SBP v KDP, 2021 ABQB 10

Court of Queen’s Bench of Alberta Citation: SBP v KDP, 2021 ABQB 10 Date: 20210105 Docket: 4803 179317 Registry: Edmonton Between: SBP Plaintiff - and - KDP Defendant _______________________________________________________ Judgment of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] A father applies for primary (or shared) parenting of a separated couple’s nine-year-old daughter, following many years of primary parenting by the mother.

The father contends that the mother’s care has been substandard and that the child’s best interests are served by the proposed change. [ 2 ] The mother resists, asserting that her care of the child has been adequate and, if at times less than ideal, that such was due to

a serious illness suffered by her, which she says no longer hampers her ability to care for the child. [ 3 ] I find that the mother’s care has been adequate and that the father has not shown a parenting change would be in the child’s best interests. B. Background [ 4 ] The parties married in July 2009, saw the arrival of their daughter in May 2011, and separated in October 2012. They agree that, since then and by informal agreement (i.e. with no parenting order), the mother has had primary parenting of the child.

They also agree that, for at least through 2015, the father’s access was every weekend (or almost every weekend). [ 5 ] The mother says that, in 2015, per agreement, the father’s access changed to every second weekend. [ 6 ] The father says that access changed around May 2017, when (according to him) “the mother changed the parenting schedule” to access for him every second weekend i.e. the change was later and not by agreement. [ 7 ] In March 2020, with the emergence of the Covid-19 pandemic, the father voluntarily curtailed his access visits for the first few weeks.

He says that the mother unduly restricted his access after that, despite him and his new partner complying with all pandemic protocols. [ 8 ] In early August 2020, the father perceived that the mother was planning to relocate, with the child, to a remote (“off the grid”) location in British Columbia.

Ex parte , he obtained an order (from Mandziuk J.) barring the mother from relocating, or even travelling, with the child absent an authorizing court order. [ 9 ] On August 21, 2020, Jerke J. granted an interim parenting order reinstating the father’s every-second-weekend access, directing compliance by both parties with all Covid-19 public-health directives, directing the use of a parenting-communication tool as needed, obliging the parties to inform each other of child-related information, directing online schooling for the child, obliging the mother to provide the father with proof of school-registration, directing her to purchase a tablet for the child and provide proof of purchase to the father, and (once school started) directing the mother to advise the father daily of the child’s school attendance.

Jerke J. set the father’s take-over-primary-parenting application over to a special application, which I heard on October 2, 2020. C.

Father’s position [ 10 ] The father’s rationales for seeking primary parenting, detailed in his affidavits sworn July 29, August 14, and September 3 and 21, 2020, are summarized in the “Grounds” segment of his application filed September 3: • the child’s grades in school have significantly dropped while [she has been] in the day-to-day care of the [mother]; • [she] has been absent and late to school a significant number of times, and not attending online classes post-COVID-19, while in the [mother’s care]; • [the child’s] dental hygiene has suffered significantly, [with her] developing several cavities, while in the [mother’s care]; • the [mother] has poor health and ongoing cancer treatments.

The effects of treatment have likely prevented her from taking care of the basic needs of the child; • the [mother] has unilaterally enforced a strict and unreasonable quarantine rule with the father, refusing to grant [him] parenting time for five months, until [he] brought a chambers application and obtained a parenting order [from Jerke J.]; • the [mother] has a high risk of severe illness from COVID-19 and had been travelling outside [Alberta] with the child, in contravention of public health advice, until the [father] brought a chambers application and obtained an order [from Mandziuk J.] preventing her from removing the child from Edmonton; • the [mother] does not have family in Edmonton to assist and support her while [she is] receiving cancer treatments during the COVID-19 pandemic; • the [father] has a strong family support system and a healthy household that has been following COVID-19 public health guidelines; and • the [father] is able to ensure that the child attends classes and keeps up with her school work, and attends her dental and medical appointments.

D. Law [ 11 ] The father’s application to become primary parent (or for shared parenting) is effectively the first parenting application, and this despite the parties’ separation in October 2012 i.e. over eight years ago. All through those years, and up to summer 2020, the mother-as-primary-parent arrangement was built instead on the parties’ informal agreement. [ 12 ] The father’s application in early August 2020 was narrow-gauge only, yielding Mandziuk J.’s order barring the mother from moving or even travelling with the child out of Edmonton pending further court order.

