimed that R disclosed that the Mother spanks him. “They apologized that [this disclosure] had occurred on the very day of the home observation.” The paternal grandmother also claimed that R “had talked about being spanked by his mother and her family in the past:” PN 8 Report, 9. (As for the coincidence that R’s alleged disclosure of spanking occurred on the day that Dr.

Seitz was to do the home visit with the Father, in his testimony the Father conceded that the timing was suspect, but “you can’t control everything that happens in life.”) [ 131 ] The paternal grandmother claimed that N, then age 2, who had a verbal output of about 5 words, “complains that her mother is ‘mean.’” Dr. Seitz stated that N “has extremely limited verbal abilities, and it is highly unlikely that ‘mean’ is part of her natural verbal output:” PN 8 Report, 9. [ 132 ] Dr. Seitz observed the Father playing with the children. I will return to her comments below in the discussion of Dr.

Seitz’s alleged bias. [ 133 ] Dr. Seitz interviewed R. He “spontaneously volunteered that his mother spanks him. He then immediately ran across the room – seemingly upset and tense – and jumped on and flattened an empty cardboard box:” PN 8 Report, 4. He and Dr. Seitz then chatted: “When I asked him what happens when he gets in trouble at his mom’s house, he said she puts him in time out, and he really doesn’t like that .... He said nothing about spanking:” PN 8 Report, 5. [ 134 ] In the Interim Opinion, Dr.

Seitz confirmed that she did ask R about possible abuse at the Mother’s home, “because concerns about child protection have fundamental priority in all circumstances.” Dr. Seitz determined that R and N were not in imminent danger in the Mother’s care, and so informed the Father. [ 135 ] Dr. Seitz commented in the Interim Opinion that I found the reports from [the Father] and his parents on the observation day to be highly unusual and likely manipulative. (iii) October 26 Contact by the Mother [ 136 ] On October 26, the Mother sent Dr.

Seitz an e-mail stating that “she was worried that [the Father] might have reported her to Child & Family Services.” The Mother reported that R had told her that a man was going to come and talk to him, that the man said mummy is not supposed to spank him, and that he was going to come and look at their house .... the man “was at Granny’s and he was talking to Daddy and Opa too. He is coming to look at our house ... and there is a lady coming, I have to make sure I tell her the truth so I can stay with my daddy 100%.” Dr. Seitz contacted the appropriate CFS offices and confirmed that no complaint had been made.

Dr. Seitz continued: Regarding [the Mother’s] concerns, it seems she is extremely anxious and reactive under the circumstances, although [R’s] comments are puzzling. It may be he was confusing my home visits with various things he has heard .... (iv) November 2016 Office Visits [ 137 ] When R was brought to Dr. Seitz’s office by the Father in November, 2016, he talked readily about everything except his mother. Eventually he said – when asked if he misses her – that he doesn’t miss her because she hits him with sticks. Then he changed the subject: PN 8 Report, 4. A few days later, R was brought to Dr.

Seitz’s office by his mother and grandparents: “In a conversation about his day and how he got to the office, [R] would not name his mother or grandparents, and maintained that his father had driven him:” PN 8 Report, 4. (

v) February 2017 Non-Office/Non-Home Observations [ 138 ] Dr. Seitz observed the children with the parents in a non-home, non-office environment, a hotel room. On one day the observations were of the children and the Father, on the other day the observations were of the children and the Mother. In both contexts, R displayed a lack of self-confidence in his drawing. (vi) Interviews with the Father [ 139 ] The Father said that after the separation “he said a few things he shouldn’t have said:” PN 8 Report, 12. He told R that the Mother was preventing the Father from seeing R.

R overheard the Father on the phone talking about financial concerns. The Father admitted to having a “short fuse,” but emphasized that the Mother caused him to have the short fuse: PN 8 Report, 12. The Mother manipulates him. She sets him off and when he gets rude, she reports that to the court to show that he’s a bad person: PN 8 Report, 15, 16. [ 140 ] The Father told Dr.

Seitz that • R “doesn’t think it’s a fair amount of time with [the Father], that it should be 50/50 which would be fair because it would be the same amount of time with Mommy and Daddy:” PN 8 Report, 13. • He noticed that R “gets very concerned about having to wear the right boots home, as if he’s afraid of the consequences at his mother’s house if he doesn’t:” PN 8 Report, 15. • “He believes that [R] has to dress [N] in the mornings at [the Mother’s house]. He said “...it seems like [R] is trying to parent her,

like it’s his job to take care of [her]:” ibid. • He said “[N] told me, well hasn’t told me, but demonstrated spanking and said Mommy:” ibid. • The children are fearful, scared they might do something wrong: ibid. [ 141 ] A matter related to the 50/50 comment: On February 12, 2017, the paternal grandmother said that R had been complaining that “that nice

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