DC v NC, 2021 ABQB 1015

Court of Queen’s Bench of Alberta Citation: DC v NC, 2021 ABQB 1015 Date: 20211221 Docket: 4801 181025 Registry: Calgary Between: D. C. Applicant - and - N. C. Respondent Docket: FL01 30031 And Between: N. C. Applicant - and - D. C. Respondent _______________________________________________________ Judgment

of the Honourable Mr. Justice C.M. Jones _______________________________________________________ Introduction [ 1 ] This case requires the Court to decide what parenting arrangements are in the best interests of a nine year old child. The relationship between the parties, both before and after separation, involved high conflict and allegations of physical abuse. Background [ 2 ] The parties started cohabiting in 2011 and were married in 2012. They had met at a place of employment. [ 3 ] Ms. C had become pregnant with the parties’ son, C.

Although the pregnancy was unplanned, the parties decided to marry prior to C’s birth. [ 4 ] Ms. C has two sons, BH and JH, from a previous relationship. They are both young adults. [ 5 ] The parties eventually moved into what is now the former matrimonial home. Ms. C continues to occupy that home with C. BH and JH reside elsewhere. Events Leading to Separation [ 6 ] The parties had a high conflict relationship. They came from different backgrounds. [ 7 ] Ms. C appears to have been raised in Canada in an environment of relative leniency. Mr. C was born and raised in Romania.

He was one of seven children. [ 8 ] I accept the evidence of one of Ms. C’s witnesses, KD, that Mr. C’s father was an authority figure. Children were expected to do what they were told. Physical discipline in the event of misbehaviour was common. [ 9 ] The evidence satisfies me that Ms. C’s upbringing was less disciplinarian. [ 10 ] Ms. C was, for the most part, a stay at home mother. Mr. C has his own business which is related to the construction industry. [ 11 ] The parties, and all of their witnesses, agree that Mr. C worked very hard.

He would frequently work twelve hour days, often six days a week. [ 12 ] Ms. C, BH and JH describe the home environment with Mr. C as very stressful. The principal complaint appears to be that Mr. C was demanding, verbally and physically abusive, arbitrary, authoritarian and petty. [ 13 ] Excerpts from Trial Exhibit 47, USB Drive (audio and video encounters involving Mr. C, Ms. C and one or more of BH and JH) and Trial Exhibit 48, transcript of audio recordings from Trial Exhibit 47, confirm those descriptions. I note, however, that those encounters were not recent. They predated Mr.

C’s efforts to obtain counselling for anger management. [ 14 ] Episodes of physical abuse culminated in the termination of the parties’ cohabitation when, on January 28, 2019, the police were called to an incident at the matrimonial home. Each alleges that the other was the perpetrator of the physical abuse. Mr. C was arrested, charged with and plead guilty to assaulting Ms. C. He received a conditional discharge. [ 15 ] The matter was eventually put into Case Management with one of my colleagues. [ 16 ] Mr. C’s access to C was initially very restricted. Mr.

C’s first unsupervised daytime parenting and his first overnight parenting time, also unsupervised, were directed to take place in April 2021. By virtue of an order of the Case Management Justice dated May 11, 2021, parenting time had evolved to include unsupervised parenting from 5:00 p.m. on Friday to 6:00 p.m. on Sunday, every other weekend. Mr. C complains that Ms. C would not allow him to exercise his Court-ordered parenting time. [ 17 ] Mr. C’s access was terminated on September 21, 2021, by virtue of an ex-parte Emergency Protection Order (EPO) obtained by Ms. C from a Justice of the Peace. [ 18 ] Ms.

C alleged that Mr. C had physically abused and injured C in response to C allegedly throwing a slipper at Mr. C. [ 19 ] This EPO was brought before this Court for review on September 30, 2021. It was adjourned to November 24, 2021. [ 20 ] Based on the totality of evidence I heard over the trial before me, I terminated the EPO and granted Mr. C specified supervised daytime parenting over the 2021 Christmas break. That specified supervised parenting time was to be the only parenting time Mr. C would have with C until this decision was rendered.

[ 21 ] The trial before me lasted nine days. The Court heard from thirteen witnesses. Both parties were self-represented. What Mr. C Seeks [ 22 ] Mr. C alleges that Ms. C has attempted to alienate him from C. The expert evidence provided by Dr. Terry Singh, discussed below, affirms that view: Exhibit 25, PN8 Report, paragraph 130. [ 23 ] Mr. C argues that the only way to counteract Ms. C’s attempts at alienation is to make him the primary care parent and to give him final decision-making authority in the event the parties cannot agree. He undertakes to ensure that Ms.

C has “consistent parenting time” with C. [ 24 ] In the alternative, he argues for a 50/50 shared parenting arrangement. But, he suggests that it would be necessary to revisit awarding him primary care if Ms. C continues her attempts at alienation. [ 25 ] He alleges that Ms. C does not take C’s education seriously. C appears to have a spotty school attendance record. He believes that he is more motivated than Ms.

C to address C’s educational needs and offers this argument in support of his request for a change in primary parenting. [ 26 ] The evidence establishes that C’s performance in school has improved since the parties separated. What Ms. C Seeks [ 27 ] Ms. C seeks sole custody and decision-making in respect of C, with limited supervised visits for Mr. C at this time. [ 28 ] Mr. C would be given access to C’s health and education records. C would not be permitted to travel outside of Alberta with Mr. C. without Ms. C’s written permission. He would not be permitted to travel outside of Canada until he turns 18.

The Evidence [ 29 ] In addition to giving evidence himself, Mr. C called six witnesses. They were: (

a) his brother, RC; (

b) Mr. C’s mother; (

c) his access supervisor PG; (

d) his access supervisor AT; (

e) Eileen Ailon; and (

f) Dr. Terry Singh. [ 30 ] Dr. Singh was appointed by the Case Management Justice on November 6, 2019 to undertake a Practice Note 8 parenting time/parenting responsibilities assessment. [ 31 ] In addition to giving evidence herself, Ms. C called five witnesses. They were: (

a) her son, BH; (

b) her son, JH; (

c) her mother, SM; (

d) her friend, KD; and (

e) her friend, MC. [ 32 ] For the most part, the parties’ witnesses, with the exception of Ms. Eileen Ailon and Dr. Terry Singh, were called as “character” witnesses and stayed on script. By that I mean Mr. C’s witnesses affirmed that they never witnessed Mr. C exhibit aggressive or abusive behaviour in the presence of C. Ms. C’s witnesses affirmed that Mr. C mistreated and abused Ms. C, BH, JH and, to a lesser extent, C. Mr. C’s Witnesses [ 33 ] Mr. C’s witnesses were generally critical of Ms. C’s lack of support of Mr. C, her hostility towards them and her overly lenient, indulgent parenting style.

Those perspectives were reflected in the testimony of Mr. C’s brother, RC and his mother. [ 34 ] Mr. C’s supervisors, PG and AT, testified that they had witnessed no violent or abusive behaviour during Mr. C’s supervised

parenting time with C. They testified that C seemed to enjoy time with his father. [ 35 ] PG testified that no one ever expressed concerns to him regarding Mr. C’s alleged violent behaviour. [ 36 ] AT, Mr. C’s other supervisor, also testified that Mr. C’s interactions with C during visits were free of abusive behaviour. Except at the time of pickup, he never saw C express anxiety about visits with his father. Once visits started, C would relax and be happy. [ 37 ] Mr. C’s mother testified that Mr. C had a loving relationship with C. She testified that Ms.

C had not made her feel welcome when she visited from Romania and that Mr. C and Ms. C fought a great deal. She stayed with the parties for an extended period of time. She does not appear to have been able to converse with Ms. C in English. [ 38 ] She testified that once the parties separated, Ms. C made no effort to keep in touch. [ 39 ] Mr. C’s brother, RC, lives in Spain and visited the parties in Canada on two occasions. The first visit was in 2016. He lived with the parties. The second visit was in 2018. His wife and children accompanied him on that visit. They lived with the parties during that visit.

Both visits were for an extended period of time. [ 40 ] He testified that Mr. C’s interactions with C were very good when the parties were still living together. Mr. C and C had a strong relationship at that time. Mr. C was never aggressive. [ 41 ] Apparently, relations between Ms. C and RC’s wife deteriorated in the one month plus period of time during which RC, his wife and two children occupied the parties’ residence. [ 42 ] I attach little significance to the fact that unhappy relations eventually developed between Mr. C’s mother, brother and family and Ms. C as a consequence of these extended visits.