Jerke J.’s interim parenting order later that month

was intended solely to bridge the period from that point until October 2, 2020, when I heard the special application. [ 13 ] With this effectively being a first-time parenting order, the “material change of circumstance” factor, applicable in variation applications, does not apply. [1] [ 14 ] The overarching focus, as in all parenting applications, is the best interest of the child.

But a different set of principles applies, namely, how to treat a status quo that one party wishes to change, even with a “first-time order”, as discussed in my decision in AMD v KG [2] : This is a first-time application for a parenting order i.e. the Court is not being asked to approve a change to an existing order for, or agreement about, parenting. In the case of a first-time order, the change sought is not to an order or a formal agreement, but to the status quo “on the ground.” … The question becomes: how to approach such an order?

I canvassed some of the Alberta law in PDB v AJB [2020 ABQB 298] and extracted the following principles: … 1. the overarching factor is the best interests of the child or children involved; 2. the status quo parenting is a factor in gauging the “best interests” interim parenting arrangement; 3. that includes both the pre- and post-separation status quo ; 4. as between those two, the pre-separation status quo will usually be more significant (typically representing a longer period of parenting and the “baseline” for the family); 5. a parent’s agreement, after separation, to a particular interim arrangement, should not be treated as a waiver of the right to seek a different (longer-term) arrangement [15] ; 6. the significance of the post-separation status quo may be particularly be diminished where: a. it is short-lived; b. it resulted from one parent’s (i.e. unilateral) decision (e.g. moving with the child or children); or c. it was affected by one parent’s inability, or reduced ability, to parent in the aftermath of the separation (e.g. arranging suitable accommodation and adjusting work schedules); 7. on the other hand, the longer the post-separation status quo , and particularly where it extends beyond the “immediate adjustments” stage, the more significance that status quo may acquire. (For example, in Sorensen v Cooney (cited above), the chambers judge and the Court of Appeal both focused exclusively on the post-separation period, which had run for three years); 8. on that aspect, a party may provide an explanation for apparent delay in applying for a parenting order i.e. other than simply agreement, or acquiescence, to a new status quo ; and 9. the status quo parenting (in either period) may be difficult, if not impossible, to determine in a chambers setting e.g. because of conflicting evidence.

In such case, it minimizes or even disappears as a factor. [ 15 ] Below I gauge the best interests of the child here, partly in light of these principles for determining the significance of the long-running (mother as primary parent) status quo . E. Analysis Long-running post-separation status quo [ 16 ] The starting point is that, since October 1, 2012, when the parties separated and when the child was sixteen months old, the mother has had primary parenting of the child. For at least the first three years post-separation, the father had every-weekend access.

Whether in 2015 or 2017, his access shifted to every second weekend. [ 17 ] In May 2017, the parties consented to a child-support order anchored on the mother having primary parenting, with the father paying

section 3 Guideline child support based on his income at the time. [ 18 ] The every-second-weekend access continued until March 2020, when the Covid-19 pandemic arrived. The parties differ on the reason for the access narrowing and its particulars. However, the key point is that, through the pandemic period and up to the present (early January 2021), the mother continued in her role as primary parent. [ 19 ] Given over eight years post-separation with the mother as primary parent, I do not see any need to explore the pre-separation parenting status quo. In any case, the parties did not devote much, if any, evidence to that aspect.

[ 20 ] Applying the status quo analysis from PDB v AJB , I find that this long-running status quo is a very significant factor here. I infer that the father was content with the post-separation equilibrium that the parties reached and maintained through all those years i.e. primary parenting by the mother, access for him. [ 21 ] Against this backdrop of long-running primary parenting by the mother, I gauge the father’s various reasons for believing the parenting roles should be reversed or at least shared equally.

Mother’s perceived inability to adequately care for the child [ 22 ] The father says that: • “approximately two years ago [summer 2018] the [mother] informed me that she has stage 4 breast cancer.

I have no way of verifying this information as I do not have access to her medical records; however, it appears that [her] health has recently deteriorated” [his affidavit sworn July 29, 2020]; • “the [mother] has confirmed [in her August 7, 2020 affidavit] that she will continue to undergo treatment for cancer indefinitely … the [mother] believes she has no issues with her ability to care for [the child] … even though [the child] was either absent or late around 50% of the [2019-2020] school year when it was in session, and was missing online classes when schools closed [in approximately March 2020]. [The child] also develop several [six] cavities due to neglecting her oral hygiene.

