AR v JU, 2021 ABQB 112

Court of Queen’s Bench of Alberta Citation: AR v JU, 2021 ABQB 112 Date: 20210211 Docket: FL01 17010 Registry: Calgary Between: AR Applicant - and - JU Respondent _______________________________________________________ Memorandum of Reasons for Decision on Use of CYFEA Disclosure and Final Order of the Associate Chief Justice J.D. Rooke _______________________________________________________ S. 126.11 Application Introduction [ 1 ] This action has a lengthy history starting in 2013, as referenced in other reported decisions, some of which are set out below.

Leading most directly to the decision herein, on November 5, 2019, the Applicant, Ms., AR, filed an application for an Order under s. 126.11 under the Child, Youth and Family Enhancement Act, RSA 2000 c. C-12 ( CYFEA ) [1] for “Permission from the court to use CFS [Child Family Services] [2] disclosure materials in support of my Application to be heard in a Domestic Special ... scheduled for February 21, 2020” (s. 126.11 Application), that arise from a CFS investigation started on November 23, 2018 pursuant to a “community member phone call” [3] .

Without a need to trace all the history between November 2019 (when I took over case management of this file, after Justice Horner recused herself) and today, a number of matters intervened, including Covid-19 in March 2020. That said, from the Court’s perspective, relevant to these Reasons, the steps within the Court include the following:

a) On May 4, 2020, Katherine Parker, a Level 3 Family Support Worker involved with AR and the boys, and some contact with Mr.,

JU, filed an affidavit, which dealt with much with the information discussed below and in Appendix “A” [4] referenced below. That Affidavit substantially supported the care that AU was providing for the boys. However, there is no issue here about the quality of care by AU, per se , but rather it is her failure to allow JU to have any effective parenting and access to the boys – complete control over the boys such as to effectively alienate the boys from JU, although the boys wanted him as a parent, as I perceived it, notwithstanding his behaviour in trying to make them pawns in his dispute with AU.

In this regard, she also noted how JU enmeshed the boys in the dispute between the adults and the court process and his unilateral demands. The issue for the Court was how to restrict JU on his harmful behaviours, and to recognize that AU was smothering JU out of contact with the boys. This required establishing a parenting scheme that could have both parents have full contact with the boys that was safe for them, in a way that, as much as possible, prevented conflict between the parents that might affect the boy’s health and development.

I determined that it required parallel parenting to accomplish this, with many strict conditions.

b) Thus, on June 22, 2020, I issued an Interim Order, as subsequently amended on July 15, 2020, while awaiting steps to finalize the decision after the s. 126.11 Application (see para 18 of the Interim Order) at which time I intended (as I signalled in the Interim Order) to provide reasons for both the Interim Order and Final Decision, which established parallel parenting, under very strict conditions which these Reasons do.

c) On June 24, 2020, by letter dated June 19, 2020, pertaining to the s. 126.11 Application, I received 572 “voluminous” [5] pages of the “original copy of all of the Director’s file” (the “Director’s File” or “DF”), and a redacted [6] copy of same (“Redacted Director’s File” or “RDF”) [7] , for the period from approximately November 2018 to April 2020 (precise dates of first and last reports not delineated herein as they are not all chronological), from Counsel for the Director under CFS, together with a proposed Order to “be used in the event the Court finds that the Director’s file, or a portion of it, is relevant, material and its disclosure necessary [8] to advance the position of the Applicant”.

The letter added that “ none of the material had been disclosed to the parties or the Children’s Counsel” (emphasis in letter) . In fact, to the contrary, I believe that much of the material was, in fact, provided to the parties (presumably under s. 126(1) of the CYFEA ), and in particular, AR, in the normal operations of CFS, because almost none of the material in the RDF is new to the Court in substance, only detail , from what AR (and in some cases JU) has/have brought forward before the Provincial Court or this Court in the various affidavits filed and submissions made since November 2018.

d) As the parties and Children’s Counsel needed access to the RDF to be able to make arguments as to whether the information therein, or any portion of it, was “relevant, material and its disclosure necessary”, it took some time to get the RDF officially to the parties. On July 17, 2020, an Interim Disclosure Order was issued for this purpose.

e) In the interval, on July 9, 2020, AR filed an appeal from my June 22, 2020 Interim Order, seeking relief that included that I be “recused”, although no application for recusal had been formally made against me at that time [9] , except a request for same, without formal application, evidence or argument on the legal tests, in para 7 of her “Argument Brief”, mentioned below.

f) Due to an error in the June 22, 2020 Interim Order and the need for some clarification, as noted above, I revised and reissued the Interim Order on July 15, 2020 (Amended Interim Order). The same date I issued my Memorandum of Reasons for Decision and Interim Order ( AR v. JU , 2020 ABQB 408 – “Interim Decision”) providing my reasons to that point, knowing that a decision on the s. 126.11 Application and resulting final decision were pending.

g) On July 13, 2020, Counsel for the Director provided a Brief to the Court and the parties (not filed with the Clerk) on the Director’s position and helpful submissions as to the law pertaining to the application.

h) Pursuant to my directions in para. 18 of the Interim Order, and following, AR provided an Affidavit which stands as evidence on its own (but also chronicles and purports to interpret the RDF she seeks permission to introduce to the Court, but which she did not yet have permission to introduce – the subject of this decision [10] ) and Argument Brief, both on August 7, 2020 [11] .

In the former, she sought production to the court record for this application of 25 portions of the RDF as identified in Appendix “A” hereto (for some of which she provided copies of the pages referenced, with highlighting, and for some, she, according to my office’s records provided no copies or highlighting, and thus I had to go to the RDF.

i) On August 31, 2020, Counsel for the Children filed a document called “Position Taken” advising that he did not object to the CFS file being admissible.

j) In response to the s. 126.11 Application and August 7, 2020 material of AR, on September 9 and 10, 2020, Mr (JU) filed an Affidavit and Argument Brief, respectively. JU Argument Brief takes the position that there are 3 applications by AR for release of portions of the RDF, but he concentrates on the November 5, 2019 application as articulated in AR’s August 7, 2020 Affidavit, as do I. JU also argued that the material on the RDF was provided by authors unknown, or, if known, not by affidavit or subject to cross- examination, and thus was inadmissible in any event.

