SS v AS, 2020 ABQB 810

Court of Queen’s Bench of Alberta Citation: SS v AS, 2020 ABQB 810 Date: 20201223 Docket: 4801 169820 Registry: Calgary Between: SS also known as SK Plaintiff - and - AS Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Bryan E. Mahoney _______________________________________________________ Introduction and Issues [ 1 ] This is a high conflict parenting case involving an 8-year-old female child (“P”). Separation and divorce are very hard on children.

It is also hard on their parents as they struggle in protracted legal conflict over their parenting relationship. These parties have been unable to move beyond the difficult transition of separation and divorce. Court proceedings were first launched by A.S. (the “Father”) in February 2015. There is a two-inch-thick black binder full of applications and interlocutory court orders by several different judges leading up to the matter finally coming to trial in March 2020.

On February 24, 2020, Associate Chief Justice Rooke made a procedural order setting out in some detail the arrangement for the hearing of the three-week March trial. [ 2 ] The main issue is parenting. Each parent seeks primary care of P with limited parenting time to the other. The other issue is child support. [ 3 ] The trial commenced on March 2, 2020 and continued until March 16, 2020 when it was halted due to the Covid pandemic lock down of the Court. The trial resumed on October 26 and was completed on October 30, 2020. [ 4 ] There is an Agreed Statement of Facts marked as Exhibit 1.

It is about 2 pages in length and sets out the chronology of court orders and other interlocutory steps leading up to the trial. Background [ 5 ] Both parties were born in India and grew up in Hindu homes. The Father moved to Canada in 2002. The parties met in

March or April 2011. Both had been previously married and divorced. Early on, the Father was in Canada and S.K. (the “Mother”) was in India. They had a long-distance relationship for two months and had an unofficial marriage ceremony while visiting the Mother’s parents in New Jersey in July 2011. They officially wed on July 22, 2011 in Calgary. P was born December 7, 2012. The Mother obtained permanent resident status in January 2013. The parties separated initially in February 2015.

The Father is employed in IT at an education institution and the Mother is currently unemployed but has worked in customer service communications. [ 6 ] On December 12, 2016, Justice C. Anderson, the case management judge, ordered a Practice Note 8 full Bilateral Custody Assessment which was carried out by psychologist Dr. Susan Clark. Dr. Clark's 49-page report is dated February 5, 2018. Dr. Clark testified at the trial on March 12, 2020. On October 24, 2019, upon the Mother’s application, Justice Woolley permitted a Work Product Critique of Dr. Clark's report to be prepared by Dr. Jon Amundson. Dr.

Amundson also testified at the trial. Dr. Clark wrote a short rebuttal report. [ 7 ] There have been several parenting orders. The current parenting arrangement, per the Order of Justice Anderson dated June 18, 2018 and filed July 30, 2018, is as follows:

a) The Father shall have primary care and parenting time with [P], other than the times [P] is with [the Mother] for her parenting time.

b) The [Mother] shall have parenting time with [P] on alternating weekends commencing Friday, June 29, 2018 by the [Mother] picking up [P] at Active Learning Program Ltd…between 4:00 P.M. and 6:00 P.M. with the [Mother] returning [P] to the same location on July 2, 2018 at 7:30 A.M. The [Mother’s] parenting shall continue each alternating weekend thereafter.

c) All other paragraphs of the December 9, 2016 Parenting Order of Justice Anderson shall remain in force. [ 8 ] Pursuant to that same Order, the Mother’s Application to set aside portions of Dr. Clark’s report was adjourned sine die . Dr. Clark's Report and Testimony [ 9 ] Where costs permit, judges often order bilateral parenting assessments when faced with a high conflict case. As noted above, Dr.

Clark prepared a Bilateral Parenting Assessment pursuant to a consent order under Practice Note 8 setting out in detail the personal history and past parenting regime. [ 10 ] Objective psychological and personality tests were administered to the parents, both of whom were clinically interviewed by Dr. Clark. [ 11 ] Dr. Clark observed P with the parents in both households and when she came to the office with either parent on four separate occasions. [ 12 ] The parents requested and submitted a comprehensive "parenting plan". They had several months to consider and complete their plan. The parents described to Dr.

Clark their parenting styles and child rearing practices. Each parent was afforded the opportunity to review the other's parenting plan and provide their comments about its feasibility. [ 13 ] The parents were apprised of what documents had been received and had ample opportunity to review other relevant materials and to send in more documents. Dr.

Clark reports that the parents, to the best of their abilities, did as requested. [ 14 ] The parents were asked to submit at least three parenting references from individuals who could attest to their overall parenting ability and capacity, preferably not solely from family members. These references were reviewed and considered. [ 15 ] Both parties reported to be in good physical health and physically able to parent P. The Mother provided documentation specific to her mental health and the reported opinions of various medical professionals. [ 16 ] Dr.

Clark had access to the history of the parents' medical records and involvement with mental health professionals. In her report, she summarizes her general impressions from these records and contact with these persons. [ 17 ] Dr. Clark also summarizes the extensive information she obtained from Child and Family Services (“CFS”) child protection file and the Calgary Police Service (“CPS”) reports. [ 18 ] Dr. Clark detailed in her report each party’s expressed concerns about the other's parenting. Dr.