The [mother] is in denial about how this is affecting [the child] … [the mother] should have taken her health condition seriously and asked for help to take [the child] to school and appointments … I am the only one who can effectively care for [the child] while the [mother] is battling her cancer during the Covid pandemic. The [mother] has no family in Edmonton. I want the [mother] to get better because she is [the child’s] mom.

The best way I can support her is by having [the child] in my care so [the mother] can focus on her health … It is my understanding that [the mother’s cancer] treatments can be very physically and mentally demanding, and I worry about [the child’s] everyday routine … the [mother] herself stated that she ‘had concerns driving [the child] to school after taking medications and [was] eventually hospitalized.” This, I believe, is why [the child’s] grades have slipped and she has been shockingly late or absent from school half the time . … [the child] was absent 25 times between September [2019] and March [2020], before schools shut down due to COVID.

She was also late 45 times in the same time period. This means that, for around 50% of the school year, [the child] was either absent or late. [Per the child’s 2019-2020 report card], I am saddened that half of [the child’s] grades are C’s. She used to get A’s in school.

The [mother] did not keep me informed about [the child’s] poor attendance and school performance . … once classes began to take place online [mid-March 2020], it is my understanding that the [mother] did not ensure that [the child] attended … there are also concerns regarding [the child’s] dental hygiene. [She] has cavities and dental needs that have not been taken care of. [father indicates that the child is now on his dental plan and that he will pay for the necessary dental work] … I believe [the mother’s] poor health is … preventing her from taking care of [the child] any longer … [despite the mother’s claim to have a support network], her … brother [who lives] in Lethbridge has a full-time job and takes care of their elderly parents [who he says have “deteriorating health issues”] … Also … her boyfriend lives in BC ….

I have lost confidence in the [mother’s] ability to take care of [the child] on a day to day basis [his affidavit sworn August 14, 2020]; and • “[after restating his concerns about the child’s school performance and dental troubles] … I can only imagine what other areas of the child’s life have been neglected.

I strongly believe that her drop in grades and poor dental hygiene indicate a bigger, overall problem that the child’s needs are not being taken care of .” [his affidavit sworn September 3, 2020]. [ 23 ] On this subject, the mother says that: • “… I was working full time until 2018 when I was diagnosed with Metastatic Cancer. I continued to have day to day parenting of the child. I am undergoing treatments and tests into the unforeseeable future. I have no issues with my ability to care for our daughter. I have a support system with friends and neighbours to help and support [me].

My brother and parents are always available to come to help me if required. I have a boyfriend, incredibly involved and supportive with me and [the child]. He is incredibly open to moving with me if required in future. There is no issue of my inability to take care of my child and never has been. … The only reason [the] child had to miss her school in 2018-2019 [I think she meant 2019-2020, which was the father’s focus] was due to … concerns [I had] driving [the child] to school after taking medication and [was] eventually hospitalized. This did not affect her school.

I was very diligent with her homework, ensuring 20 minutes reading, math, comprehensive writing, spelling, and teaching in times [when] she missed [school].

My parents and family were there to support me and [the child] [her affidavit sworn August 7, 2020]; and • she deposes (per his September 8, 2020 affidavit), in part, that her boyfriend has in fact “moved to Alberta to support me and [my] daughter”, that the child “is doing well in her school, attending online every day and improving in her grades”, and that, dental-wise, she was up-to-date on the child’s appointments and that, per a dental specialist, the child’s cavities were “due to the fact that [her] teeth grew in that way, and it was not [the] fault of anyone.” [ 24 ] On the adequacy of the mother’s parenting, I find as follows: • the father uses the child’s school attendance, grades, and dental health, as barometers of the mother’s parenting.

He asks me to infer that subpar attendance, reduced grades, and cavities reflect generally suboptimal parenting by her, to the extent that primary parenting should revert to him; • I decline to draw that inference, for these reasons: o the father did not produce any evidence from the child’s teachers, principal, school counsellors or anyone else who might have offered a window on the child’s school performance i.e. beyond marks on a report card i.e. to see what else might account for the child’s perceived-by-the-father-to-be-suboptimal performance.