Moreover, he argued that the material was based on comments of others, about events that the authors had not observed, and thus further inadmissible as hearsay .

k) On September 9, 2020, JU filed a Supplemental Affidavit (also in the Court of Appeal a day earlier) referencing DU’s emergency appendicitis surgery on August 21, 2020.

l) On September 25, 2020, the Court of Appeal ( 2020 ABCA 337 ) dismissed an application by SR to stay the Interim Order, pending appeal, noting that, after November 4, 2019, I had “granted a series of interim orders that gradually increased JU’s parenting time, which culminated in the Interim Order”.

m) On September 29, 2020, AR filed a Reply Argument Brief. [ 2 ] It is on this material, and the pages of the RDF sought to be placed on the record of this case pursuant to s. 126.11, on which I will, after referencing the law, analyze as to whether the requested RDF material is producible under s. 126.11, and if so, or in any event, the impact, if any, on my Interim Order and Interim Decision, leading to the Final Order issued as a result of these Reasons. [ 3 ] While working on the release of these Reasons, as hinted above, I have received a number of applications for leave to file

substantive applications, as follows:

a) September 29, 2020 (renewed on December 7, 2020 and February 5, 2021) - an application by AR seeking leave to file an application for an order that allows the parties to make further submissions to the Court just prior to the final decision, limited to new and emerging events/circumstances that occurred since April 2020. Response: I will deal with this more formally shortly, but that would relate to a substantial new circumstance, whereas the Final Order herein is based on the circumstance that existed on July 15, 2020, affected only by the s. 126.11 Application, which has not changed the substance of the Amended Interim Order of the same date, except to add or amend some conditions.

b) September 29, 2020 (renewed on December 7, 2020 and February 5, 2021) - an application by AR seeking leave to file an application for my recusal.

c) December 4, 2020 – an application by Children’s Counsel for leave to withdraw – this is affected by the subsequent applications by Children’s Counsel below.

d) January 18, 2021 – no application for leave with supporting materials, as is required for a substantive application, but a request by AR for a case management hearing, related to a copy of a letter that JU wrote to the children, again embroiling them in the litigation.

e) February 3, 2021 – an application for leave by Counsel for the Children seeking to bring applications to change parenting, registration for extra curricular activities, a Voice of the Child Report to be ordered, and a repeat of his December 4, 2020 application for leave to withdraw.

Aside from my brief responses in this paragraph, I have reviewed these applications and find that the entitlement to leave and, if granted, the substantive applications, need not be determined before the release of these Reasons and Final Order, but will be reviewed shortly and my decision as to process and/or substance will be announced in the near future. One or more of these engage the issue of a substantial change in circumstances discussed at the end of these Reasons.

Summary of the Analysis [ 4 ] Before moving on to discuss the analysis that follows, I have now circled back, after having completed that analysis, to reflect on the comments of Counsel for the Children that he did not object to requested DRF going being available to the Court. [ 5 ] In one sense, I agree with him, as there is nothing objectionable to the production (as between AR and JU), but, in both a legal and a policy sense, I do not agree with him.

There is nothing in any of the RDF record that I have read that, in one sense, should not be available to the Court – even in a broad sense, if only for background. It is generally, if often minimally, relevant, even though not really material to most of the real issues of parenting [12] , which is the only real issue in this case.

To use the definition adopted by Cornfield, P.C.J. [13] , generally, I do not find any of the information would directly “significantly help determine and issue raised in the pleadings”. [ 6 ] However, nothing reported therein would cause me to change my Interim Order or my Interim Decision – indeed, the contrary, as it reaffirms both in my mind. Put another way, adding this material to the court record, provides no “smoking gun” that would cause me to change what I ordered in the Interim Order, and what I will now confirm herein.

The reason for that is that there is nothing therein, with a couple of minor exceptions, that was not directly or indirectly substantively contemplated in my Interim Order and Interim Decision. That is, 99.9% of it is already in the affidavit material of the parties and Ms.

Parken and, focusing on the key test, AR has not, with a couple of minor exceptions, met the onus of establishing that it is “likely necessary” to present her case. [ 7 ] However, even more important than that finding, there is a policy component behind this law, namely that the courts should not be encumbered in making decisions about parenting entitlement with hundreds of pages of barely relevant, lukely warm materiality, and unnecessary volume of often repetitive reporting, every time that CFS investigates children, and the Court is required to set a parenting program.

It is a huge and unnecessary drain on judicial resources (a couple of hundred hours in this case alone), and a finding that it would “create no harm” (assuming kept sealed on the court record from outsiders, including the children) is not the determining factor. Thus, in my view, rather than a shotgun blast of what I repeat are barely relevant information, with lukely warm materiality, at best, and no proven “likely necessity”, the default should be to exclude the information from the court file.

In other words, if the Applicant does not meet the legal test of releasing the record, as she largely has not here, with some minor exceptions, that should result, as it does here, in the substantial dismissal of the application – again with some exceptions. [ 8 ] In this process it should be understood that the delay in issuing a Final Order, was to see if this s. 126.11 Application would produce portions of the record containing new, necessary, relevant and material to parenting, that would have an impact, if any, on the Interim Order.

In the process, the parties have had a huge opportunity, and have used it, to raise any issues with the Interim Order becoming Final.

This is indirectly recognized by AR (at para 40 of her Reply Argument Brief), while making another point, “most of which have nothing to do with the CFS record at all....”, and, at paras 70-80, relevant to other issues raised by JU (and AR’s responses thereto) – such as his Supplemental Affidavit filed with the Court on September 9, 2020 - all seeking to have an impact on supporting or refuting the Interim Order, regardless of the RDF. [ 9 ] To foreshadow the resulting conclusion, I find that there is nothing in all the submissions of the parties since August 7, 2020 that would cause me to change anything of substance in the Amended Interim Order or Interim Decision.

Rather, those submissions merely reinforce my view that the Amended Interim Order should be made final, with minor adjustments, as I will formalize at the end of these Reasons. Law Applicable to s. 126.11 Application

[ 10 ] As I indicated in the first footnote above, these Reasons are not intended to be a comphrensive and learned dissertation of all of the law on s. 126.11, although, through research, and with thanks especially to the Counsel for the Director, there are a relatively large bank of cases that pertain to it that I have reviewed in preparation for determining this application. I will refer to some of them. [ 11 ] The law on s. 126.11 applications is set out definitively by my colleague Lema J in KM v.

LGN , 2020 ABQB 197 , referencing several other decisions relevant to aspects of such applications, including JE v. Alberta . For the purpose of these Reasons, I adopt and apply KM v. LGN completely, without finding a need to reference its provisions in any detail. To the best of my knowledge, it is the last written decision on the substance of this

section in Alberta. Simply put, KM v. LGN provides that to be released for use in a court proceeding, after considering the factors set out in subsection 129.11(8), the material on the RDF must be relevant, material and its disclosure “likely necessary to advance” the applicant’s acknowledged position on an issue before the court. In this case the issue is parenting of two, now 11 (December 28, 2009) and 9 (June 27, 2011) year old boys, MU and DU. Relevance and materiality need little to no discussion, beyond the decision in KM v.

LGN . “Likely necessary”, means, as set out a para. 44 thereof, not “available by other means” – similarly see paras. 27 – 31 of JE v. Alberta . It is a higher requirement than “relevant and material”: KWS v. CRD , 2018 ABPC 238 (Cornfield, P.C.J.), especially, as Counsel for the Director in her Brief recognized that the records “nearly always contain information that is relevant and material to the issues” – which I would qualify with the words “generally” or “to some extent”. Other cases on “likely necessary” include: S. (L.) v.