Clark also described comments from her telephone interviews with various childcare professionals involved in P's care between 2015 and the date of the report. Despite the Mother's claim, Dr. Clark found no evidence of parental alienation by the Father. Dr. Clark's

Summary and Recommendations [ 19 ] In her "Summary" at page 38, Dr. Clark states that the Mother's "low frustration tolerance and tendency to externalize blame (to include authority figures, her own legal counsel, and other professionals that are working hard to support

P) are getting in the way of resolving conflict. The Mother's temperament and abrasive style of interacting with several professionals has alienated herself in the process and resulted in more protracted difficulties as it relates to sharing information and parenting time.” [ 20 ] At page 40, Dr. Clark writes: At this point, it would be critical for the mother to understand and experience the feelings of others and to recognize the impact of her behavior on others. As indicated in the psychological testing, numerous clinical interviews, and the various sources of information

gathered in the assessment process, there are long standing traits in the mother's personality which continue to frustrate her parentingcapacity. She continues to avoid negative self-disclosure and to avoid assuming responsibility for her role in all that P has been through. [21] On the topic of externalization of blame as observed by heath professionals and other people in the Mother's life, Dr. Clarkstates that insights appear lacking and are void of empathy for P and more focused on her subjective experience of being wronged by thesystem and others in her life. [22] Dr.

Clark indicates that P is caught in the middle of continual parental conflict and is at increased risk of severe adjustmentdifficulties if this continues. Dr. Clark found that P is more attuned with the Father and identifies him as her primary source of comfort,security and safety. [23] Dr. Clark concludes that: With continued parental conflict, P may begin to doubt her own competency and distrust the world. Emotional disorganization andconfusion may set in. Young children experience primitive kinds of distress.

They lose the confidence that they can control their world.This will have long term ramifications for P into adult life. [24] Dr. Clark's recommendations are set out in detail in the report at pages 42 - 48. Her parenting regime recommendations can besummarized as follows:

a) the Father parent on a more full-time basis. He would parent P 9 consecutive days and the Mother 5 consecutive days. The Mother'sparenting would be from afterschool on a Thursday to Tuesday morning;

b) other holidays are addressed and fairly divided up between the parents;

c) also addressed are extra-curricular activities, notice, emergencies, other caregivers, missed parenting, respectful communications,healthcare and travel. [25] I find that both Dr. Clark's report and her testimony provided a thorough assessment inquiry, sound observations andinformation communicated with clarity. I find that Dr. Clark systematically endeavored to authenticate each parent’s concerns byexamining official records, third party information or corroboration offered by the parents. The report synthesizes and summarizes thedata at a level that a lay person can understand.

Her recommendations address the central question "What would be in the best interestsof this child?" Dr. Amundson Work Product Critique [26] Instead of seeking a second custody assessment, a party who believes the original bilateral assessment is flawed can retainanother psychologist to conduct a critique or review thereof. Dr. Amundson did so in his work product critique dated January 23, 2020.He writes that the purpose of his report is to assist the trier of fact to appreciate the "purpose/intent" of the psychological evaluation andto enquire into the evaluation's validity, reliability, and utility. Unlike Dr.

Clark, Dr. Amundson in fulfilling this role does not meet theparties or the child, contact collateral persons or form an independent set of recommendations. Work product critiques can serve apurpose because bilateral assessment evaluators are sometimes wrong. [27] I find that Dr. Amundson's report mainly addresses two contrasting formats that may be employed by an evaluator such as Dr.Clark: the investigative/evidentiary format ("IE") and the bio/psycho/social format ("BPS"). [28] The IE format, according to Dr. Amundsen, seeks to "build a case".

He writes that this format typically involves the thingsfound in a most bilateral assessments: parenting plans, extraneous document review, quasi-examinations, evidentiary review, pursuit ofcollaterals, corroboration, home visits, narrative exposition and the import of fact evidence. [29] The BPS format also seeks to gather information from a variety of sources, not as evidence for its own sake but in service ofspecific and limited questions the psychologist is empowered to answer. Dr. Amundson in his report and in his testimony clearly prefersthe BPS format. He is critical of Dr.

Clark's IE "judgment like" approach. [30] The problem with Dr. Amundson's evidence is that, while it may advance the discussion of the pros and cons of the IE/BPSformats, it says little about what is in P's best interests. It cannot be said that Dr. Amundson's report is essential in the sense that the trierof fact will be unable to come to a satisfactory conclusion without it: see R v Mohan, (SCC), [1994] 2 SCR 9. [31] I find that Dr. Clark identified and attempted to answer the main legal issue, namely what is in the best interests of P.

Shestayed within her court-ordered appointment in gathering the necessary data to base her conclusions and recommendations. She usedgenerally accepted guidelines for a bilateral assessment as set out by her professional governing body. Dr. Amundson does not suggestthat Dr. Clark failed to interpret the psychological testing data accurately or that she failed to interview the parents and the child or thatshe did not sufficiently pursue collateral interviews from family, child protection agencies, police and child caregivers. I find that Dr.Clark sought information on key issues and reviewed appropriate records.