I suspect Ms. C simply felt overwhelmed by the number of her husband’s relatives from overseas and the duration of their visits. Ms. C’s Witnesses [ 43 ] Several of Ms. C’s witnesses asserted that Mr. C’s behaviour was inconsistent. In public, he presented as even-tempered, courteous and respectful to others. In private, he was an abusive spouse, father and step-father. A witness testified that he was obsessively concerned with household cleanliness and order. [ 44 ] Ms. C’s sons, BH and JH, testified that Mr. C terrorized them. He was mentally and physically abusive.

He was demanding, arbitrary and mean-spirited. [ 45 ] Both stated that Mr. C’s behaviour inflicted long-lasting psychological damage upon them. [ 46 ] BH testified that he believed he had a closer relationship with C than did Mr. C, due in large part to Mr. C’s absence from the home for work. [ 47 ] Ms. C’s friend, MC, a teacher, testified that Mr. C acted unkindly towards Ms. C’s sons. She testified that he was demeaning and derogatory. [ 48 ] She testified that Mr. C treated Ms. C badly. She believes that Mr. C harmed his relationship with C, leading to C’s complete emotional breakdown.

She believes there is no trust between C and his father. [ 49 ] She testified that Mr. C has abused Ms. C financially since separation. She believes he has withheld child and spousal support but has acquired expensive vehicles for his own use. [ 50 ] She believes that C is happy now that he does not have to interact with his father. [ 51 ] Ms. C’s friend, KD, had known Ms. C since she was a young child and had known Mr. C for over ten years. She attended their wedding. [ 52 ] She would occasionally visit their home and stay for a couple of days. [ 53 ] KD was a very credible witness.

She was balanced in her assessment of the parties’ strengths and weaknesses. She did not take sides. [ 54 ] While she testified that her relationship with Mr. C was positive, she acknowledged that he was “hard nosed” with BH and JH. She attributes Mr. C’s parenting style to a harsh upbringing where abuse was rationalized as discipline. [ 55 ] She confirmed incidents in which Mr. C was too physical with BH and JH. She relayed an incident at Christmas where Mr. C spanked C on his behind. C complained that Mr. C had hurt him. [ 56 ] KD testified that Mr. C was rough, stern and verbally abusive with BH and JH.

She testified that Mr. C was unrealistic in his expectations regarding the state of order and cleanliness expected of the matrimonial home. [ 57 ] During mood swings, Mr. C would occasionally spank C. According to KD, within three months of the parties’ separation, C started to exhibit fear of Mr. C. [ 58 ] Ms. C’s mother, SM, who lives in Nova Scotia, testified that she had visited the parties four or five times between their marriage and separation. The relationship between SM and Mr. C deteriorated as time went on.

[ 59 ] SM was not hesitant in telling Mr. C that she did not approve of his parenting style. Mr. C would tell her to mind her own business. [ 60 ] She testified that Mr. C was abusive with BH and JH. [ 61 ] As time went by, she believed that C started to distance himself from his father. She believed that Mr. C demanded an unattainable degree of cleanliness and order in the matrimonial home. [ 62 ] She confirmed the testimony of Ms. C’s other witnesses who stated that there were two sides to Mr. C’s personality. To others, he projected an even-tempered personality. At home, he was a tyrant. The evidence of Dr.

Terry Singh [ 63 ] Dr. Singh’s Practice Note 8 assessment report was dated December 21, 2020 (PN8 Report). The trial before me commenced on October 25, 2021, some ten months later. [ 64 ] As noted in the PN8 Report, Dr. Singh’s mandate was to conduct a parenting time/parenting responsibilities assessment. [ 65 ] At the time Dr. Singh conducted his assessment, C ordinarily resided with Ms. C and Mr. C had been granted the following parenting time by Order of this Court dated November 6, 2019: (

a) Wednesdays from 4:00 p.m. to 6:45 p.m. (

b) Every second Saturday from 10:00 a.m. to 6:00 p.m. (

c) Every second Sunday from 1:30 p.m. to 5:30 p.m. (

d) Tuesday and Thursday Skype calls initiated by C between 6:30 p.m. and 7:00 p.m. [ 66 ] Mr. C’s parenting time was supervised. [ 67 ] The PN8 Report relays allegations by Ms. C of physical abuse visited upon her, C, BH and JH by Mr. C. Dr. Singh notes Ms. C’s allegations of emotional abuse and belittling behaviours by Mr. C. [ 68 ] Ms. C expressed concern to Dr. Singh that C would continue “to be physically abused emotionally abused...and end up feeling empty and worthless and lost much like my older children feel from the last eight years everything [Mr. C] put us through”. [ 69 ] Ms. C told Dr.

Singh that C displays “extreme stress and anxiety when he is expected to visit his dad”. In light of those concerns, she advised Dr. Singh that she thought it in C’s best interests if Mr. C continued to have only supervised visits, alternating Saturdays and Sundays for seven hours and four hours, respectively. [ 70 ] Her proposal for holiday access would significantly constrain Mr. C’s parenting opportunities. She wishes to have final decision-making authority in the event the parties cannot agree. [ 71 ] Mr. C had advised Dr.

Singh that he proposed a 50/50 shared parenting arrangement, either one week on and one week off or two weeks on and two weeks off. Mr. C proposes an equal sharing of all holiday time. [ 72 ] Mr. C expressed to Dr. Singh the view that both parents should have equal rights and responsibilities in terms of decision making. Mr. C advised Dr. Singh that he would support the involvement of a professional in the event the parties disagreed. [ 73 ] Dr. Singh summarized the parents’ testing results as follows: Ms.

C [ 74 ] She may be experiencing symptoms related to depression and anxiety, and may ruminate about physical issues. These symptoms may be related to past traumatic events. She may have a tendency to suppress or have difficulty recognizing her own upsetting emotions. [ 75 ] She is not at risk to physically abuse a child, and she is unlikely to be struggling with a substance abuse disorder. [ 76 ] She is currently experiencing an overall level of parenting stress in the normal range. Mr. C [ 77 ] He is not currently experiencing any mental health symptoms of clinical significance.

Interpersonally, he may engage in attention-seeking behaviours due to a need to receive positive regard from others. He may have a tendency to suppress or have difficulty recognizing his own upsetting emotions. [ 78 ] He is unlikely to be struggling with a substance abuse disorder. [ 79 ] He is currently experiencing an overall level of parenting stress in the normal range and he appears to hold attitudes consistent with good parenting. [ 80 ] Dr. Singh reports that attempts to observe C interact with Mr. C at Mr. C’s home were unsuccessful. At the first attempt, C

reportedly refused to participate in the home visit. At the second attempt, C attended at Mr. C’s residence but never entered and gave no reason for not doing so. [ 81 ] Dr. Singh noted that Ms. C spent more time focusing on encouraging C to communicate to him why he did not want to enter his father’s residence than she spent encouraging C to enter that residence. [ 82 ] An issue arose at trial in respect of one aspect of the PN8 Report. The PN8 Report describes the various psychometric tests administered to the parties. One of those tests is the CAP1.

Clause 108 of the Full Assessment Details to the PN8 Assessment (Details) states that: The CAP1 is a screening tool for the detection of physical child abuse. [ 83 ] Clause 130 of the Details states that: CAP1: [Mr. C’s] response style on this measure suggested that he was attempting to present himself in an overly-positive manner. His responses on this measure are considered invalid for this reason, and are not interpreted. did not yield any concerns about the validity of his responding.

His responding did not reveal any suggestion that he is at risk to physically abuse a child. [ 84 ] On cross-examination of Dr. Singh, he acknowledged that the two parts of clause 130 of the Details appear to convey contradictory information. On the one hand, the first

part indicates that Mr. C’s responses to the CAP1 were invalid and not interpreted. On the other hand, he concluded that he had no concerns about Mr. C’s responses and that his responses did not suggest that he was at risk of physically abusing a child. [ 85 ] On questioning by Ms. C and the Court, Dr. Singh acknowledged this conflict. He withdrew the comments in the second part of clause 130. He testified that he could offer no conclusion regarding the implications of this test for Mr. C’s propensity to abuse children. Dr. Singh’s Conclusions [ 86 ] Dr. Singh concluded that, at a minimum, Mr.