B. (J) , 2015 ABPC 50 . – production declined when the benefit to be advanced to the parties was equal – applicable here; EG v. Alberta , 2019 ABPC 143 – granted where not otherwise not available, except from the CFS record; and T. (E.) v. Rocky Mountain Play Therapy Institute Inc ., 2016 ABQB 108 – allowed to show opinion of CFS - however, as Counsel for the Director acknowledged, there are no CFS experts here that opine – otherwise, I would expect that could be achieved by calling in person or by affidavit a witness(

s) from CFS, and/or cross-examining them, not done in the case at Bar. [ 12 ] The issue in the litigation for which disclosure is sought ( JE v. Alberta , at para 22) is parenting. The issue is a broad characterization, requiring a “wide-ranging inquiry”: B. (K.J.) v. C. (C.M.) , 2011 ABQB 240 (Nation, J.) and K.A. v. B.D ., 2011 ABQB 513 (Martin J., as she then was). [ 13 ] By the provisions of the CYFEA , I must consider all the factors of s. 126.11(8) , which I have done, but won’t enumerate completely, other than what I have said above, and a couple of other observations.

Section 12s (8)(c), as to a “fair hearing”, goes without saying, but fairness should relate primarily, in my view to the treatment of the children, not the battling parents who seem in this case to have forgotten the goal of best interests of the children. Subsection (8)(

d) appear to relate to the care of the children by the “director”, which doesn’t arise in these circumstances. Subsection (8)(

e) is very relevant in providing “the need to not delay matters affecting a child” – delay was the situation with the stalemate between the parties leading up to the Interim Order, and one of the reasons for it. However, this 126.11 Application has also delayed the Final Order herein for no real benefit to anyone, with a need for an extensive review of the record of at least 25 sections of the 572 pages of the RDF, a factor under ss. (8)(g).

Redacted Director’s File Sought [ 14 ] The 25 portions of the RDF that AR (with emphasis on the parts she highlighted) seeks to be available on this record, her reasons, JU’s response, and Children’s Counsels comments, and my analysis is moved to Appendix “A” hereto because, as I noted earlier, it deals with details that don’t need to take space inside the primary text of these Reasons, while still a part and basis for same by reference. [ 15 ] In my analysis, I have not referenced much, if any, positive material in relation to AR only for two reasons: she has had the opportunity of providing such information in the hundreds of pages of the affidavits and written arguments she has made; and her parenting, per se , is not in issue, as I have described above and in Appendix “A”.

Thus, such self-serving material in the RDF in her favour does not meet the test that it is “likely necessary” to be provided because it is otherwise available, and is not addressing a matter in issue.

Simply put, it is not her care of the children that is in issue in this Court’s decision on parenting, but rather her role in the dispute between the parents, who cannot set aside their absolute hatred for each other, and resulting unwillingness, to meet the needs and interests of the children – thus, the only alternative, as introduced in the Interim Order, now finally confirmed herein, was/is to allow the children access to both their parents, through parallel parenting under strict conditions. [ 16 ] Having read all those parts of the RDF sought to be released to the Court Record by AR, I set out in Appendix “A” an overview of what appears in detail in the referenced documents, namely: a tremendous amount of repetition; very little disclosed material that is different from what was brought to the Courts attention by the parties in affidavits or oral hearings prior to the Interim Order; no disclosure of short term harms to the children, but longer term concerns are expanding into problems that (at the time of the Interim Order) needed to be immediately nipped in the bud, before further harm could take place.

In one sense, reference by all Courts to the material sought, relating to these parents, provides a background to the dispute and the potential solution this Court is trying to achieve.

However, in the strictness of the test for production of the record, while much is generally relevant, but very little material to an extent, none of it is really “likely necessary” as it is not new from what is already before the Court, or able to be communicated by AR, as she had done, apparently on access to the DF (see reference thereto at para. 53 of AR’s Affidavit), and unauthorized use (s. 126.11 is the way to get legal authorization) of it in proceedings to this date.

Therefore, the material in the RDF sought to be released to the court file by AR, with a couple of exceptions, will not be released. [ 17 ] The exceptions include the following five passages of the RDF, as identified in Appendix “A”, the following pages, with noted exclusions:

a) p. 342;

b) p. 513;

c) pp. 509, first two sentences only;

d) pp. 518 – 519, excluding the

schedule that follows; and

e) p. 531. [ 18 ] Counsel for the Director is directed to prepare a specific Order, with these passages attached, to provide this information formally to the Court for its consideration in the within Final Order, as I have already done, subject to such conditions as Counsel for the Director and the Court approve. The approval of the parties, and Children’s Counsel, under Rule 9.4(1) (c), will not be required.

Other Evidence and Argument of the Parties Relating to s. 126.11 and the Final Order [ 19 ] There is other material in the affidavits and written arguments of the parties and Counsel for the children, that I will now analyze herein and in Appendix “A”. AR’s Affidavit [ 20 ] The AR Affidavit, affirmed on August 7, 2020 (but yet unfiled – see above), in addition to addressing the RDF discussed in detail in Appendix A, has a number of additional “submissions” (I use this term, because, with some exceptions, they are not statements of fact, but, rather, argument). JU’s Actions [ 21 ] Paragraphs 29 – 32(

f) of AR’s Affidavit deal with JUs actions. Again, much of this is opinion or argument, not facts, but considering that AU is a SRL, I will try to give her the benefit of the doubt on matters that have a resemblance to facts – as to the things she did (which were never really in question, as to the care of the children).

However, her control over the children to the exclusion of JU, and the resulting alienation of JU vis-à-vis the children is another issue. [ 22 ] In para. 29, she opines that “The CFS materials show that most of the concerns were related to Father.” That is substantially true, as JU’s behaviour has been rather bizarre, including: refusing to cooperate with either AR or CFS in any material way – e.g. he did not take steps that CFS wanted him to take in essence, would not engage to do what either wanted him to do, including things that appeared to be in the children’s interest (e.g. cooperating in the children’s activities, because, from his point of view, they were ones that AR completely dominated in all ways); refusing access when it did not meet his unilateral conditions, including insisting on 50%/50% (or, occasionally 46%) parenting (including, enmeshing the children in preparing 50%/50% schedules, and other court processes), or in the polar opposite strange alternative, only 2 hours per month or no access to him); refusing to share items (clothing and educational/recreational and personal material with AR - all such items from her home was put in a “bin”); some aspects of his physical discipline of the children; his attitude to their French language schooling; etc.

However, the bottom line is whether there were non- reversable safety issues that could prevent JU from having a parenting role, if appropriate conditions were imposed. The answer, I find, with a caveat (regarding enforcing existing conditions and adding new ones, which I will delineate below and in the Final Order), is that there are not. [ 23 ] However, AR, in the same paragraph 29, acknowledges that some concerns “related to me”, and later in the Affidavit she addresses what she claims she did to correct these.

However, the point keeps being missed by both parents, and CFS in all its material, that it is not the manner of parenting that is in primary issue, but the inability of the parties to share parenting in any constructive way. [ 24 ] While, to be clear, AR’s manner of parenting per se and the children’s safety is not in issue in her presence, and while JU’s parenting has some inappropriate methods and manifestations, and some of those need active and continuing prohibitions for their safety and wellbeing, the children’s safety, per se , with appropriate conditions in place, is also not in issue when they are in his care.