Despite strenuous cross-examination, Dr. Clark gave noindication of bias or pre-conceived preference. In short, I find that Dr. Clark, in this complex, high conflict parenting case, used asystematic approach following existing bilateral assessment models. Calgary Police Service (“CPS") [32] There is a history of CPS involvement with this family. On March 5 or 6, 2014, the Mother called the police, but when theyattended, she could not remember why she had called them. She had been walking up and down the street at night looking to find

someone who would let her use a telephone while P was at home alone sleeping. Concern for P led to CFS child welfare workers being contacted. [ 33 ] In April 2014, the Father called police because, in his experience, past domestic disputes had ended badly. The police found the Father calm and suggested he leave the home with P. The police determined that there was insufficient evidence of the Mother's allegations. [ 34 ] In May 2014, the Father again contacted police after another domestic altercation outside of the residence. The police referred the matter to the Domestic Conflict Unit.

Because the Mother was so distressed, she willingly accompanied the police to the South Health Campus pursuant to the Mental Health Act under a Form 10. [ 35 ] In October 2014, the Mother again called police, alleging the Father had threatened suicide. Upon arrival, the police determined there was no suicide attempt. The police classified this event as another domestic disturbance that was resolved by the Father and P leaving the home for one night. [ 36 ] In March 2015, the Mother contacted police, alleging that the Father had threatened her and her family.

The police investigated and found the allegations unfounded. [ 37 ] In May 2015, the police attended the residence because the Father alleged that the Mother would not exchange P according to the court order. The Father was also concerned because P appeared to have a fever. He produced a copy of the court order and the police agreed he could accompany EMS and P to the hospital. [ 38 ] In September 2015, the police rejected the Mother's complaint that the Father was harassing her by driving past her home.

The police accepted the Father's explanation that he lives nearby and takes the same route to work each working day. [ 39 ] The Mother's further allegation in April 2017 that the Father aggressively drove his vehicle near her vehicle was determined to be unfounded. The police warned the Mother about making unfounded complaints. [ 40 ] When questioned about these many police encounters, the Mother told Dr. Clark that the police got it all wrong and that they did not help her. Child and Family Services ("CFS") [ 41 ] Dr.

Clark obtained the vetted CFS child protection file for the purpose of providing clarity regarding parenting concerns. In order to verify the accuracy of the information, the parents were questioned about these concerns. [ 42 ] In December 2012, right after P’s birth, CFS conducted an unannounced home visit because of concerns raised by the Mother's aggressive behavior at the hospital prior to the birth.

After the birth, the Mother was reported to be pleasant and, after the CFS home visit, no child protection concerns were found. [ 43 ] After the CPS contact on March 5 or 6, 2014, when the Mother had been walking up and down the street at night while P was at home sleeping, CFS met with the parents to discuss their concerns. After they discussed strategies to avoid conflict and the Mother agreed to address her issues, the CFS file was closed at the Safety Assessment Phase.

CFS had no concerns about the Father's ability to parent and protect P. [ 44 ] CFS Social Worker Susan Lyonnaise testified and, as a collateral contact, met with Dr. Clark. In February 2015, Ms. Lyonnaise was assigned to investigate the child protection concerns and devise a safety plan to meet P’s needs. Ms. Lyonnaise related to Dr. Clark the history of her contacts with the parents. She stated to Dr. Clark and confirmed in her testimony that she was able to safety plan only with the Father and that she relied on him.

Had this not been the case, she said P would have been apprehended. [ 45 ] In February 2015, CFS developed two concerns: the Mother's mental health and her potential to act irrationally and the Father’s inability to protect P. For example, the Father consented to the Mother travelling to India with P without CFS clearance. While in India, P became quite ill with a chest infection and dehydration and the Mother made poor decisions regarding her health. The Father advised CFS that he was applying for a primary care order. [ 46 ] In April 2017, the Mother alleged sexual abuse by P’s paternal uncle.

The Father had moved in with this uncle's family in 2015. P herself had not made a disclosure of sexual abuse. The allegation was referred to the Child Abuse Service and found to be unsubstantiated. CFS Social Worker Nilesh Prasad testified that when he met with the Mother, she seemed displeased that the allegations were unsubstantiated. Mr. Prasad testified that this was an unusual reaction since, in his experience, most parents are relieved to know the abuse was not substantiated and the child was not harmed. Mr. Prasad testified that he thought the allegation was malicious.