C has a history of enacting physical discipline towards C. His parenting style is authoritarian. That approach tends to emphasize adherence to and compliance with rules, alongside use of physical and/or verbal punishment for non-compliance. [ 87 ] Mr. C consistently downplayed or denied any history of engaging in physical discipline, which may be viewed as a poor prognostic indicator for engagement in appropriate treatment because, according to Dr. Singh, individuals who engage in such behaviours are unlikely to view themselves as requiring such treatment. [ 88 ] Dr.

Singh was critical of the anger management program which Mr. C had undertaken, raising questions regarding the qualifications of Mr. C’s anger management counsellor. [ 89 ] Dr. Singh recommended that Mr. C engage in individual counselling with a focus on parenting, conducted by an experienced mental health professional who is recognized as a parenting expert by the Court. [ 90 ] Dr. Singh noted that no concerns arose with regard to Mr. C harming C during his supervised visits. [ 91 ] Dr. Singh expressed concern that Mr. C’s parenting time had not been occurring on a regular basis. He expressed the view that Ms.

C must learn to differentiate between perception of the risk of Mr. C causing C harm and the actual risk. [ 92 ] Dr. Singh found evidence of alienation on the part of Ms. C. He noted: Any and all attempts on the part of [Ms. C] to undermine C’s relationship with Mr. C must stop immediately. [ 93 ] He also noted that: [Ms. C] in fact has a responsibility to both promote and facilitate C’s relationship with Mr. C for the benefit of C. [Ms. C] may act on this responsibility by developing skills, such a productively responding to C’s complaints about Mr.

C and/or C’s reluctance or refusal to attend future parenting time with Mr. C, which – in a manner similar to C’s school attendance, should not be viewed as optional. [ 94 ] Dr. Singh commented on Ms. C’s permissive style of parenting: Permissive parents are often reluctant to restrict their child, setting few if any limits, and or slow to provide direction. They tend to emphasize the feelings of the child, regularly acquiesce to a child causing commotion, provide limited discipline, and do not teach their children to control their impulses. [ 95 ] Dr. Singh recommended that Ms.

C’s individual counsellor be provided with a copy of his report, with the understanding that it is his recommendation that Ms. C’s treatment goals include working to change her current permissive style of parenting, and working to support C’s relationship with Mr. C. [ 96 ] Dr. Singh concluded: The immediate priority is to resume the father’s current parenting time while ensuring both parents are working towards the changes recommended above.

As [Mr. C] progresses with respect to demonstrable parenting change, his parenting time should be both expanded and unsupervised. Should he be unwilling or unable to work towards the recommended changes, his parenting time should remain both limited and supervised. [Ms. C] is also expected to work toward the parenting changes described above. Should she be unwilling or unable to do so, her parenting time should be reduced. [ 97 ] Importantly, Dr.

Singh noted the importance of professional third party involvement: For the reasons described above, the parents are likely to benefit from increased communication regarding parenting issues in a structured environment, and accountability regarding existing agreements. For this reason, the appointment of a Parenting Coordinator/Arbitrator for the parents is recommended at this time, and the individual should be permitted the jurisdiction to modify the current parenting schedule. [ 98 ] Dr. Singh recommended that C continue to reside primarily with Ms. C. He recommended that Mr.

C have supervised parenting time as follows: (

a) On Tuesday and Thursday evenings by Skype call initiated by C between 6:30 p.m. and 7:00 p.m. (

b) In person every Wednesday from 4:00 p.m. until 6:45 p.m. (

c) One weekend in person visit, alternating weekly as follows: (

i) On Saturday from 10:00 a.m. to 6:00 p.m. and on Sunday of the following week from 1:30 p.m. to 5:30 p.m. (ii) At such further and other times as the parents may agree in writing. [ 99 ] Dr. Singh noted that it is Ms. C’s responsibility to ensure that C attend his parenting time with Mr. C. C’s resistance or refusal to attend should not be considered sufficient justification for cancellation of the same. [ 100 ] Dr. Singh recommended that holidays/special occasions should be divided as evenly between the parents as possible, with the current limitation that Mr. C’s parenting time must be supervised. [ 101 ] Dr.

Singh recommended as follows: The parents shall appoint a Parenting Coordinator Arbitrator Psychologist (PCAP) or Parenting Coordinator Arbitrator Lawyer (PCAL), for the purposes of assisting with co-parent communication, further changes to the parenting schedule, and each parent’s accountability regarding the parenting changes expected of them as described in this report. The PCAP/PCAL’s jurisdiction should include the ability to modify the current parenting schedule. [ 102 ] Dr. Singh recommended that the Court select the PCAP/PCAL.

He noted: The PCAP/PCAL may assist the parents in decision making related to this set of recommendations, or those finally set by a Court. Decisions made by the PCAP/PCAL should be made under the current Arbitration Act, with costs awarded as per the Act. Going forward, pending confirmation of demonstrable progress by an appropriate mental health professional, the PCAP/PCAL should consider expanding the father’s parenting time, which may include electing to Award the father unsupervised parenting time, including overnights.

Provided that the father is able to engage in appropriate counselling and demonstrate productive parenting changes (e.g. a shift from authoritarian parenting to authoritative parenting), his parenting time should be unsupervised and/or increased by the parents’ mutual agreement or by Award of the PCAP/PCAL, with the ultimate goal of 50/50 shared parenting. [ 103 ] Dr. Singh recommended counselling for Mr. C. The counsellor should be a parenting expert recognized by the Court. His counsellor should provide regular reports to the PCAP/PCAL. [ 104 ] Similarly, Ms.

C’s counsellor should provide regular reports to the PCAP/PCAL regarding her progress. Dr. Singh noted: Should the mother be unwilling or unable to actively support the relationship between the father and the child going forward, the PCAP/PCAL should be provided the jurisdiction to reduce her parenting time, or otherwise ensure that she is accountable for her behaviour going forward. [ 105 ] Dr. Singh recommended that C undergo psycho-educational assessment, with the aim of determining appropriate educational and behavioural supports for him going forward. Again, Dr.

Singh recommends that if the parties cannot agree on the resolution of various issues the PCAP/PCAL should determine the appropriate support for C. [ 106 ] Dr. Singh recommends that both parents have the right to access C’s information concerning health, welfare, education and religion. Neither parent should have a veto over the other to receive information, so long as the information in question is directly related to the child’s best interests. [ 107 ] The parties should communicate on parenting matters by virtue of a co-parent communication tool such as OurFamilyWizard. The Evidence of Eileen Ailon [ 108 ] Ms.

Ailon is registered psychologist. Her evidence was helpful. She had been engaged by Mr. C to provide him with therapeutic

counselling. Exhibit 10 is a letter dated March 18, 2021 from Ms. Ailon to Mr. C’s former counsel reporting on the outcome of that counselling. [ 109 ] Ms. Ailon reported that she had met with Mr. C for two hours in February 2021 and one hour in March 2021. The contents of her letter may be summarized as follows: (

a) Mr. C self-reported to Ms. Ailon that he had taken an anger management course twice and that he had taken another 16-week family abuse course. (

b) Mr. C self-reported to Ms. Ailon that he does not speak ill of Ms. C to C but that Ms. C makes negative comments about him to C. (

c) Mr. C self-reported to Ms. Ailon that his parenting style was strict in terms of ensuring healthy routines for C, his being respectful and polite to others, as well as protecting C from activities where he could be harmed. (

d) Mr. C self-reported to Ms. Ailon that he spanked C when he was younger and would raise his voice when C was doing something dangerous. He denied abusing C in any manner. (

e) Mr. C advised Ms. Ailon that he is concerned about C’s poor school attendance and attentional and concentration problems. He is concerned that C is confused regarding negative comments C has allegedly heard about him. [ 110 ] Ms. Ailon commented on the PN8 Report. Ms. Ailon noted that Dr. Singh’s report did not indicate personality problems consistent with abusive parenting. [ 111 ] Ms. Ailon was referring to clause 130 of the Details. Apparently, she missed the contradiction in wording reflected in that paragraph which I have noted above. [ 112 ] Ms. Ailon noted Dr. Singh’s comments which contrasted Mr.