Long term consequences of the parenting of the children by both parents required initial intervention by CFS, and that intervention was lifted when CFS had “determined that measures have been taken to protect the children” (see opinion of AR in para. 36 and the last sentence of para. 38 of AR’s Argument Brief). [ 25 ] In para. 32, AR raises JUs behaviours, which invites some response from the Court:

a) JU wants “complete segregation of the children’s homes, “complete compartmentalization” [parallel parenting]. Response: whatever his motivation, that is the appropriate result, as I found, for reasons set-out earlier in my Interim Order and Interim Reasons for same, and which I now confirm.

b) JU continuing, in spite of admonition by CFS and orders of the Court banning him from doing so, to show the children court documents and draw them into the dispute between the parents, on the false claim that anything other than doing so are “lies”. Response: This is one of the worst, and still prevalent, traits of JU, and was continued recently in defiance of express stipulation of the Interim Order. It is, in fact, contempt of court, although not specifically sought or found by the Court on any application for same. However, if it were found, what is the appropriate remedy?

A change of parenting, jail, a fine to the Clerk under Rule 10.49, or other? None of these are in the best interests of children, because each would deprive the children, not JU. Nevertheless, if there are any more incidents of same, one of these, or some other remedy, will be found to punish JU, for the purpose of encouraging a change, for the long- term potential harm that this may be causing to the children. c) “His belief that the children should be afraid of him” and actual, or threats of, unacceptable physical discipline.

Response: I believe that the use of “fear” was merely his way of expressing a wish to be a strong disciplinarian, which is acceptable (with limits), and often needed for children, but that does not include unacceptable physical discipline and that is strictly prohibited by the Interim Order, and, no lack of compliance has been reported to my attention since.

d) Refusing to keep the children in appropriate overnight accommodation with him, even when approved by CFS, but rather preferring to keep them in his van in a city mall parking lot. Response: while the van may be appropriate for seasonal recreational camping outside the city (which JU and the boys seem to enjoy), it is not appropriate for normal city accommodation and has been so directed in the Interim Order, and will remain.

e) His telling the boys to not talk to CFS – threatening them with denial of access to JU if they did. Response: while inappropriate, that is now “water under the bridge” for which no real harm has come to the boys. However, going forward, until the boys each reach the age of majority, they need to know that if they are concerned about their care and safety in the company of JU (or AR) they are absolutely entitled to report it to Children’s Counsel and/or CFS. The Final Order has an added condition to this effect.

f) He told the children to run away from AR. JU addressed this at paras. 42-44 of his Argument Brief, denying that he instructed them to “run away”, but acknowledging the “vote with their feet” expression, quoting two cases: SJB v. RDBB , 2019 ABQB 624 , and Raugust v. Raugust , 2018 ABCA 30 . Response: advocating this behaviour when they are in AR’s (or either parent’

s) care is unacceptable, but there is no additional evidence necessary because AR has reported this before the RDF was provided. However, this matter is closely related to (

e) above as the reasonable alternative to the children fearing for their care of safety with either parent. In result, the Final Order has an added condition to this effect, to intersect with the condition to be added in (

e) above. AR’s Behaviours [ 26 ] In paras 33 – 38, AR acknowledges some relatively mild inappropriate behaviours on her behalf, and what steps she took to try change, concluding that “there is ample evidence that CFS is entirely satisfied with my parenting”. JU attempts to refute that at para. 36 of his Affidavit in reference to her “loitering” at his residence on the August 3, 2020 pick-up of the children by AR, but those are new allegations since the Interim Order, that are not the subject of a specific application [14] , and, thus, I will not entertain them at this time.

Response: The Interim Order prevents such discussions about parenting matters and court issues with the children by both parents, and the Final Order will continue that. On a broader scale, however, as I have said before in these Reasons, AR’s parenting per se is not the issue, but what AR and CFS both refuse to recognize is that it was/is AR’s, conscious or unconscious, insistence on dominating all aspects of the children’s lives to the effective exclusion and alienation of the children from JU, which I found and continue to find requires parallel parenting.

With parallel parenting, as set in the Interim Order, and to continue in the Final Order, the opportunities for either parent to continue to do this (discussing parenting matters and event issues with children) is minimized, with all aspects of the parenting to be a substantially equal, but separate, opportunities for each parent to parent the children without interference of the other. Proven contempt of the Court’s orders in this regard are serious and could be the basis for contempt applications, if leave were to be given, as addressed at the end of these Reasons.

Steps Leading to Hearing the s. 126.11 Application [ 27 ] AR uses paras. 39 – 67of her Affidavit to complain about the process leading to this paper hearing of this s. 126.11 Application and to criticize my role in it. However, most of those complaints are now “water under the bridge” with these Reasons, and the analysis herein.

Whatever the merits of that criticism, that may be for the Court of Appeal to review, to the extent relevant, in the appeal she has already filed, and the one that she is likely to file after these Reasons, and I will not use this forum to try to rebut her arguments, nor would it be proper for me to do so. That said, I will add a few relevant comments:

a) It was necessary to get the DF, and more particularly the RDF, before this Court in a proper way, with the right to the parties to review same and make submissions, rather than for them to rely on those portions of the DF informally released to the parties, but not to the court. That was not done by AR, but accomplished by the Court by the Order of July 17, 2020.

b) In reference to the hearing of November 14, 2019 (para. 43 of AR’s Affidavit), that was not a hearing set to debate the merits of the 126.11 Application, but rather to speak to the procedures to address the merits of the Application.

c) The status of the Provincial Court Supervision Order, mentioned in para. 45 of AR’s Affidavit, was an issue until formally terminated – originally granted on April 17, 2019 on an interim basis, without evidence before the Provincial Court of its need (see para. 32 of JU’s Argument Brief), although I find that it was, in essence, a protective Interim Supervision Order pending investigation [15] and evidence before the Provincial Court – the latter never heard. Rather CFS sought a Provincial Court Order to terminate the Supervision Order on November 15, 2019, and was formally terminated on that date.

JU asserts (para. 12 of Argument Brief) that CFS did so because “as Ms. Iredale submitted to the Court, [CFS] had concerns that they were doing parent’s “dirty work”, which I understand to mean getting CFS unnecessarily in the details of purely parenting disputes, many petty and none very high on the scale of child harming or lack of child safety. Nevertheless, this was a step that was necessary to clarify the jurisdiction between the two Courts over any s. 126.11 application.

d) In reference to the CFS position on the DF and RDF, discussed in paras. 50, 64 and 66 of AR’s Affidavit, it was not really clear to the Court what that position was (before the June 24, 2020 delivery by Counsel for the Director’s of the DF and RDF, and clearer with her Brief on November 13, 2020), with what the Court considered to be non-specific and sometimes contradictory statements made by Ms. Iredale. Equally, it was unclear in AR’s Affidavit, exactly what parts of the RDF were being sought [16] .

The Court had hoped that some parts might be produced by Court Order, based on consent/agreement, but when that was not possible because neither CFS nor JU would agree, the Court proceeded to the more formal process, requiring a formal s.126.11 Application to be able to use the CFS disclosure in this action (referenced in para. 56 of the AR Affidavit), accomplished by the Court’s Order of July 17, 2020, by having CFS provide the DF and RDF to the Court, and the latter to the parties, as a basis on which the s.126.11 Application would be heard.

e) As to “transition” and “need for a hearing” of the s. 126.11 Application, referenced in, inter alia , paras. 51, 52, and 55 of AR’s Affidavit, indeed, it was the Court’s hope that a solution by agreement of the parents for the parenting of the children would be achieved, until it became apparent that such a hope was naive – indeed, hopeless - resulting in the Court’s belief in the immediate need for and issuance of the Interim Order, without the delay necessary to hear the s. 126.11 Application first, which was scheduled thereafter for determination in writing prior to the Final Order.