Could it be that she is aware of her mother’s cancer diagnosis and treatments and is experiencing stress and anxiety about her mother’s health? Could it be that she has trouble concentrating on school work with her mother in the midst of a serious illness? Could it be that, even if she lived with the father, she would experience the same (possible) anxieties, stress, and worries?

o for that matter, the father did not introduce evidence of the child’s historical school performance i.e. beyond his assertion that “she typically earned As”; o in any case, he did not introduce any evidence, expert or otherwise, on the significance of an “A history” in grade 1 and 2 or what a year of “Bs and Cs” in Grade 3 portends for a child’s academic future; o he did not explain his apparent ignorance of the child’s school attendance or marks in 2019-2020 (i.e. until some after-the-fact revelation point), when the evidence shows that he continued to have his every-second-weekend access with her from September 2019 through to March 2020 (when the pandemic arrived), during which times he presumably could have “taken the temperature” of the child’s school year e.g. asked her how she was doing and whether she needed help with anything, or asked the mother the same things, or the child’s teachers or others at her school; o he says that he “can only imagine what other areas of the child’s life have been neglected.

I strongly believe that her drop in grades and poor dental hygiene indicate a bigger, overall performance that the child’s needs are not being taken care of.” But that is not sufficient: he had to do more than imagine here.

If he was concerned about, for instance, her overall physical, emotional, or mental health, her relationships with her mother and other family members, her connections with friends, her extracurricular life, her spiritual life (if that is a dimension of their family life), the flowering of her talents (whatever they might be), or otherwise, he had a practical onus to explore those dimensions (including with the assistance, as necessary, of people like family doctors, teachers, school counsellors, psychologists and others with expertise in gauging the well-being of children) i.e. not simply ask me to look at scholastics and dental health and infer general malaise in her life and, in turn, poor parenting by the mother as the cause; o he acknowledges in his affidavits that the child appeared to be off to a better start in the 2020-2021 school year, at least attendance- wise (and I acknowledge that his most recent affidavit was sworn September 22, 2020 i.e. with the school year just underway); o he did not offer any evidence of having done anything in particular in response to the suggestions in the child’s 2019-2020 report card for enrichment activities in language arts and math; o he says that the mother should have reached out to him for help.

Did he think of reaching out to offer help to her? o he says that the mother “should have taken her health condition [i.e. metastatic cancer] seriously.” He offers no evidence to suggest she is not doing so.

His comment here was not helpful; o while the child is admittedly quite young (9.5), the father did not offer any evidence of her views on a possible shift of primary parenting to him or of a shift to shared parenting, or even on how she sees life with the mother, or ask that her views somehow be sounded (through a Voice of the Child report) or otherwise; o accepting that the mother’s brother and parents live in Lethbridge (i.e. are not close by to help whenever needed), and that the mother’s boyfriend, even if based in Edmonton at some points, including at present, is primarily based in BC (again, not always on hand to offer assistance whenever needed), the mother gave evidence of a network of “friends and neighbours” who offer support and assistance.

She did not specify exactly how that network functions or how often she draws on it, but neither did the father challenge her evidence of its existence; o could the mother have made better (or even some) arrangements for ensuring the child got to school (and on time) over the 2019-2020 year? Almost certainly. But, on a net basis, did those absences and “lates” cause serious prejudice to the child? Have they in fact set her back scholastically? Without input from teachers and counsellors (at minimum), it is impossible to say.

On the other hand, were those times when the child was able to spend time with the mother and perhaps boost her during her treatments, and in turn allow the mother to connect with the child in otherwise turbulent times?

The mother did not provide evidence on this point, but neither did the father produce any evidence (whether from comments made to him by the child or simply by asking the mother) about simply “wasted” days or hours when the child was late for, or absent from, school; o on the dental front, the mother gave evidence of having troubles with her dental coverage; however, she also gave evidence of being current with the child’s appointments and that the cavities cited by the father were “not anyone’s fault.” In any case, even if the mother should have asked the father to assist (via his benefit plan) earlier, the “dental crisis” (if there was one) appears to be over (thanks to the father indeed stepping up); and o as recently as October 19, 2019, the father expressed to the mother (via text) that he “know[s] how much you love and care for our daughter”, that he had “absolutely no doubts about your parenting skills and abilities”, and that “you’re an amazing mother and [our child] is blessed to have you.” [ 25 ] The father acknowledged a few times in his affidavits that the mother is “going through a lot” i.e. with her illness.