C’s authoritarian style of parenting with Ms. C’s permissive style of parenting. [ 113 ] Ms. Ailon noted: It will therefore be important in this therapy, to assist [Mr. C] in dealing with how confusing it may be for C to transition from one parent to the other, with such different parenting styles. [ 114 ] This is an important point. As noted below, Mr. C does not, in his closing submissions, address how he proposes to deal with the implications of these contrasting parenting styles should there be a change in C’s parenting arrangements.

He simply asks to reverse the current arrangement such that he be vested with primary care of C. [ 115 ] Ms. Ailon commented that Mr. C was provided with materials and discussion regarding authoritarian vs. authoritative parenting styles. She also provided materials and discussion regarding “positive parenting”. She commented in her letter that the various topics comprising a discussion of positive parenting will be reviewed with Mr. C and practice exercises will be discussed. Evaluation of Mr. C’s progress will be discussed and planned. [ 116 ] Ms.

Ailon’s letter was accompanied by an addendum dated October 19, 2021. [ 117 ] In that addendum, Ms. Ailon reported that Mr. C had attended four more sessions, presumably with her. In her view, Mr. C had demonstrated a strong commitment to his son. He described appropriate parenting on the few occasions where he had had parenting time with C. [ 118 ] Apparently, in formulating her comments, Ms. Ailon had not been made aware of the September 2021 EPO. [ 119 ] Based on information provided by Mr. C, Ms. Ailon believes that C is “entirely too caught up in the parent’s conflict”. She comments that Mr.

C: has been working on how to deal most effectively with accusatory and degrading comments made by C, which are similar to those noted in the PN8 report, reflecting the child’s confusion regarding his father. [ 120 ] Ms. Ailon commented in the addendum that Mr.

C: has reviewed authoritarian parenting and authoritative parenting and seems to have a good understanding of appropriate parenting concepts. [ 121 ] She commented on the few opportunities he has had to implement his new knowledge of parenting styles. [ 122 ] She commented that he has established a positive regard for the assistance he has received in the courses and therapeutic sessions he has undertaken to be a better parent for the sake of his child. [ 123 ] Ms. Ailon helpfully educated the Court on the evolution of the term alienation.

She described current characterization of behaviour which manifests reluctance to visit one parent as the resist/refuse dynamic. Mr. C’s Closing Written Submissions

[ 124 ] Mr. C acknowledges that he was not perfect but argues that he did the best he could throughout the marriage. Notably, he denies being abusive towards anyone, C included. [ 125 ] This observation manifests a profound lack of self-awareness. The evidence (audio, video, testimonial) clearly establishes a repetitive pattern of pervasive abuse and intimidation by Mr. C of Ms. C, BH and JH. It severely strains his credibility. [ 126 ] He believes the fact that he has had limited parenting time with C has adversely affected C. He argues that Ms.

C has abused the EPO process in an attempt to deny him access to C. [ 127 ] He notes that none of the 50 supervised visits he had with C from May of 2019 to March of 2021 raised any concerns. [ 128 ] He argues that Ms. C’s efforts in securing three EPOs demonstrate an effort on her part to deny him access to C. He believes that Ms. C purposively ignores Court Orders regarding his parenting time. He asserts that Ms. C has failed to implement Dr. Singh’s recommendations regarding C’s schooling and counselling for C. [ 129 ] He commented on what he characterised as Ms.

Ailon’s evidence regarding overt acts of alienation on Ms. C’s part. [ 130 ] Mr. C asserts that, through counselling, he has learned about the effects of authoritarian parenting. He has learned how he might improve his interactions with C. [ 131 ] He claims to have completed a 16 week anger management course. He claims to have also completed two other 8 hour courses. He did not provide evidence in that regard. [ 132 ] He claims that Ms. C has taken no steps to address her permissive parenting style as suggested by Dr. Singh. She has taken no steps to address her alienating behaviour. [ 133 ] He asserts that Ms.

C demonstrated similar behaviours in her earlier relationship leading to the birth of her sons. He claims that Ms. C’s former partner also faced allegations that prevented him from having positive relationships with JH and BH. [ 134 ] Mr. C points to the September 2021 EPO which Ms. C obtained on an ex parte basis. He complains that the fact that she waited a week after the alleged incident to obtain an EPO suggests she behaves inconsistently. [ 135 ] Mr. C takes the position that if he in fact had set out to injure his son, the injuries would have been much worse than Ms.

C complains about, given the size difference between the two of them. [ 136 ] Mr. C argues that the September 2021 EPO is another example of Ms. C’s efforts to marginalize him in his efforts to parent his son. He attaches significance to the fact that Ms. C obtained this EPO approximately one month before the start of the parties’ trial. [ 137 ] Mr. C believes that changing the parenting arrangements will somehow affect Ms. C’s inclination to engage in alienation.

He argues that if 50/50 shared parenting does not end the alienation, he should be vested with primary care of C. [ 138 ] He also believes that under a shared parenting arrangement, he can be proactive in addressing C’s educational issues and opportunities for extra-curricular activities. [ 139 ] He requests final decision making in the event of disagreement. [ 140 ] He wants to see all holidays shared, daily video calls and no relocation outside of Calgary unless done by consent or further Court order. [ 141 ] Mr.

C believes that any parenting order issued by this Court should contain a police enforcement clause. Ms. C should be held responsible for her actions through a detailed contempt clause. [ 142 ] He asks that Ms. C be solely responsible for the costs of the PN8 Assessment in the amount of $12,400. He claims that she failed to cover her own portion of the outstanding costs not covered by legal aid. He believes this was an attempt to delay proceedings and completion of the report. He claims he had to pay $3,100 not covered by legal aid. He also paid Dr.

Singh’s fee of $7,000 for attending at the trial. [ 143 ] He seeks costs of the trial in accordance with

Schedule C. [ 144 ] He accuses Ms. C of slapping him and staging incidents so that she could build a case against him. He claims pictures which she tendered in evidence were doctored as he was never abusive to her. [ 145 ] In my view, Mr. C advocates changing the current parenting arrangements in retaliation for what he deems to be a conscious attempt by Ms. C to marginalize his interactions with C. This attitude does not improve the prospects of cooperative parenting. Ms. C’s Closing Submissions [ 146 ] Ms. C’s written submissions were consistent with and amplified the points she tried to make during the trial.

That is, Mr. C is a narcissist. He is a bully. He refuses to see other perspectives and must control his interpersonal relationships. [ 147 ] She notes, correctly, that Mr. C refuses to admit that he was abusive during the parties’ relationship. Her point is underscored by the evidence. Video evidence (Trial Exhibit 47), audio transcript evidence (Trial Exhibit 48), the fact that the Courts have found it necessary to issue three EPOs in respect of Mr. C and the fact that he was charged with and plead guilty to assaulting Ms. C confirm that,

at least to a certain point in time, Mr. C has had challenges controlling his temper. [ 148 ] Furthermore, Ms. C sees no evidence of a change in Mr. C’s responses to her.

She asserts that he continues to manipulate the truth and the legal system in his attempts to manipulate her and control the parties’ ongoing relationship. [ 149 ] Fundamentally, she believes his interpersonal issues interfere with his ability to parent in a manner consistent with C’s best interests. [ 150 ] In response to my observations that parenting coordination is essential, she indicates in her written submissions: I believe this to be true and very helpful. [ 151 ] She claims to be unable to afford a parenting coordinator.

Later in this decision, I outline my direction regarding parenting coordination and who will pay for it. [ 152 ] She had hoped that Dr. Singh’s report would confirm her assertion that Mr. C is a narcissist. She argues that Dr. Singh failed to make that determination because his information regarding Mr. C was incomplete and outdated. [ 153 ] She thinks Dr. Singh places too little importance on what she believes is overwhelming evidence of Mr. C’s abusive behaviour. She believes the many supervision reports reviewed by Dr. Singh were somehow engineered by Mr.

C to portray a false impression of behaviour around C. [ 154 ] She notes comments by Dr. Singh regarding her apparent lack of willingness to ensure that C participated in visits with his father. She rejects assertions that she engaged in alienating behaviour. Rather, she believes that Dr. Singh and the Courts have misapprehended the level of abuse which characterized the parties’ relationship. Had he and the Courts appreciated the extent of abuse, it would temper suggestions that C be required to spend time with his father despite his alleged reluctance to do so. [ 155 ] Ms.