AR’s Argument Brief [ 28 ] In further support of AR’s s. 126.11 Application and her Affidavit, AR submitted an “Argument Brief”, dated August 7, 2020 (but not yet filed as noted and directed above) as was authorized.

I will deal only with some of her arguments, because most are a mere repetition of arguments and opinions (not facts for which affidavits are intended) raised in her Affidavit, or arguments that may be made in the Court of Appeal on her appeal. [ 29 ] At paras. 2 and 3, she submits that the 126.11 Application has already been decided by the Order of July 17, 2020, because “we have already received the disclosure material in their entirety from CFS” and that this hearing is merely for “the purpose of determining the admissibility (relevance, materiality, necessity), as evidence, of the CFS disclosure materials”.

However, she failed to recognize that receipt of the materials was just so the parties could review same and make submissions in this 126.11 Application, none of which will be allowed on the record for consideration in the merits of this case, except so far as allowed in this Decision, although, to be clear, as I have repeatedly said, much has already been disclosed on the record of this case, primarily by AR. Thus, both the receipt and the subsequent submissions are all part of the s. 126.11 Application, the decision respecting which is now made in these Reasons.

Admissibility, on the other hand, is a different matter and, in law, is left to the judge hearing the substantive matter ( K.A. , at para 7 ), which, in this case is also me. [ 30 ] At para. 7, she asks me to recuse myself, which I have addressed somewhat above, but, as also noted above, I had not received an application for leave to file a formal application for recusal, evidence and submissions in respect of same, until September 29, 2020, while I was seized with the substance of this s. 126.11 Application for decision.

Thus, I will not respond to that leave application herein, but will after these Reasons and the Final Order are released. Moreover, by the time that these Reasons and the Final Order are released, there are no more substantive applications before me for which I am now seized. Matters for leave for new substantive applications, such as leave to file an application for recusal and other for an alleged change in circumstances, will then be considered. It seems that one process does not ever get completed with AR before she starts another, and I will finish the one in progress in these Reasons and Final Order first.

If leave is granted and applications(

s) allowed that requires changes that are appropriate to this process now entrain (these Reasons and Final Order), those changes can follow same.

I will also further address the limits of leave at the end of these Reasons. [ 31 ] I agree with the essence of the submissions of AR, at para. 47 of her Argument Brief (although not precisely in these words), that the terms of the Interim Order, and now this Final Order, are for the “express purpose of putting in the ... conditions to help protect the children from” the different, but both inappropriate parenting methods and traits, of both parents. [ 32 ] However, contrary to what AR asserts at para. 68 of her Argument Brief, this whole case before this Court since November 2019 has always been precisely “ about getting two, antagonistic parents in a high-conflict separation to find a way to get along and come to an agreement for the sake of the children ” (emphasis added), but still an elusive goal.

JU’s Affidavit [ 33 ] JU filed an affidavit in response to AR on September 9, 2020 (JU Affidavit). [ 34 ] At para. 3, he provided a transcript (authenticity not verified, but assumed for this purpose - an audio recording is offered) [17] of the meeting between JU (and his brother, Dr. BU) with CFS on October 22, 2019, referenced as p. 416 of the RDF and discussed in the Appendix A regarding AR’s Affidavit at (15). I will not address all aspects of the discussion, because they are dealt with in other places in these Reasons, and in the Interim Order.

However, I will address some aspects. [ 35 ] In the transcript, referenced at para. 3.

a) of the Affidavit, there is discussion about guns being in the camper when going out hunting or in the country, and the regulations that JU says he follows – no ultimate concern expressed by CFS after the discussion. [ 36 ] There is discussion, at p. 3, line 26 to p. 4, line 10, about the van, its facilities and its utilization, but, at p. 7, lines 56 to p.8, line 6, and p. 12, lines 7-10, and 39, CFS reports that it no longer has concerns about the van.

However, the Court has made it clear in the Interim Order, and confirms for the Final Order, that the van is not appropriate accommodation for normal living, but only acceptable for recreational camping. [ 37 ] There is a discussion in the transcript, referenced at para. 3.

a) of the Affidavit, about gradual reintegration of access between the boys and JU, where he says he will only do so with a Court Order that avoids “uncertainty” and constitutes a “fixed plan” (p. 4., lines 42-59). It is made apparent (p. 5, lines 20-33) that he had a concern about CFS monitoring without a final court order. The process in Provincial Court did not proceed to such an order, as the Supervision Order was terminated. One or more court order(

s) have been since granted in this Court for parenting purposes, including the Interim Order and now the Final Order. [ 38 ] At p. 5, line 48 to p. 6, line 10, JU also makes clear that he does not wish to co-parent with AR or “have anything to do with her”, but rather wants parallel parenting, which was granted in the Interim Order, not because he wanted it, but because the Court was of the view, and remains so, that is the only effective way for these parents to operate in the interest of the children. [ 39 ] There was discussion, at p. 6, line 12 to p. 7, line 41 (see also para. 61 p)), about the parents discussing parenting and court issues with the children, which the Court finds to be improper – Counsel for the Director says in her Brief that it goes to JU’s credibility in his “inability to understand the impact of his actions and unwillingness to stop discussing court matters in front of or with the children” – a matter that the Court continues to try to prevent, on punishment by contempt for breach of such requirements in the Interim Order, and now continued in the Final Order.

It is the reason that Counsel was appointed for the children, and the parents were directed in the

Interim Order not to continue these discussions, but rather to refer the children to their Counsel. However, as we see herein, JU seems to continue to disobey the Interim Order in this regard, as recently as within the last couple of months (see below), which is both improper and prima facie contemptuous, as I have discussed herein. Bottom line, it will not be allowed by the Court. [ 40 ] JU, at paras 14-15 of his Affidavit, references alleged failure of AR to respond to DU’s stomach pain and resulting appendix surgery in August 2020.

While the Interim Order gives only one parent, AR, responsibility for regular medical and dental care, it is also clear that each parent has the right – indeed, the duty – to deal with emergencies, which it was/had become when JU dealt with it. JU raises further issues about the children’s medical and dental health in paras. 22 to 34 of his Affidavit, but most of his allegations have been dealt with in the Interim Order. I will not change the Interim Order, or Final Order, on this account, with no specific application by JU for changing same.

In any event, it does not, at worst, seem to be an issue that merits a fundamental change in the parenting, as I will address at the end of these Reasons – at most it would change regular medical/dental care. However, his entitlement to the receipt (only) of children’s medical records from the treating/referred professional , subject only to payment of reasonable copying disbursements , will be maintained. [ 41 ] JU reports, at paras. 16 and 17, and Exhibit C of his Affidavit, about AR loitering at his residence on August 3, 2020, when picking up the children contrary to para. 1(

b) the Interim Order. The Court will not deal with this allegation except to say that any breach of the Interim Order is a matter that will not be continenced and is a potential basis for a finding of contempt. [ 42 ] At paras. 20 to 21 (referencing back to para. 18) of his Affidavit (see also para. 61

g) to

i) of the Affidavit), JU refers to pages 15 -24 of the CFS RDF regarding the Intake Form from November 23, 2018 which suggested to him concerns about physical or sexual harm, although he notes that the “CFS records do not include any discussions of sexual abuse and physical injury”, and in his Argument Brief, at para. 5. d), asserted that, on November 15, 2019 before Judge Cornfield, Ms. Iredale, CFS Counsel, advised the Court that “CFS never had any concern that JU was sexually abusing or physically injuring the children”.