Once this investigation concluded, CFS classified the file as a high conflict custody case. The CPS also closed its file as having insufficient grounds to warrant further investigation. Daycare Providers [ 47 ] Various child care providers provided affidavits, were interviewed by Dr. Clark and, pursuant to the Rooke ACJ process order, were produced at trial for cross-examination. I found these witnesses particularly relevant since their training and occupation revolves around caring for children, including P. Ruth Laeda

[ 48 ] Ms. Ruth Laeda, a home care provider and licensed childcare worker with 15 years experience, provided testimony and affidavit evidence and was interviewed by Dr. Clark. Ms. Laeda provided childcare to P from February to April 2016. In her affidavit, she related an incident at P’s daycare in May 2016 where the Mother was aggressive and yelled at P in the presence of other staff and children, which made Ms. Laeda uncomfortable. Ms. Laeda states that the Mother had pressured and later harassed her to write a letter to the Court about the Mother's "good behavior". Ms.

Laeda told the Mother that she would not "fabricate" such a letter. She said there were other times in 2016 where the Mother was rude and uncooperative. She had no issues in her interactions with the Father. Heather McGregor [ 49 ] Ms. McGregor, the area Manager of P’s daycare, provided an affidavit dated February 26, 2020 attaching several incident reports concerning negative staff interactions with the Mother. Ms. McGregor describes boundary violations and intimidation that the teachers were feeling directly from the Mother. Events reached the point where Ms.

McGregor notified the Mother that, for the safety and the well-being of the children, the Mother could no longer enter the daycare building. Elaine Marois-McKenzie [ 50 ] Elaine Marois-McKenzie, a childcare educator, swore an affidavit on February 26, 2020 and testified at the trial. She had P under her care from September 2017 to July 2018. She stated that the Mother would intimidate her by raising her voice and that it was a constant challenge dealing with her. She observed that P on most occasions was not happy to go with the Mother and would cling to Ms. Marois-McKenzie when it was time to go. Ms.

Marois-McKenzie was also confronted by the Mother about her conversations with Dr. Clark. The Mother wanted her to retract her statements. Her dealings with the Father were pleasant. Eileen Ruth Carter [ 51 ] Eileen Carter, a classroom teacher with 40 years' experience, swore an affidavit on February 25, 2020 and testified at the trial. Ms. Carter had the care of P during the school term commencing September 2017 and at summer camp in July 2018 at the learning centre. Ms. Carter says that the Mother was hostile and belligerent. The Mother raised her voice a number of times and challenged Ms.

Carter regarding conversations she had with Dr. Clark. She stated that the Mother approached the learning centre owners to have Ms. Carter retract her statements to Dr. Clark. Ms. Carter stated that she has never seen a little child so terrified when going to her Mother. Ms. Carter describes in her affidavit and confirmed in her testimony other concerns she had with the Mother's care of P. She said the Father was pleasant and easy to deal with. Ms. Carter told Dr. Clark that the Mother says negative things about the Father. The Father says favourable things about the Mother.

Lydia Meftali [ 52 ] Lydia Meftali swore an affidavit on March 15, 2020 and testified at this trial. At the time of these events, she was an assistant daycare teacher at the learning centre and provided care for P. Ms. Meftali would deal with the Mother at pick up time because Ms. Carter and Ms. Marois-McKenzie preferred not to do so. Unlike P’s other childcare providers, Ms. Meftali was more supportive of the Mother in such things as helping the children with face painting and providing healthy lunches. Ms. Meftali stated that the Mother complained to the owners of the daycare about how Ms. Carter and Ms.

Marois-McKenzie treated her. Parties’ Evidence and Credibility [ 53 ] In considering the parties’ evidence, I must recognize the context; both parties have a high stake in a ruling as to the future parenting regime for P. My comments on the credibility of the parties does not take away from an overall finding that both parents love P and she loves them. Mother [ 54 ] The Mother testifies that the Father, as the primary caregiver, has abused his role by turning P and the day care teachers against her. He has unreasonably denied her requests for more time with P.

He terminated all communication with her except through lawyers. She states that giving her primary care would limit the Father's time with P, thereby reducing the amount of time he would have to say negative things to P and others about the Mother. She says she would be more flexible about parenting time for the Father. [ 55 ] The Mother testified to her version of the many events described above involving the daycare, the CPS, CFS, Dr. Clark and other health professionals.

She claims the Father just wants revenge and says that, in addition to poisoning others against her, he has used allegations of her mental health problems as a litigation tactic to gain a strategic advantage, not out of any real concern regarding P’s best interests. This, I find, is not supported by the contrary evidence of Dr. Clark, CFS workers and records, CPS police incident reports, daycare teachers and other health and hospital records. [ 56 ] The Mother rejects the findings and recommendations in Dr. Clark's report, which she submits was a waste of time and money.

She says she never wanted a bilateral assessment and that her then-lawyer agreed to the consent order without her approval. In any case, the Mother states Dr. Clark's recommendations are outdated and should not be followed. [ 57 ] The credibility of the Mother’s evidence is diminished by inconsistencies and weaknesses when compared with reliable third- party testimony and documentary records. Dr. Clark reported that the Mother accused CFS of having their own plan to break up her family and that CFS and the CPS got it all wrong. The Mother said that the daycare staff wrote false statements against her.