C attributes C’s poor academic performance to turmoil within the relationship. She attributes C’s recent improved academic performance to the fact that Mr. C is largely a non-participant in C’s life. [ 156 ] Ms. C is critical of the Case Management Justice’s decision to grant Mr. C unsupervised parenting time. She asserts that this was against Dr. Singh’s recommendations. [ 157 ] In fact, Mr. C had undergone counselling for anger management before unsupervised parenting was ever granted. He had also worked with Ms. Ailon to address his authoritarian parenting style. [ 158 ] She points to Mr.

C’s denial at trial of any criminal conviction. I am somewhat concerned that Mr. C would attempt to divert attention from the fact of a conviction for assault by pointing to the absence of a criminal record as a consequence of a conditional discharge. [ 159 ] Ms. C believes that Mr. C’s six sessions with Ms. Ailon, his sixteen-week anger management course and two other, eight hour courses have had no positive impact on Mr.

C’s relationship with C. [ 160 ] She refers to two alleged incidents of unruly behaviour before the Case Management Justice who, she claims, had to call security and expressed concern for his safety. [ 161 ] Ms. C attributes Dr. Singh’s comments regarding her challenges in meeting her children’s needs to confusion when answering test questions. [ 162 ] Ms. C reviewed the audio and video evidence in some detail. Her evidence describes a man with a distorted view of the role of a father, step-father and husband in a family environment. [ 163 ] Ms. C believes that Mr.

C can only begin to build a bond of trust with C once: Mr. C stops denying abuse and seeks help open heartedly to make positive changes and this a long-term specialized counselling and learning new skills takes time and is not effective or easy to make changes especially when you’re in denial and or lying. [ 164 ] In my view, Ms. C, to some extent, advocates retaining the current parenting arrangement in retaliation for what she considers to be years of physical and mental abuse visited upon her and her children by Mr. C. This attitude does not improve the prospects of cooperative parenting.

Analysis [ 165 ] What parenting arrangement is in C’s best interests? In making that determination I must take into account: (

a) the views expressed by Dr. Singh; (

b) the evidence adduced by the parties, including the experiences relayed by Eileen Ailon; (

c) the statutory scheme within which I must consider C’s best interests; and (

d) relevant case law. [ 166 ] Turning first to the statutory scheme,

section 16 of the Divorce Act , RSC 1985, c 3 (2nd Supp ) informs my decision. Section

16(1) provides that: The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order. [ 167 ] Section 16(3) provides that: In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including (

a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; (

b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life; (

c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (

d) the history of care of the child; (

e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (

f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage; (

g) any plans for the child’s care; (

h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (

i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (

j) any family violence and its impact on, among other things, (

i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (

k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child. [ 168 ] Section 16(2) provides that: When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. [ 169 ] Family violence is a consideration in this case. Section 16(4) provides that: In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account: (

a) the nature, seriousness and frequency of the family violence and when it occurred; (

b) whether there is a pattern of coercive and controlling behaviour in relation to a family member; (

c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence; (

d) the physical, emotional and psychological harm or risk of harm to the child; (

e) any compromise to the safety of the child or other family member; (

f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person; (

g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and (

h) any other relevant factor. [ 170 ] Section 16(5) provides a lens through which the Court must view the past conduct of the parties. It states that: In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order. [ 171 ] In my attempt to address C’s best interests, I must be mindful of the maximum contact principle.

Section 16(6) provides that: In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is

consistent with the best interests of the child. [ 172 ] The Alberta Legislature has, in the form of the Family Law Act , SA 2003, c F-4.5 , enacted provisions that emphasize similar principles. [ 173 ] Dr. Singh advocates for a transition towards a shared parenting arrangement. In his view, such an arrangement would, if properly implemented, be in the best interests of C. [ 174 ] Dr. Singh’s concerns that Ms. C exhibits, to use his term, alienating behaviour, are part of the reason why he believes C’s best interests are served by increasing Mr. C’s parenting time at the expense of Ms.

C’s parenting time. [ 175 ] The issue, from Dr. Singh’s perspective, is whether Mr. C can evolve from an authoritarian parenting style to authoritative parenting. [ 176 ] At the time Dr. Singh issued his report, he clearly thought Mr. C had some way to go in modifying his parenting style and that he needed to avail himself of opportunities for professional assistance in modifying his behaviours. [ 177 ] Dr. Singh had not had occasion to re-evaluate his findings in the almost ten months since his PN8 Report.

He was not fully apprised of developments in parenting arrangements ordered by the Case Management Justice in the intervening period. He was not aware that Ms. C had obtained an EPO in respect of Mr. C in September of 2021. [ 178 ] Ms. Ailon’s evidence is useful in that it demonstrates that Mr. C is at least willing to make some attempt to come to grips with interpersonal issues that adversely affect his ability to parent C. [ 179 ] Ms. C’s principal request is to maintain the status quo. Mr. C would have only limited supervised parenting time with C. Mr.

C would have to demonstrate significant progress in coming to grips with what she describes as his abusive, controlling, narcissistic personality which manifests in an authoritarian parenting approach. [ 180 ] Her approach would involve a gradual and measured re-introduction of Mr. C into C’s life. In her view, it needs to be gradual because C’s relationship with his father is broken. [ 181 ] In juxtaposition to Ms. C’s request, Mr. C’s principal request is that he be designated the primary care parent. He would have decision-making authority in the event of disagreement.

His parenting plan would essentially reverse the current parenting and decision- making responsibilities. If he cannot be the primary care parent with final decision making authority he would accept a 50/50 shared parenting arrangement. [ 182 ] Mr. C’s justification for his position is that altering the parenting arrangement is the only way to address continued alienation by Ms. C. That is to say, whatever disruption and dislocation C might experience by such a dramatic change in parenting arrangements is more than offset by the benefits to C which would ensue from containing Ms.

C’s alienating behaviour. [ 183 ] I have two problems with that reasoning. First, it assumes that Ms. C is indeed engaging in alienating behaviour. That inference emerges primarily from the PN8 Report. [ 184 ] I noted above that, in my view, Ms. C, to some extent, advocates retaining the current parenting arrangement in retaliation for what she considers to be years of physical and mental abuse visited upon her and her children by Mr. C. That said, I also believe that she is genuinely worried about C’s physical and emotional well-being. [ 185 ] I believe she considers Mr.

C to be an inappropriate role model for C. I have some sympathy for her point of view. Audio/video evidence establishes that Mr. C is prepared to engage in abusive behaviour in C’s presence so that C will grow up understanding whose word is law in that household. Clearly, Mr. C has some work to do. [ 186 ] Her experiences with Mr. C, as revealed in the audio and video evidence, suggest that Mr. C suffers from profoundly dysfunctional interpersonal skills. He copes with stress by reacting in an abusive, bullying, demeaning and controlling manner. [ 187 ] Ms.

C, from her perspective, is simply trying to protect C from the damage that she believes Mr. C inflicted on her other two sons. [ 188 ] Ignoring the September 2021 EPO, the evidence of Mr. C’s abusive behaviour is becoming dated. However, I am troubled by his outright denial of ever engaging in abusive behaviour when the audio/video evidence clearly establishes the contrary. [ 189 ] I will return momentarily to the second reason why I believe increasing Mr. C’s parenting time at the expense of Ms. C’s parenting time is problematic.

But before I do, I think it is important at this stage in the analysis for the Court to step back from the PN8 Report and the evidence of Ms. Ailon and consider other possible explanations for C’s behaviour and that of his parents. [ 190 ] This is an important undertaking, especially if it helps shift the Court’s focus away from assigning relative blame for C’s challenges and towards a more child-focused understanding of those challenges. [ 191 ] In that regard, I have been assisted greatly by the observations of Dr.

Gary Kneier in his recent text entitled Parental Alienation: A Child Psychology Approach , ISBN-9798456944457 (self published). My inclination is to approach the issue of parental alienation from a “fault based” perspective. That is, one parent, in this case, Ms. C, has consciously set out to marginalize Mr. C’s attempts to carry on a relationship with C. [ 192 ] However, Dr. Kneier writes: Much has been written about the motivation, behaviour, and pathology in the alienating parent, who is seen as the principal cause of the

child’s reaction – total denigration and rejection of the alienated parent, and total allegiance to the alienating (favored) parent. The name “parental alienation” has stuck and is widely used to describe the phenomenon: page 6. Unfortunately, this way of naming and defining the child’s reaction has led to the misleading assumption that to prove the child is having this reaction you have to prove there is an alienating parent.