These allegations and assertions have been referenced and discussed at other places in these Reasons and in Appendix A, and, other than reference to physical disciplining, there are no apparent final concerns by CFS, only allegations about JU’s perceptions.

I have concluded that the discussion of any sexual impropriety (none established) will end here, but I will maintain the ban on corporal punishment in the Interim Order and the Final Order, without further comment on these further representations. [ 43 ] JU raises many other issues in dealing with past disputes [18] before the Interim Order, of which the Court was generally aware from previous submissions of the parties, but are now raised again in the continuing battle between the parents, with no attempt by either to move forwards in the time, and in the spirit of the Interim Order.

However, those issues are specifically and/or directly or indirectly dealt with in the Interim Order, and are thus “water under the bridge”. Accordingly, the Court does not need to further engage with the Interim Order in place, and confirmed and expanded by the Reasons herein.

However, if there are any further need for Court Orders beyond what is in the Interim or Final Order, a parent can apply for same, with leave of the Court, as addressed at the end of these Reasons. [ 44 ] Discussions of proposed, but refused, settlement (JU’s Affidavit, paras. 48-51), even if not “without prejudice” are irrelevant, because no settlement happened and the Court had to decide all the issues in dispute in the Interim Order and Interim Decision and these Reasons. [ 45 ] JU’s references to interaction with the boy’s school since the Interim Order (paras. 57-60) seem positive and encouraging and does not need any response. [ 46 ] JU makes a detailed response, (paras. 61.

a) to .

t) and 62.

a) to e)), to passages of the RDF that AR wants produced for use on the record of this proceeding. First, he argues that much of those are hearsay, were created more than a year ago, and some are from sources other than represented by AR. Unless noted below the following specific notations by JU are no longer helpful, beyond what the Court has noted in Appendix A – where otherwise, I have referenced his comments. JU’s Argument Brief [ 47 ] As noted above in the chronology, on September 10, 2020, JU filed his Argument Brief.

Much of it is repetitive of what he says in his Affidavit, so I will try not to repeat that, unless there is a new nuance. [ 48 ] He opines that AR wants to use the RDF references as truth of their contents, whereas much or most, he argues, are not so admissible because of hearsay [19] , reported by authors unknown, or not under affidavit nor cross examined. He also relies (para. 9) on statements of Ms. Iredale that, additionally, probative value, prejudice, delay, and size of the record, argue against admission of any of the CFS records to be available to this proceeding.

I accept the validity of these submissions, but, with the parties borrowing from the DF records (primarily AR) before Court permission was given to use them, and their repetition, they have, in effect, become “renown facts”, by which I mean, not legally proven, but in substance not disputed.

It is in that context that I have referred and will refer to passages of the RDF raised. [ 49 ] Moreover, JU asserted that the records were “ cherry picked ” by AR (emphasis in the original) – Counsel for the Director, in her Brief, gave credence to this concern, and AR admitted it at para 21 of her Reply Argument Brief. [ 50 ] JU also asserted (para. 3) that it was “her position that the Children’s contact with JU was harmful and that such contact ought to be reduced to zero”. Later at para10, he asserts that “the reasons for the current litigation is AR’s Application to suspend JU’s parenting rights”.

Still later he notes (para. 15) that if AR did not proceed with challenging Justice Poelman’s Judgment, parenting after the suspension of the Supervision Order would return to what Justice Poelman had ordered, a conclusion which AR challenges at paras 27-28 of her Reply Argument Brief, referring to the Queen’s Bench access suspending order two days earlier, to prevent that result. Alternatively, he argues (para. 18) that AR has a continuing “inability to understand that (

a) the Children have rights to have both parents in their lives, and (

b) AR’s inability to realize that (

i) she has no right to absolute control over the Children, and (ii) she has to let go of her need to control what the Children do when they are with JU...”.

[ 51 ] At para. 4. c), he alleges contempt by AR in respect of Justice Poelman’s Judgment, in relation to: passports for the Children for the US trip in March 2019 discussed herein; homeschooling without JU’s consent or Court order; AR scheduling activities for the Children during JU’s parenting time; and failure to provide school materials and education plans in English. [ 52 ] He alleged, para. 4. e), that CFS failed to investigate JU’s complaints about AR having exclusive control of the Children’s routine medical needs but AR’s neglect in that regard. [ 53 ] He spends much of his argument ( inter alia , all or parts of paras. 10, 12, 16, 19) challenging AR’s assertions that CFS encouraged her to proceed to QB to set aside the effect of the Poelman Judgment.

AR’s Reply Affidavit [ 54 ] AR filed her Reply Affidavit on September 29, 2020, but other than one reference as to the reason CFS sought the Interim Supervision Order in the first place, there is no need for me to reference it specifically. AR’s Reply Argument Brief [ 55 ] As authorized, AR also filed her Reply Argument Brief on September 29, 2020. [ 56 ] At para. 7. b), AR references Counsel for the Director’s comment about disclosure being necessary “if the issue is the position of CFS itself”, and AR responds that “That is exactly our case”.

I refute that, because Counsel for the Director made clear that the Director takes no position on the disclosure application, and that none of the reports in the RDF are from experts. Thus, the Director has no ability (or desire) to take a position on the parenting at issue before this Court, nor does the Director try to do so.

Moreover, and on this record, it would be irrelevant to the Court’s decision – in other words, the Director does not decide parenting in this application, the Court does, and accordingly the Director’s position or opinion if the Director wished to express one (and it is clear there is no such wish) it would be both inadmissible and irrelevant. Conclusion as to the s.126.11 Application [ 57 ] For the reasons set out herein and in Appendix “A”, the s. 126.11 Application is dismissed, except, as noted above in the

summary, for: the following five passages of the RDF, as identified in Appendix “A”, with noted exclusions:

a) p. 342;

b) p. 513;

c) pp. 509, first two sentences only;

d) pp. 518 – 519, excluding the

schedule that follows; and

e) p. 531. for the Courts consideration in the within Final Order, as I have done, subject to such conditions as Counsel for the Director and the Court approve. The approval of the parties, and Children’s Counsel, under Rule 9.4(1) (c), will not be required. [ 58 ] Counsel for the Director is requested to provide a draft Order, with these passages attached, which I have already had regard to in concluding the Final Order, that confirms the dismissal and the conditions and procedures appropriate under ss. (10) of the CYFEA .

In the interval, I will, by Order, seal and file with the Clerk, the remainder of the DF and RDF, as required by s. 128.11(11) of the CYFEA . Final Order [ 59 ] The decision as to the Final Order was delayed until the completion of this s. 126.11 Application, which is now completed.