In argument at trial, counsel for the Mother submitted that some of the daycare workers may have committed perjury. I unhesitatingly reject that

submission. [ 58 ] Dr. Clark noted that results of the psychosocial testing of the Mother could not be interpreted because the Mother responded to questionnaires in a defensive, biased manner that Dr. Clark called impression management. The Mother's defensiveness and one-sided manner also manifested in her Court testimony. On both direct and cross-examination, the Mother would fail to answer simple yes or no questions, choosing instead to expound, become impatient and refuse to concede obvious points.

Consequently, where her evidence was contradicted by other evidence such as CFS, CPS, hospital and doctor's medical records, the daycare witnesses and the Father's evidence, I conclude her evidence was unreliable. Father [ 59 ] The Father testified to the Mother's long history with CFS/child protection, which started the day P was born. He is concerned that the Mother historically has shown that she puts herself before P and that the Mother’s constant false allegations are harming P. The Mother has shown a strong tendency to use P deliberately to make allegations against the Father and his support system.

He states that significant negative allegations against him were unfounded and irrational and that they are becoming more serious in nature. He says that the long history of the Mother's manipulation and acting as a victim, has influenced P negatively. [ 60 ] The Father states that the Mother is very confrontational and unpredictable. She has shown bad behaviour in front of many witnesses including child educators, hospital staff, CFS child welfare workers and others who only have P's welfare in mind.

He states that the Mother will refute this bad behavior by attacking the other person directly instead of admitting and repairing the issue. She does not know how to de-escalate an issue. She will go to great lengths to prove everyone else wrong even when the other person's action benefits P. The Father also gave his recall of the events with the daycare, the CPS and CFS referred to above. [ 61 ] I found the Father's testimony was generally credible and consistent with the affidavit and oral testimony of witnesses, third party records and the report of Dr. Clark.

He was willing to admit fallibility and uncertainty and withstood a systematic, probing cross- examination. The Voice of the Child [ 62 ] P was seen by Dr. Clark on six occasions. There were four in-office occasions, two with each parent. Dr. Clark writes that P was able to provide some feedback regarding her thoughts, feelings, and experiences over the course of these meetings. [ 63 ] Dr. Clark quotes P in her report: [She] "only has fun play time with Papa... Papa will play with me and cuddle me and takes me lots of places... Mama only takes me to Temple or to see her friends... I like to dance with Papa...

If I had to go on a trip, I would only like to go with Papa... Mama says mean things about Papa and I don't like that... Mama puts Tilaka (clay marking on forehead) and I don't like it because it itches me... Mama yells at my daycare... I don't know why she gets so mad... Mama is grumpy... Papa is happy." [ 64 ] P stated that "Papa" cuddles her, takes care of her and makes her feel better. [ 65 ] Dr. Clark quotes P as saying: I only miss my Papa and my Mama says she doesn't know his phone number, so I can't call him when I am sad... Papa makes the best food...

I don't like Mama's house because Mama is always on her phone reading all the time and she doesn't play with me like Papa do. [ 66 ] Both parents said that P wanted to speak to the judge. Further, Dr. Clark's report was two years old at the time of trial and she testified that the developmental changes between ages 5 and 7 are significant. She said that she would be reluctant to make recommendations at the time of the trial because she has not seen P for two years and that an update would be helpful. [ 67 ] An update by Dr.

Clark was not feasible without incurring substantial delay and costs that neither party can afford. At the October part of the trial, I permitted counsel to lead evidence from their clients as to an update between the March 2020 Covid adjournment and the October 2020 continuation. [ 68 ] Given this situation, I decided to have P brought to the courtroom for a brief interview with me. To make things as comfortable as possible for P, I asked the parties and counsel to leave the courtroom so that only P, the clerk and I were present. Of course, the proceedings were recorded.

I sat at a counsel table with P a little more than six feet across from me. I explained to her that her parents cared very much for her and that I would be deciding on the future parenting arrangements. I emphasized that this was an important decision that directly affected her, so I thought it best to hear from her. P told me she was comfortable speaking with me and was not nervous. The session lasted about 15 – 20 minutes. As I told counsel and the parties when they returned to the courtroom, P’s views were consistent with what she told Dr. Clark.

The Law [ 69 ] In making my decision on parenting it is well established that P’s needs and well-being are paramount. I recognize that P will benefit from a meaningful relationship with both parents so long as it is safe and positive. [ 70 ] Section 16(10) of the Divorce Act , known as the friendly parent rule, sets out the principle that "a child… should have as much contact with each spouse as is consistent with the best interests of the child," and requires that the court consider the willingness of each parent to facilitate contact between the child and the other parent.

The provision reflects a general assumption that the needs and

interests of a child following separation and divorce are best met when the child maintains significant contact with both parents. [71] The Supreme Court of Canada has held, however, that maximum contact is not an unbridled objective and must be curtailedwherever the welfare of the child requires it.

Also, when the relationship with the non-custodial parent conflicts with the best interests ofthe child, the promotion of the child's best interests must take priority over the desires and interests of the parent: Young v Young, (SCC), [1993] 4 SCR 3. [72] This decision is not about which parent “won or lost” but rather what this Court finds to be in P’s best interests. Here, P’s bestinterests are met differently by each parent. This decision is intended to provide P with more certainty at this time when there has been somuch upheaval and stress in her young life. Below is my ruling on parenting.