This generates great conflict and blaming, as the refused parent argues to prove the othjer parent’s alienating attitudes and behaviour, while the favoured parent ardently denies this and argues to prove the poor parenting of the refused parent: page 6. [ 193 ] Why is this assumption misleading? It diverts attention from the real issue. Dr. Kneier notes that the better approach is to focus on the child’s experience and reactions.

He comments: Looked at this way, the “parental alienation syndrome” is seen to be a psychological reaction consisting of unconsciously driven denial – a denial of the child’s real attachment to one parent . This denial reaction represents a solution by the child’s mind to the intolerable stress of attempting to maintain loyalty and attachment to both parents, who are engaged in intense conflict about the child.

While in some cases the child’s reaction is propelled by overt and malicious alienating behaviour by the favored parent, in many cases the parental conflict over issues involving the child is sufficient to cause the denial of attachment reaction: page 7. [Emphasis added] [ 194 ] Dr.

Kneier notes further: This approach that focuses on what is happening inside the child’s mind and heart leads toward constructive solutions and away from amplifying the parental conflict: page 7. [ 195 ] How do these insights inform the Court’s response to interpersonal conflict between the parties which may be manifested in C’s challenges? Dr.

Kneier notes: If the courts took the position that determining blame and weighing the evidence of each parent were not going to help the child, and instead focused on the child’s illness and its consequences, I believe it would unwittingly address many of the issues that perpetuate the child’s symptoms. It would not blame either parent for the child’s reaction. It would find fault only in the resistance to remedy the conflict for the sake of the child.

It would insist on treating and helping the child in the only way possible – by the parents undertaking treatment together to get past their conflict and learn how to cooperate in helping their child get past a very serious problem. In doing so, the court would do what therapists have always done: focus on the child and mobilize the one thing the parents have in common – love and concern for the child. It would help the parents exit the blaming and argument over truth, which only make the child’s situation worse: page 77 [Emphasis added]. [ 196 ] Decoupling from the blame game is attractive.

It helps to relieve the Court from the challenge of apportioning relative fault between the parties. It affords the Court an opportunity to potentially de-escalate tension between the parties by inviting them to make a mutual commitment to C’s recovery. [ 197 ] It should also help reduce both parent’s anxieties about the extent to which their own behaviours have led to perceived denial of attachment. Dr.

Kneier notes that: The predicament for the court, as for the child welfare agencies and child advocates and therapists in general, and for the favoured parent, is that the child’s symptoms present as a choice of the child. If the court were to recognize that the denial-of-attachment reaction is a true psychological symptom, unconsciously generated and deliberately maintained, and not really a choice , all parties would be encouraged to focus on treatment instead of determining blame.

It would help all to remember that the child must be protected from framing the denial reaction as a choice, but rather insist on cooperative treatment until the child’s denial can be slowly overcome and attachment to the refused parent re-activated: page 78. [Emphasis added] [ 198 ] I hope the parties consider Dr. Kneier’s observations very carefully. I hope they consider the possibility that C’s apparent alienation from Mr. C may not be entirely the result of efforts on Ms. C’s part to effect that result.

Rather, C’s detachment from his father may be C’s unconscious attempt to reconcile his love for each parent with the conflict and hostility which he sees them manifest towards each other. [ 199 ] My second concern regarding Mr. C’s request, to essentially reverse the parties’ roles and responsibilities when C has spent so little time in Mr.

C’s presence over the last three years, is that it manifests little appreciation of the implications to C of such dramatic alteration of the current parenting arrangements. [ 200 ] On the evidence before me, removing C from the primary care of his mother and vesting primary care in his father with no period of transition is untenable. The potential for damage to C is great. [ 201 ] The potential for damage to C’s relationship with his mother is significant. Vesting primary care and decision-making responsibility with Mr. C would empower Mr. C to mount a campaign to discredit Ms. C in the mind of C.

At this stage of his recovery from authoritarian parenting, and given his deeply held animosity towards Ms. C, I am not satisfied that he could refrain from mounting that campaign. [ 202 ] The potential consequences to C of failing to adjust to such a dramatic and sudden change in parenting arrangements are very worrisome. [ 203 ] But it is Mr. C’s willingness to even advance such a proposal that is particularly troublesome to me. It manifests a selfishness and insensitivity to the needs of his son that are worrisome. It is an extreme proposal that subverts his son’s best interests to what Mr.

C thinks are his. [ 204 ] In the alternative, Mr. C advances a 50/50 shared parenting arrangement. That is only marginally less problematic. It is premature.

[205] Case law casts doubt upon the wisdom of joint custody and shared parenting in high conflict cases: Young v Young, (SCC), [1993] 4 SCR 3. I note also the comments of the Alberta Court of Appeal in Bachor v Lehmann-Bachor, 2001 ABCA53. That Court adopted the following reasoning from Kruger v Kruger (1979), (ON CA), 11 RFL (2d) 52 (Ont CA) atparagraph 24: [Joint custody] requires a willingness by both parents to work together to ensure the success of the arrangement.

Such willingness mustbe sincere and genuine, by its very nature is not something that can be imposed by a court on two persons, one or both of whom may beunwilling or reluctant to accept it in all its implications. [206] In Richter v Richter, 2005 ABCA 165, the Alberta Court of Appeal noted at paragraph 11 that: First, as a general proposition, joint custody and shared parenting arrangements ought not to be ordered where the parents are insubstantial conflict with each other, and certainly not before trial especially when there is also significant disagreement on the evidence.The best interests of a child are not well served by imposing régimes which invite continued court applications on all matters, big andsmall. [207] As noted in VLM v AJM, 2021 ABCA 267, at paragraph 51: In 2006, in Lawson v Lawson (2006), (ON CA), 81 OR (3d) 321, 214 OAC 94 the Ontario Court of Appeal reiteratedits position that joint custody was not appropriate if the parents were unable to cooperate or communicate effectively.

The B.C. Court ofAppeal took the same approach in Stewart v Stewart (1994), (BC CA), 2 RFL (4th) 53, 41 BCAC 213 and Ness vNess (1999), 1999 BCCA 51, 43 RFL (4th) 363, 118 BCAC 292. [208] A contrary perspective was offered by Pentelchuk J, as she then was, in AJU v.

GSU, 2015, ABQB 6 at paragraphs 70-73. [70] Traditionally, Courts were reluctant to order a shared parenting arrangement where parents were unable to adequatelycommunicate or cooperate in matters of parenting: Richter v Richter, 2005 ABCA 165 at para 11, 371 AR 1. [71] But should a party be able to point to a lack of communication and cooperation to defeat an application for shared parentingwhen they are the significant source of the problem? [72] This issue was recently addressed by the Saskatchewan Court of Appeal in Ackerman v Ackerman, 2014 SKCA 86, 442 SaskR113.

At trial, shared parenting was ordered, despite the mother historically being the primary caretaker. The parents had drasticallydifferent parenting styles. The mother opposed shared parenting because of the conflict and acrimony between the parties but the trialjudge found that for the most part, the mother fuelled this acrimony and “ratcheted up” the conflict between herself and the father.

Theappeal was dismissed. [73] It seems inherently unfair to relegate one parent to access-only parent status when the other parent refuses to take steps toimprove their poor communication or because they insist on fuelling the acrimony. [209] In my view, on these facts, joint custody is premature. A 50/50 shared parenting arrangement is similarly premature. Currently,the parties are largely incapable of cooperating or communicating effectively.

Any form of joint decision making is, at this stage, askingtoo much of them. [210] It would not be practical to provide one party with sole decision-making responsibility while at the same time, allocateparenting of C between them on a 50/50 basis. [211] That is certainly an objective to work towards, with the assistance of a parenting coordinator who can address the parties’ issuesoutside the confrontational environment of a court. [212] Given C’s age, his relationship with his two parents and his need for stability, too much unsupervised parenting by Mr.

C at thisparticular point in time would be an abrupt alteration in his circumstances. A 50/50 shared parenting arrangement would be an even moreabrupt adjustment for C. [213] As for each of the parties’ willingness to support the development and maintenance of C’s relationship with the other party, Iseek to encourage movement towards a more cooperative environment.