Almost nothing of substance has been ordered produced for this Court record, and there is nothing therein to change the result from the Interim Order, except much more information which would make for a few adjustments between the Interim and Final Orders. [ 60 ] Without getting into a long legal dissertation of the legal principles behind the Interim Order, and the Final Order I am about to announce, those orders must be one(

s) that, in law, is/are for parenting that is “only” in the best interests of the children – see s. 18 of the Family Law Act , S.A. 2003, c. F-4.5 , as amended, and the two main, and 11 supplementary considerations, that apply, to the extent pertinent. I will not go into all of these considerations of principle in these Reasons, although most of which are implicit herein. However, I refer generally to the relevant cases of the most recent annotation of that section: Barber, The 2019 Annotated Alberta Family Court Act , Thomson Reuters, 2019.

The principles in s. 18 , as discussed thein at pp. 54 – 151, insofar as applicable, are consistent with the change to the Divorce Act , in the new 2019 amendments (Bill C-78), for which Royal Assent was granted on June 21, 2019, to come into effect on March 1, 2021 [20] , which require, in s.16(2) that the primary consideration is “the child’s physical, emotional and psychological safety, security and well-being”.

Further Applications to the Court [ 61 ] These parents have taken up hundreds of hours of Court time over parenting disputes, and they will not again have access to this Court on parenting issues, without leave of the Court through my, or my delegate’s, order. To be clear, the following parameters apply:

a) There will be no wholesale or substantial change to the current parenting orders – the Interim Order, and the Final Order - in place as a result of these Reasons, absent a fundamental change in circumstances to what exists as of this day – see s. 34 of the Family Law Act ;

b) Leave may be given for material future matters if there is not a clear order for same in existing Orders – e.g. the issuing, use and safe keeping of passports, etc.;

c) Leave will not normally be given for matters that are pure parenting, within the jurisdiction of one or both of the parents, and that do not raise legal issues that engage the jurisdiction of the Court;

d) Any applications for orders for contempt of existing Orders, will be considered for leave only if there is a fundamental concern for the physical and mental health of the children, and there is an adequate, appropriate and meaningful remedy for any contempt that is found – otherwise, concerns can be referred anew to CFS;

e) I will not herein otherwise fetter my discretion on further leave applications; and

f) Costs under the Rules of Court may apply, including penalties under Rule 10.49. [ 62 ] Applying these criteria, I will, shortly, consider AR’s leave applications to file formal applications for my recusal and relating to an alleged change in circumstances pertaining to parenting, a one recently (February 3, 2021) provided by Children’s Counsel. Dated at the City of Calgary, Alberta this 11 th day of February, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: AR - Self-Represented for the Applicant JU - Self-Represented for the Respondent Bradley S.

Spier for the Children Elizabeth Iredale for the Director APPENDIX “A” _______________________________________________________ Memorandum of Reasons for Decision on Use of CYFEA Disclosure and Final Order of the Associate Chief Justice

J.D. Rooke _______________________________________________________ FL01 17010 AR Applicant - and - JU Respondent [1] This Appendix, being part of my Reasons, is dedicated to describing, and then, my response to, the references that AR makes to the RDF, with the numbers in bold in each

section referring to the paragraph of AR’s Affidavit filed August 7, 2020. Other references to AR’s Affidavit will be included in the main test of my Reasons. None of the material is deemed admissible to be added to the Court’s record herein, for the purposes of the Final Order, except where stated to be “ADMISSIBLE”. In all cases, I have had regard to these ADMISSIBLE sections in coming to the Final Order. (3) [21] Ongoing Assessment, April 1, 2019 to June 14, 2019, by caseworker Dana Harkin and her supervisor Stephanie Doane (pages 341 to 346) This

section of 4 actual pages contains the following material.

a) P. 342A - The

Summary contains the following report, under the heading “Physical development”: “The impact of the parents talking to the children about each other [parent] has led to the children being confused, sad and filled with anxiety and worry about all of the allegations that have been related to them including pressure about the unfairness of the 46%-54% custody decision.” Response: This conclusion appears to come from what the children are saying to the case workers, and thus their reporting to these workers, has some credibility, even if not under oath.

It has some relevance, and is technically material, but has little weight, because it is already known to the Court. It is thus, likely necessary, because there is no other record of the children’s feelings on these subjects, because they are too young to be witnesses in a case like this, although JU tried to have them file an affidavit each before the Court struck them out as being inappropriate. Accordingly, I find that this

section of p. 342 is to be produced – ADMISSIBLE - on the record of this Court, and obviously I have read it and relied on it. In more detail, it tends to show each parent, reported by CFS in the neutral way, taking steps to alienate the children against the other parent, which justifies the findings of the Court to date. One example is that of the complaint of JU that he had less than 50% of the parenting, which is childish in the extreme, because parenting is not in the single digits of time percentage, but the quality. Nevertheless, this is not sufficient to change what I have ordered to this point in this time. P. 342B - The

Summary contains the following report, under the heading “Emotional/social development”: “MU appears to be more impacted by the disharmony between the parents and will worry about the current circumstances. MU is able to articulate the differences he would like to see with his parents ... but appears to be struggling with loyalties to JU ... because of the conflictual information being provided to him (emphasis added).

An example of this is that, according to both children, in March 2019, JU told the boys that, because of the social worker and AR, JU would never see them again and if that occurs they need to run away. MU struggled with this because he does not want to run away nor does he want to have people worry about him. Another example is that MU stated in a family meeting that he wanted to live with dad 50% of the time. Later in the week when debriefing what that meant, MU stated that “dad said that is the only thing that will fix the situation”.

MU has been told [by JU] ‘not to talk to social workers’ and that this worker has ‘lied to him’ [MU] but again debriefing with MU he does not believe this which leaves him struggling between doing what dad wants and worried that dad will not love him anymore”. “DU ... struggles with the torn loyalties similar to MU but appears not to have the same level of consistent worry ....” Response: As above. This demonstrates that the older boy, MU, is getting more pressure – including threats of abandonment by JU, and

was advised by JU to abandon AR, with the worry from trying to please JU – a form of parentification. JU continues to insist on absolute equality in parenting, as noted above, but now that he has it in the Interim Order– there is no reason that he should not have 50%/50% time with the children, other than physical punishment by him dealt with in the Interim Order, and continued herein – to do otherwise, would punish the children. Moreover, now that irritant to JU is no longer on the table, he should be able to focus on proper parenting with no need for threats.

In the result, this part of p. 342 is ADMISSIBLE because it is a report from the children that is not available from any other source. In the result of these two parts (a and b), I declare that p. 342 of the RDF is ADMISSIBLE , on the Courts record in this case, and I have taken same into account on the Final Order.

a) P. 343A - The

Summary contains the following report, under the heading “Identity/self-esteem/self-image/social presentation”: “MU continues to express his desire for JU to be interested in him i.e. attend a school assembly or field trip, that has not occurred ever for MU. DU is easy going and outspoken child, he does not appear to have any struggles at this time with identity or self esteem. There are times when DU will express his desire to have JU more involved with his life, but at present time is happy because he believes AR will always be there for him”. Response: MU is impacted more by JU’s behaviour to him than DU is.