Ruling on parenting Custody 1. The parties to have Joint Custody of the child P. 2. Each parent shall be entitled to have input in all major decisions affecting P, including but not limited to: educational, medical,health and religious decisions. 3. In the event that the parents reach an impasse on a major decision, the Father shall have the final say. 4. Each parent shall be entitled to access all professional and other records directly through third parties who provide care or servicesto P. 5.

For the sake of treatment consistency and except for medical emergency, P shall be referred to only one family medical Doctor whois currently Dr. S. Rehan. 6. In the case of emergency medical treatment, the parent caring for P at that time shall make the necessary decisions includingemergency surgery or urgent treatment and shall contact the other parent immediately. 7. The parents shall exchange all reasonable information, without harassment or disrespect concerning the health, education andwelfare of P within a timely manner via www.ourfamiIywizard.com or similar website. 8.

The Mother shall be free to observe, volunteer at or participate in any school or extracurricular activities P is engaged in, as per theschool/agency policies. 9. The parents shall share with one another in a timely manner, details of any activities in which they intend to enroll P, includingschedule and location of the activities if they are during the other’s parenting time. Extracurricular activities involving weekendcommitments shall be mutually agreeable to maintain the regular

schedule during the other party’s parenting days. 10. There are no restrictions to P seeing her parents at any extracurricular or public events. P will return with the parent who has herunder their care at that time. Each parent can attend such activities on condition they act civilly to each other. Parenting - Regular

Schedule 11. The Father shall continue to be P’s primary caregiver. P shall reside in the care of the Father at all times, except when she is in thecare of the Mother. 12. P shall reside with the Father for all weekdays Monday to Thursday and alternating weekends. 13. P shall be picked up and reside with the Mother on alternating weekends from after school on Thursday to before school drop off onMonday morning, extended one day if a holiday long weekend.

If it is not a school day, subject to the holiday parenting schedule, theMother's pick-up time will be Thursday at 5:00 p.m. from the person or daycare agency providing childcare, and she shall drop P off by7:30 a.m. Monday to the person or daycare agency providing childcare. The same pick-up and drop-off times shall be followed for allother parenting exchanges. 14. Weekday exchanges, as set out above in sub-paragraph 13, shall occur at the Calgary Kids Montessori Academy or such otherschool or daycare as applicable. 15.

The daycare/school closure exchanges shall take place at the times stated above in sub-paragraph 13 at a safe child exchangelocation as agreed between the parties, or if no agreement, as set by the Father. 16. The Mother shall work with a behavioral therapist, and a copy of Dr. Clark's Bilateral Assessment report shall be provided to thattherapist. The Mother shall provide to counsel for the Father within 30 days of the date of this judgment, proof of registration in abehavioral therapy program.

The Mother shall follow all recommendations made during the therapeutic process including when therapyis no longer recommended by the therapist. Failure to engage with a behavioral therapist is a material change for a review of thisparenting order. Parenting - Holiday

Schedule

17. Commencing October 2021, the Mother shall have parenting time with P for Thanksgiving weekend and alternating each odd numbered year thereafter. The Father shall have parenting time with P for the 2022 Thanksgiving weekend and alternating each even numbered year thereafter. 18. Commencing December 2020, for Christmas, the Father shall have parenting time with P from after the school day ends for the Christmas break to 12:00 p.m. (noon) on December 26th, 2020.

The Mother shall have parenting time with P commencing 12:00 p.m. (noon) December 26th, 2020, for the same number of days that P was in the care of the Father. The remainder of the Christmas holidays shall continue according to the regular schedule. This

schedule shall alternate each subsequent year thereafter. The parenting exchanges shall occur as specified above. 19. The Father shall have parenting time with P over the Teachers convention/Family Day Weekend each year. Transition to occur upon return to school followed by the regular parenting schedule. 20. The Mother shall have parenting time with P over the Easter Break annually, the amount shall be the same number of days P spent with the Father over the Family Day Weekend. Transition to occur upon return to school followed by the regular parenting schedule. 21.

Neither party shall travel with P four days prior to the commencement of her schooling in September or January. 22. Both parties shall be listed as an emergency contact with P's school in case of illness or injury. The parent caring for P at that time shall be contacted first, and is responsible for caring for P should she be required to leave during school hours. The other parent shall be notified of the school absence due to illness/injury and the course of treatment required. 23.

In the event that the Before and After School program which P attends has a closure, the on-duty parent shall be responsible for procuring child care for that period, if they are unable to take time off from work. 24. In the case that an unexpected or unavoidable emergency occurs, the parents shall give each other as much notice as possible. If the parties are unable to agree on a requested change to the schedule, P’s health permitting, the regular parenting

schedule shall be followed. 25. If an emergency results in the need for child care, the parent who has P in their care at that time shall make the child care arrangements and pay for the cost of the child care, unless otherwise agreed to by the parties. 26. If the party with scheduled parenting time with P is unable to parent during their parenting time for a period of more than 24 consecutive hours, the other party has the right of first refusal for that parent to provide childcare for P. 27. Missed parenting time shall not be made up at a later time unless agreed to by the parties. 28.