I do not believe the parties will be successful in moving in thatdirection without the benefit of parenting coordination. [214] The history of child care supports a gradual and measured movement towards increasing unsupervised access and eventualshared parenting. [215] I am somewhat concerned that C really would prefer not to spend time with his father. I believe work needs to be done to allowC to grow comfortable embracing the prospect of time with his father. [216] I have no idea what Mr. C’s plans for child care are when he is at work. He offered no evidence in that regard. [217] Family violence is a concern.

Examining the considerations set out in section 16(4) of the Divorce Act, caution is warranted.Mr. C’s past treatment of Ms. C, BH and JH, as established by the evidence, requires this Court to exercise caution in granting Mr. C toomuch unsupervised parenting. The Court requires the input of a parenting coordinator who will be able to assess Mr. C’s progresstowards control of his temper, as well as Ms.

C’s willingness to embrace the prospects of shared parenting. [218] C’s physical, emotional and psychological safety, security and well-being would not be properly addressed by a significantchange in parenting arrangements at this time. Primary care must, for the foreseeable future, remain with Ms. C. [219] That said, in order for the evolution towards a 50/50 shared parenting arrangement to remain gradual and not be abruptly

imposed upon the parties, Ms. C must be willing to do her part to get the counselling she and C need. [ 220 ] I am well aware that Dr. Singh recommended unsupervised parenting time for Mr. C, provided he demonstrated progress in modifying his parenting style. I am also mindful of Ms. Ailon’s evidence regarding her sessions with Mr. C. [ 221 ] However, Dr. Singh’s recommendations are somewhat dated. He had little opportunity to update his understanding of the parties’ and C’s circumstances in the ten months since he issued the PN8 Report. Much of Ms. Ailon’s understanding of Mr.

C’s current attitudes and behaviours devolve from self-reporting on Mr. C’s part. [ 222 ] Applying the non-exhaustive considerations mentioned in section 16(3) of the Divorce Act to the determination of C’s best interests, on these facts, I find that the movement towards a shared parenting arrangement must be gradual and measured. Considering all of the evidence, while caution is warranted, I am comfortable allowing Mr. C limited unsupervised access at this time as an appropriate first step. Decision [ 223 ] My directions regarding parenting are set forth below. Parenting Time (

a) C will reside primarily with Ms. C. (

b) Beginning with the week of January 10, 2022, Mr. C will have Skype or Facetime access to C every Tuesday and Thursday evening. Ms. C will ensure that C initiates those calls, between 6:30 p.m. until 7:00 p.m. Calls will last not less than thirty minutes. Mr. C will have unsupervised parenting time with C beginning at 11:00 a.m. on Saturday, January 15, 2022 until 5:00 p.m. that day. The next weekend, he will have unsupervised parenting time with C beginning at 11:00 a.m. on Sunday, January 23, 2022 until 5:00 p.m. that day. This pattern of alternating Saturdays and Sundays shall repeat in subsequent weekends. Spring Break (

c) Beginning in 2022, Mr. C will have three days of unsupervised parenting time with C during Spring Break. Spring Break shall be defined to start at 4:30 p.m. on the Friday which is C’s last day of school and ends at 4:30 p.m. on the Sunday before C’s school recommences. Mr. C’s first day of unsupervised parenting time with C shall commence at 11:00 a.m. on the Saturday which immediately follows C’s last day of school and end at 5:00 p.m. that day. His second day of unsupervised parenting time shall be the next day, Sunday, from 11:00 a.m. until 5:00 p.m.

His third day of unsupervised parenting time with C shall commence at 11:00 a.m. on the following Saturday and end at 5:00 p.m. that day. Easter Break (

d) Easter Break shall be defined to start at 4:30 p.m. on the Thursday before Easter Friday and end at 4:30 p.m. on Easter Monday. Mr. C will have unsupervised parenting time from 11:00 a.m. on Easter Sunday until 5:00 p.m. that day. Summer (

e) In 2022, Mr. C’s parenting time shall follow the alternating Saturday and Sunday

schedule which I have outlined above and which is designed to give him parenting time each weekend. The current landscape does not justify departure from that regime. Decision-Making Responsibility (

f) Decisions regarding C’s health, his education, his culture, language, religion and spirituality shall be made by Ms. C. She shall advise Mr. C of her decisions. Decision-making responsibility shall include extra-curricular activities, provided that such extra- curricular activities must not interfere with Mr. C’s parenting time. Parenting Coordination [ 224 ] Dr. Singh commented that the parties require professional support in order to make changes to their parenting in accordance with C’s best interests.

He also noted that the parties require professional support as a mechanism to facilitate more productive co- parenting and to ensure their accountability to the changes each of them needs to make. [ 225 ] In my view, parenting coordination, and the counselling which the parenting coordinator will recommend the parties obtain, is essential if Mr. C is to have any hope of increasing his parenting time with C. It is also essential if Ms.

C expects to be perceived by the Court as constructively engaging in efforts to address C’s manifestations of apparent denial-of-attachment to his father. [ 226 ] The evidence of Dr. Singh and Ms. Ailon confirms that parenting coordination is required. [ 227 ] Why is that the case? Until the parties secure the counselling they each need to deal with their issues the prospects for cooperative parenting are very limited. In my view, the parties fail to recognize the damage their overt hostility to each other inflicts on C.

They fail to recognize that C’s apparent denial-of-attachment to his father is C’s unconscious reaction to that overt hostility.

[228] Unless assisted through parenting coordination, each of the parties will, as a consequence of their animosity towards each other,resist parenting suggestions made by the other. They simply cannot help themselves. [229] Furthermore, unless the parties are under the supervision of a parenting coordinator, I do not believe either one of them willpursue the counselling which Dr. Singh recommends they obtain. The Court is ill-equipped to undertake hands-on management of theparties’ ongoing journey along the path to meaningful changes in communication and parenting style.

The same goes for counsellingwhich C requires to deal with his psychological issues. [230] Hopefully, with professional assistance, the parties and C can learn new skills. [231] The parties must, to the greatest extent possible and with C’s best interests always in mind, be kept out of Court. Otherwise,they will be unable to insulate C from the animosity they will create through serial litigation. That cannot possibly be in C’s bestinterests. [232] Based on the history of this file, parenting coordination is necessary to determine if the parties are following the provisions ofmy parenting order.

The only alternative to ensure compliance with my directives would be to put this matter into case management. Thatallocation of scarce Court resources is not justified on these facts. [233] The parties have indicated a willingness to pursue parenting coordination. In her closing written submissions, in reference to mycomments at trial about the virtues of parenting coordination, Ms. C wrote: I believe this to be true and very helpful. [234] In his closing submissions, Mr.

C stated: I am more than willing to participate in parenting coordination, but I am concerned that it will be an expensive process that neither one ofus can afford long-term. More importantly, I in fact suggested a parenting coordination this past summer, who contacted Ms. C withoutbeing able to get a response from her. [235] However, the positive attitude which Mr. C demonstrates through these words is attenuated by the following comment: I have completed counselling as per the direction of Dr. Singh as evidenced by Ms. Ailon and my further attendance is unnecessary. [236] I have little doubt that Mr.

C has some distance to travel in coming to an understanding of the psychological basis for C’sapparent antipathy to spending time with him. [237] The parties are aware of the rules of engagement going forward. They are expected to follow them. Parenting coordination willassist in ensuring that they do and in imposing consequences if they do not. [238] Am I able to compel the parties into parenting coordination if one or more of them refuses to participate? May I, asrecommended by Dr. Singh and Ms.

Ailon, appoint a parenting coordinator and give that parenting coordinator certain arbitrationpowers? [239] The Court of Appeal of Alberta noted in Durocher v Klementovich, 2013 ABCA 115 at paragraph 15 that: The appellant objects to this last provision, arguing that the trial judge has no jurisdiction to impose binding arbitration on the partieswithout their consent.

The appellant refers to Practice Note 7, which specifically provides in para. 37.C that the Court can‘delegate decision-making to a Parenting Expert ... where both parties to the action have consented.’ The Practice Note obviouslyrequires the consent of the parties because it is a principle of access to justice that the parties can bring any dispute they may have to theCourt.