But I question whether, from the outside, he (or anyone else) can truly appreciate what the mother has been enduring with her illness and the resulting treatments. [ 26 ] While imperfect and sometimes falling short, the mother has been trying to do her best in the all the adverse circumstances of her illness. I find the child has not been materially disadvantaged or prejudiced, at least in any lasting way, by the shortfalls identified by the father. In other words, the mother has been parenting the child adequately, at minimum, despite her illness and treatments.

Mother’s apparent attempt to relocate to BC [ 27 ] Mandziuk J. has already addressed the father’s concerns here, by barring the mother from relocating or even travelling with the child away from Edmonton, without authorizing order. [ 28 ] The mother’s evidence is that she has no plans to relocate, especially in light of being tied to the Cross Cancer Institute (in

Edmonton) for treatments.

Mother’s “restriction” of father’s access post-start-of-pandemic [ 29 ] The father argued that the mother has unduly restricted his access since the start of the pandemic, albeit acknowledging that, during its opening weeks, he was agreeable to limiting contact (to the extent of exercising no access). [ 30 ] I make no particular findings about who was more observant of Covid-19 public-health directives, what particular directives applied to this family (i.e. with the mother’s precarious health), or whether anything differently should have been done by anyone on the Covid-19-precautions front. [ 31 ] It was open to the father to have applied for a court order defining, recognizing or expanding his access as soon as he perceived (i.e. in his view) that the mother was being unduly restrictive (in April 2020) i.e. he was not obliged to wait until mid-August to seek a parenting order defining (if only on an interim basis) his access rights.

Mother’s travel [ 32 ] On the general subject of travel, the father criticized the mother for trips with the child to BC (to see her boyfriend) and to Lethbridge (to see her brother and parents), especially during the pandemic and with her precarious health.

He suggested that she was inconsistent in pointing to her health troubles as explaining (at least in part) her (already discussed) difficulties on (for instance) the school front, yet apparently feeling well enough to make these journeys. [ 33 ] I do not fault the mother for taking these relatively short-distance trips to see loved ones, especially in her health circumstances.

The evidence did not show that either she or the child was at any enhanced risk of Covid-19 infection as a result of these trips. [ 34 ] In any case, I am prepared to, and do, order that both parties here comply fully with all applicable public-health directives, to ensure that the risk of infection, going forward, is minimized.

Father’s household [ 35 ] The father gave evidence of having a stable and long-standing relationship with a new partner, of having a twenty-year-old daughter from another relationship who lives with him and his partner during the school year, to his partner and other daughter as being ready, willing, and able to assist him in caring for the child if he were to became the primary (or shared) parent of the child, to having a comfortable and spacious home, and to be fully committed to taking on the full-time (or at least shared) parenting role i.e. to devoting all of his available time, energy, resources, and attention to caring for the child.

F. Conclusion [ 36 ] The father largely staked his application for increased parenting (whether full-time or shared) on perceived inadequacies in the mother’s parenting.

But I have found that her parenting, in all the circumstances, has been adequate, at minimum. [ 37 ] Given the long-standing (over eight years) status quo of the mother as primary parent, my rejection of the father’s central (inadequate parenting by mother) argument, and the lack of evidence from the father about why, in general, a shift in parenting is in the child’s best interests, I direct continued primary parenting by the mother, which I find to be in the child’s best interests in the all the circumstances here. [ 38 ] Accordingly, I dismiss the father’s application to expand his parenting, with continuation of his access on the same terms as directed by Jerke J., albeit (per his counsel’s request) with the start time being 7 pm. [ 39 ] If and when (if ever) the mother wishes to move away from Edmonton with the child (while the child remains a “child of the marriage”), she requires the consent of the father or a court order authorizing such a move. [ 40 ] The father asked (via his counsel’s October 19, 2020 letter) for directions on Christmas Day and summer-vacation access, with other “holidays and special days” to be agreed on.

His application did not seek such directions. I will leave it to the parties to attempt to agree on such access; if they cannot, they can seek directions (via letter (1-page maximum) to my assistant, sent by the end of January 2021), and I will give directions. [ 41 ] The mother has largely succeeded here. I award her costs of the application. Heard on the 2 nd day of October, 2020. Dated at the City of Edmonton, Alberta this 5 th day of January, 2021 .

M. J. Lema J.C.Q.B.A. Appearances: Lydia Lee Potter Healey Law Office for the Plaintiff (Father) Meenakshi Kaur Baath Kaur Law Office for the Defendant (Mother)