The parties shall treat each other with dignity and respect in the presence of P and shall not: a. Ask P about the other parent; b. Ask P to give messages to the other parent; c. Make disrespectful negative statements about the other parent in the presence of P; d. Allow other people to make disrespectful or negative statements about the other parent in the presence of P. 29. The parents shall keep conversations short and calm during exchanges of P outside of the daycare hours. 30. The parents at this time shall reserve all communication to electronic means, with respect to parenting.

They may utilize products such as www.ourfamilywizard.com to allow timely information and keep track of all matters, at their own respective expense. 31. The parties shall not interfere with communication between P and the other party by actions such as refusing the answer a phone or refusing to allow P or others to answer, recording phone conversations between the other parent and P, turning off the phone or using a call blocking mechanism, or otherwise denying the other parent telephone contact with P during predetermined call times. 32.

Both parties shall actively promote and respect the significant relationships in P's social network. Neither party shall undermine the relationships P has with family members of the other parent. Travel Mobility 33. P's passport shall be in the care of the Father. 34. Neither parent shall permanently move or relocate with P outside of Calgary without the other parent's written consent or further court order. 35. Both parties shall have a copy of P's Alberta Health Care card, any other health coverage and immunization records. 36. Neither party shall restrict travel with P during their respective parenting time.

With respect to travel outside Canada, the travelling parent shall, at least 60 days before departure date, provide the other with a complete written itinerary including telephone contact number, information as to accommodations, flight plans, and departure and return dates. 37. The Mother shall not travel with the Child outside of Canada without the written consent of the Father or court order. 38. The requirement of any consent by the Mother for the Father to travel with P either within or outside Canada is dispensed with.

39. The travelling party shall assist P in contacting the non-travelling parent in a reasonably frequent manner while away, such contact to take place once every three days at minimum. Child Support [ 73 ] A major point of contention is the application of s. 9 of the Federal Child Support Guidelines to the parties shared parenting temporary arrangement that existed by court order from July 29, 2016 to June 18, 2018 when it ended by court order. An interim child support order made by Justice Anderson is stated to be without prejudice to what might be decided at trial.

For the purposes of calculating s. 9 child support both parties submitted calculations regarding the amount of parenting time each had during the shared parenting period. They also submitted child support calculations owing during the same period. [ 74 ] During the shared parenting time, a 60-40% parenting per centage time existed. Minutely examining the party's calculations as to the per centage of parenting time is not always necessary and not necessary in this case. [ 75 ] With shared custody, the rules for calculating child support are a bit different.

The court has to consider the amount in the tables that each parent would pay for the child if the other parent had sole custody. But the court also has to consider that child support awards should reflect the realities of the parties and the actual costs of raising P. The focus is on the amount of resources these parents had available for the support of P. [ 76 ] The evidence reveals that there has been minimal financial contribution by the Mother since the separation. The lion's share of the costs of supporting the child have been borne by the Father.

Justice Woolley recognized this in her order of October 24, 2018 quoted above. Justice Anderson did as well in her order of June 17, 2019, noting in the transcript that the Mother had not paid child support since November 2018, based on an income of $20,000, when in fact the Mother's income was $31,000.

Ruling on Child Support Retroactive Child Support [ 77 ] Weighing all the factors in s. 9 of the Guidelines the calculations as to past amount owing, in reviewing the Mother's calculations in exhibit 67 and the Father's calculations in exhibit 75, I find that the without prejudice order of Justice Anderson of November 13, 2018 ought to apply as to the amounts owing as of that date. I also accept the Father's submission as to the total amount of child support owing currently owing in exhibit 75.

I set the child support owed by the Mother to the Father calculated as follows: Total child support owed by the Mother to the Father (2015-2020) $26,063.00 Less support owed by Father to Mother - see order of Nov. 13/18 $11,391.17 Underpayment of child support owing by Mother to Father (total) $14,671.83 [ 78 ] In denying the Mother’s retroactive child support claim according to her calculations in exhibit 67, I also find that if she was entitled to the amount claimed it would only be fair to set off that amount to compensate the Father for what he has had to pay for s. 7 extraordinary expenses for P’s after school care, school fees and health care needs.

Ongoing Child Support [ 79 ] I impute an income to the Mother at $26,000 per year. For the similar reasons stated by Justice Woolley and referred to earlier, the Mother is well-educated, has a solid C.V, and has proven her ability to earn income in Canada. At the trial, she presents as an intelligent and resourceful person. The amount imputed recognizes the reality of the current economy and the evidence of the Mother’s actual income in 2018, 2019 and 2020.

The Father's annual income is set at $123,616. [ 80 ] The s. 3 table amount monthly payments based on an income of $26,000 per year will begin as of 1 January, 2021. [ 81 ] The s. 7 expenses as of 1 January, 2021 will be apportioned according to the Guidelines. Those s. 7 expense are currently child care, Calgary Board of Education school expenses, medical and dental insurance premiums, medical and dental costs not covered by an employer plan.