The Court has the jurisdiction to resolve those disputes, and it would be extraordinary to decline to decide, much less to compelthe parties to submit to a private adjudicator: Zacks v Zacks, (SCC), [1973] SCR 891 at pp. 906-7; Mainfroid vMainfroid, (AB CA), [1926] 3 WWR 617 at p. 618, [1926] 4 DLR 1060 (Alta SC, App Div). The power to grantcorollary relief given by the Divorce Act, RSC 1985, c. 3 (2nd Supp.) to a ‘court of competent jurisdiction’, does not permitthe delegation of that power to private arbitrators.

An obligation to submit to arbitration must be founded in a statute or anagreement: Sport Maska Inc. v Zittrer, (SCC), [1988] 1 SCR 564 at p. 588. [240] The same Court cited this passage with approval in Stuve v Stuve, 2020 ABCA 467 at paragraph 37. At paragraphs 38 and 39 itstated that: [38] Specific legislative language would be required for the court to have the power to require parties to participate in an extra judicialprivate process such as arbitration.

Further, delegation of the court’s decision-making jurisdiction to a non-section 96 court raisesconstitutional concerns: Zacks v Zacks, (SCC), [1973] SCR 891. [39] The parties commenced litigation in the publicly funded courts, and are entitled to access to court processes to resolve theirdispute. Citizens have a right to access to the court, which is the public dispute resolution institution. Ms.

Stuve has provided no authorityto support the proposition that the court can order the litigants to arbitration. [241] As if to anticipate the observation that allowing the parties unfettered access to the Court will consume limited Court resourcesthat should properly be deployed in relation to issues that really cannot be expected to be resolved by adults acting responsibly, the Courtof Appeal commented at paragraph 40 that: [40] Of course, neither the exigencies of the pandemic nor the shortage of judicial resources provides the jurisdiction to the courtsto delegate their authority to decide lawsuits commenced under the Rules of Court to private arbitration, absent legislative authority to doso.

[ 242 ] I would prefer to give the parenting coordinator certain arbitration powers relating to parenting time and decision-making responsibility. Doing so might reduce the parties’ need to come to Court when they cannot or simply will not arrive at a reasonable compromise. It might ameliorate some of the stress and anxiety the parties experience when preparing for their next Court appearance. That can only be beneficial for C. [ 243 ] However, I believe that, given the current state of the law in this Province, only the Court may make an order that operates to determine parenting time.

A parenting coordinator cannot be granted that power. [ 244 ] As for the exercise of decision-making responsibility, I fear that any attempt to distinguish significant from non-significant decisions affecting C, with a view to conferring responsibility for making what might be characterized as non-significant decisions on the parenting coordinator, will promote rather than discourage litigation. [ 245 ] I am satisfied, however, that I can direct the parties to work with a parenting coordinator.

Failure to engage in that process will afford a basis for a finding of contempt. [ 246 ] I am satisfied that I can apportion responsibility for payment of the parenting coordinator’s fees, including charging the parties’ interests in matrimonial property. [ 247 ] I am also satisfied that I may vest the parenting coordinator with responsibility for assisting the parties in their attempts to parent C effectively. That includes such things as the choice of a supervisor, reference to appropriate counselling for the parties and for C, facilitating Mr.

C’s access to health care and educational information regarding C and, most importantly, coaching with a view to de- escalating hostilities. My Directions Regarding Parenting Coordination [ 248 ] Immediately upon issuance of this Decision, the parties are directed to forthwith consult with Dr. Singh regarding the names of three Psychologists who, in his opinion, would potentially be willing and qualified to fulfil the role of Parenting Coordinator Arbitrator Psychologist (PCAP). If Dr. Singh is unwilling or unable to provide those names, the parties shall immediately consult Ms. Ailon. If Ms.

Ailon is unwilling or unable to provide those names, the parties are to notify me immediately through my Judicial Assistant. [ 249 ] No later than January 20, 2022, the parties shall advise me through my Judicial Assistant of the names of potential PCAPs provided to them as directed above. No later than January 10, 2022, the parties are directed to provide three potential PCAPs with a copy of this Decision. [ 250 ] When providing potential PCAPs with a copy of this Decision, the parties are directed to request each of the three individuals contacted to write to my attention, indicating: (

a) their willingness to serve as a PCAP; (

b) the basis for their charges for so acting; (

c) their availability to engage in this process; (

d) the form of parenting coordination Order they would seek to have issued by this Court. [ 251 ] The potential PCAPs should be advised that the Court intends to vest them with responsibility for advising the parties with respect to all matters that involve parenting, decision-making authority and appropriate counselling to address: (

a) Mr. C’s authoritarian parenting style; (

b) Ms. C’s alleged alienating behaviour; (

c) C’s need for professional assistance in addressing his educational challenges as described by Dr. Singh in the PN8 Report; (

d) C’s need for professional assistance in addressing his denial-of-attachment to his father; and, (

e) co-parenting communication; [ 252 ] The PCAP will not be vested with authority to alter parenting arrangements. However, I will expect the PCAP who is ultimately engaged to make recommendations to this Court when the PCAP believes that a party’s lack of effort or cooperation with the goals of parenting coordination necessitates a reconsideration of what is in C’s best interests. [ 253 ] Initially, the parties will be expected to meet with the PCAP monthly. The PCAP and the parties will, after the PCAP has been engaged for a period of six months, each provide the Court with a written report.

Those reports will contain the views of the party reporting regarding the successes and failures to date of parenting coordination and recommendations for modification of the PCAP’s mandate. [ 254 ] Those reports will assist the Court in determining if Mr. C and Ms. C are making bona-fide efforts to effectively co-parent C. They will inform the Court on whether a change to parenting arrangements is in order in light of a party’s unwillingness to engage in constructive co-parenting. [ 255 ] For the first six months, the parties will bear the PCAP’s fees and expenses equally.

If a party is unable or unwilling to pay their share of these fees and expenses, the other party is at liberty to pay that share. [ 256 ] If one party pays another party’s share of the PCAP’s fees and expenses, then the paying party shall, when division of

matrimonial property is ultimately determined by agreement between the parties or by Court order, be entitled to receive reimbursement for paying the other party’s share at the rate of $2.00 for every $1.00 paid in respect of the other party’s share. [ 257 ] Only to this extent do I purport to fetter the discretion of the Justice of this Court who ultimately decides the property division issue. [ 258 ] Clearly, the parties have an incentive to cooperate with the PCAP to the maximum extent possible in order to contain the PCAP’s fees and expenses, which otherwise would have been incurred as a consequence of a party’s non-cooperation. [ 259 ] The PCAP is at liberty to consult this Court for advice and direction as required.

Though I am not seized with this matter, I will endeavour, to the extent possible, to be the Justice who responds to the PCAP’s requests. [ 260 ] In my view, there is another good reason for engaging parenting coordination in an effort to keep the parties out of the Court. It is to avoid legal processes. Those processes tend to amplify parental fears and conflict: Kneier at 74. [ 261 ] The PCAP is directed to report to this Court as deemed necessary by the PCAP to inform the Court of the parties’ ability to implement the terms of this Judgment. I tentatively accept Dr.

Singh’s recommendation that a 50/50 shared parenting arrangement is ultimately in C’s best interests. The appointment of a parenting coordinator is a necessary step in the evolution of the parties’ parenting arrangements towards this objective. [ 262 ] Parenting disputes have consumed the parties’ lives for the last four years. They have interfered with C’s development. They have consumed scarce Court resources. [ 263 ] This must stop. In my view, the parties have one last chance to responsibly address their son’s needs.

They will do that with the assistance of a parenting coordinator and with the professional assistance which a parenting coordinator recommends be engaged. [ 264 ] If they fail in this endeavour, the parenting coordinator will be in a position to apportion blame, if there is blame to be apportioned. The Court will then be in a position to alter the parenting arrangements to reflect C’s best interests. Costs [ 265 ] Mr. C shall initially bear the cost of the PN8 Report and Dr. Singh’s costs of presenting at trial.

Upon division of matrimonial property, the parties’ respective shares shall be adjusted to reflect equal responsibility for these costs. [ 266 ] An Order implementing this Decision shall issue shortly. Heard on the 25 th day of October, 2021 to the 4 th day of November, 2021. Dated at the City of Calgary, Alberta this 22 nd day of December, 2021. C.M. Jones J.C.Q.B.A. Appearances: D. C., self-represented N. C., self-represented