Stay of Enforcement [ 82 ] The Mother, post-trial, has asked for a Stay of Enforcement directed to the Maintenance Enforcement Program of Alberta for the enforcement of ongoing child support payments and arrears. Pending the submission of child support evidence to be proffered at the trial, I had granted an extension of the Stay order until the end of the trial scheduled for March 27, 2020. When the trial could not finish by March 27, 2020 because it was caught in the court's Covid pandemic shut down, I extended the Stay order until December 30, 2020.

The Mother seeks a further one-year extension until December 30, 2021. [ 83 ] The Stay of Enforcement application is denied. [ 84 ] A Stay of Enforcement is a discretionary order granted under certain guidelines. The court must be satisfied that the debtor has a valid reason for not paying arrears at the time the stay order will be in effect.

Anderson v Laboucan 2017 ABQB 642 paras 75-76 . [ 85 ] The Father points out the Mother has given no notice to the Director of Maintenance Enforcement nor any evidence to this court that she has tried to make arrangements with the Director regarding payments owed as required by s. 32 of Maintenance

Enforcement Act RSA 2000, chap M-1 . [ 86 ] In additional to failing to comply with s. 32 , I find that the Mother has no valid reason for a stay order. The evidence shows that the Mother quit her employment at Shaw Communications. On October 24, 2019 Justice Woolley made specific findings pertaining to the Mother's ability to work.

The transcript of the court hearing at page 71 reads as follows: [The Mother] has demonstrated the ability to obtain good employment since her marriage, employment commensurate with her training and experience, including working at Shaw from March 2016 until February 2018. [The Mother's] suggestion that she was unable to keep those jobs because of the stress of the breakdown of the marriage is not established on the record before me.

Her claim in this respect places responsibility for the stress arising from the marital breakdown [on the Father] and treats that stress as extraordinary and exceptional without any evidentiary basis for either claim. Certainly, the breakdown of a marriage is an unhappy and stressful occasion, but the mere fact of that stress does not explain [the Mother's] inability to maintain employment.

Or to put it somewhat differently, it does not explain why her circumstances are any different from [the Father's] or give rise to any compensatory obligations on [the Father's] part. [...] First, [the Mother] has the capacity to obtain reasonably paid employment. She has graduate and post-graduate education and speaks good English. She has obtained good jobs in Calgary. Second, [the Father] earns a moderate income in the range of 125,000 [sic], has debt and no meaningful assets and has primary responsibility for the care of the child of the marriage, [P]. [The Mother] pays very modest child support.

Since August 2019, she has paid $200 per month. And [the Father] is discharging all of the financial obligations of raising the child. [ 87 ] Nothing in the evidence I heard at trial would contradict the findings of Justice Woolley quoted above. [ 88 ] The Father, in his submissions against granting the Mother a stay order further argues the Mother fails the well-known tri-part test: whether there is a serious issue to be tried; whether there will be irreparable harm to an individual; and the balance of convenience. See Sweezey v Sweezey , 2016 ABCA 122 .

Money owed under a court order or judgment is not irreparable harm. MacFarlane v MacFarlane , 2016 ABCA 92 . [ 89 ] The balance of convenience favours the Father. The evidence at trial is that the Father's monthly expenses exceeded his monthly income by $2,412.00.

Due mainly to legal fees in this protracted litigation and financially supporting P he has accumulated debt of $70,653.97. [ 90 ] On June 17, 2019, Justice Anderson also denied the Mother's Stay of Enforcement application regarding child support she owed under the above-mentioned Anderson J. order of November 13, 2018. [ 91 ] In denying this Stay of Enforcement application, and for the reasons above stated, I reject the Mother's arguments of financial "hardship"; the stress and anxiety of litigation; re-calculation of parenting time and the need for more time to find suitable employment.

These submissions have already been argued and rejected by the court before. There is a lack of an evidentiary base to grant a stay order. [ 92 ] I have found that:

a) The Father will have primary care with parenting time for the Mother as set in these reasons;

b) The Mother owes the Father $14,671.83 for retroactive child support;

c) The Mother’s guideline income is imputed at $26,000 per annum. The Father’s guideline income is $123,616 per annum;

d) Section 3 monthly child support is payable by the Mother to the Father at $222 commencing January 1, 2021;

e) Section 7 expenses are set out and to be paid according to the Guidelines ratio. [ 93 ] Costs are to be addressed by written submissions by 1 February, 2021. Heard on the 2 nd day of March, 2020 to the 6 th day of March, 2020 and the 9 th day of March, 2020 to the 13 th day of March, 2020 and the 16 th day of March, 2020 and the 26 th day of October, 2020 to the 30 th day of October, 2020. Dated at the City of Calgary, Alberta this 23 rd day of December, 2020. Bryan E. Mahoney J.C.Q.B.A.

Appearances: Joy Dukeshire for the Plaintiff Rupert N. Joshi for the Defendant