This should be a wake-up call to JU, to be involved in the lives of MU and DU, or he, JU, will be the one left out. With parallel parenting in place and JU prime responsibility for school liaison for the school year ending June 2021, will give him the opportunity to step up to the place in his son’s interests. 343A - The “Summary of the family/environmental situation” contains the following excerpts of note (others are repetition of what was said above, or are things that AR had the opportunity to say in her many pages of affidavits – thus not necessary).

The children did not like that AR “asked too many questions” about their time with JU, but since then AR has been able to correct that. Response: Initial alienation by AR, has some appearances of having been (allegedly) corrected for the better. The changes that AR has appeared to have made are providing emotional protection for the children and thus reducing their anxiety that has been expressed. Response: This shows that AR’s close involvement with the children is helpful. JU “does not believe that he needs to change anything about his parenting”.

Response: Again, it is a time for JU to have a wake-up call, or his behaviour may drive the children away from him, notwithstanding the Interim and Final Orders herein, as they start to approach adulthood. “The children have reported that they are afraid of JU and he has been physical with the children including pulling their ears, the hair above their ears, standing [them] in the cold and other questionable parenting practices for punishment. JU has stated that he is happy [that] the children are afraid of him, he views this as normal”.

Response: Some discipline and appropriate punishment is often required for children, and JU prides himself in being a strong disciplinarian, but the Interim Order provides (para. 1(g)) for no corporal punishment (punishment that causes physical pain) in response to these inappropriate punishments. Fear of a parent is not normal, although if it is meant to mean deterrence to prevent socially undesirable behaviour, by apprehension of legitimate punishment, that is acceptable – nevertheless, it should be balanced by the love of a parent. “JU has repeatedly said that “I don’t need the children they need me”.

Response: Without getting into all the theory of family law, parenting is for benefit of the children, not the for the benefit of the parents – it is an opportunity of children to benefit from their parents’ guidance.

That said, if a parent does not do parenting well, parents may lose, by court order or change of view of the children as they approach and become adults, the enjoyment of children at varying ages, including adulthood (when they are no longer children and have the sole right to decide) – the risk to parents is that unreasonable parenting before adulthood (or close to it) may result in loss of the enjoyment to parents thereafter. “It does not appear that JU is able to priorize the children’s emotional safety above his own or have any desire to change any of his behaviours or learn different strategies that would assist him to incorporate different parenting practices that would benefit the children. ...

AR does appear to provide emotional [age appropriate] warmth to the children as they have both reported.... JU appears to be content with the lack of emotional safety and having the children remain fearful of him.” Response: JU needs to learn to change his behaviours under the parallel parenting scheme in place, or take the risk of losing their appreciation of him when they get older.

JU’s behaviours, with the Interim Order in place are not such a risk to the children that he should be precluded from 50%/50% parallel parenting – the risk will not be to the children, but his future relationship with the children, when they are adult – or near adult – and may no longer have the wish or the obligation to listen to him.

a) P. 344 – Concerns expressed about JU’s living conditions for the children – during some of the time in the past in a camper van, with heat, but unknown running water and toilet. Concerns about corporal punishment are a repetition of that expressed above. Response: These concerns have been well known since I have been case manager, and absolute directions have been provided – now in para. 1(

a) of the Interim Order. Past relevance. Very material in the past. Not “likely necessary” because known and dealt with in the Interim Order. Thus, not admissible. P. 345 – repetition of the above in other words – no need for further discussion.

P. 346 – nothing of relevance.

(4) Ongoing Assessment, June 25, 2019 to October 15, 2019, by caseworker Natasha Gillis (pages 331 to 340) [22] P. 331- 340 - This portion of the RDF contains mostly repetition of matters already identified above (noting the different time frames). The material, some of which AR focuses on, includes: The children have been made aware of the court proceedings ... and have been put in the middle of adult conversations. Response: This is known by the Court and the Interim Order forbids it.

The children have not seen JU during this period, with JU, in face of the complaint to CFS, refusing access until his conditions are met, including 46 % of time with the children. It appears from other material on the court record that JU believed (it subsequently appears, falsely – as addressed by AR at paras. 52 and 54 of her Argument Brief), that there were allegations of inappropriate sexual contact involving JU. Response: I could see no reports of sexual abuse, or reports of same, in this material (which AR reports on several occasions), except that later in this

section of the report it provides that “JU talked about ... how he has been accused of sexually and physically abusing the children. He says that he will not see the children because of this....”. In fact, there is reference at p. 8, lines 14-36 of the transcript attached to JU’s Affidavit of such allegations by the CFS worker in an affidavit that were subsequently, apparently, withdrawn, so there is some basis for JU’s belief.

All of this is already known to the Court, and there, apparently, being no basis for it or intention of CFS to continue allege it – indeed, any such suggestion appears to have been withdrawn, and therefore there is not need for the Court to deal with it. The Court also notes that there was no Queens Bench Family Practice Note 5 allegation has been filed. JU at this time did not have a residence where the children could reside: Response: The Court was fully aware of this and made it a condition of his access.

There were issues of JU not allowing clothing for the children and homework from AR (they are put in a bin) when the children had access time with JU. Response: The presence of this concern has been noted by the Court, but considered it to be a short-term matter relating short-term weekend/periodic access, but these matters were both dealt with in the Interim Order for longer term care by JU.

CFS was maintaining a Supervision Order obtained in PC (originally granted on April 17, 2019) because, without it in place, the QB Decision of Justice Poelman providing JU with substantial action would go back into operation. Response: This was well known to the Court, such that access under the Poelman Order was terminated by Justice Devlin’s Order in November 2019 while this Court investigated the matter, with changes over time, ending, to this point in the Interim Order, and now the Final Order. AR decided to home school the children and this has the support of the “school board” and CFS.

Response: This is specifically contrary to the Poelman decision, without consent of JU or further court order. While such schooling may not have been harmful to the children per se [23] the Court determined that it did have a negative impact on JU’s time and influence with the children and their ability to spend time with other children their age in a school environment – thus, the Interim Order prevented this. “It appears at this time that the parents cannot work cooperatively to ensure the best interests of the children.” AR is working with home support worker in this regard, but JU refused.

Response: This is an indication that the parents cannot agree on anything in relation to the children and daily petty squabbles between them have proved that co-parenting will not work with this couple, as Justice Poelman had apparently hoped, such that, I switched the children to parallel parenting in the Interim Order, and, in the absence of more serious harm, than that demonstrated in the CFS reports, I now confirm for the Final Order.

History going back to April 2018 suggested parental alienation, and lack of proper health care, by AR, but after pursuing collateral references CFS reported “there were no [resulting] concerns/ File closed as the concerns appears (sic) to be custody related”. Response: Parental alienation appears rampant on both sides. Proper health care by AR has raised issues again in August 2020, as discussed below, but I will not deal with those herein as they are new matters.

As to “custody related” this clear – little to no evidence of harm requiring CFS intervention, only the parents (primarily AR) using CFS to support the parenting fight. “CFS is worried that the relationship between AR and JU is causing the children to worry which causes stomachaches (sic), and headaches and they are made to feel bad about themselves because they are caught in the middle of AR and JUs’ ongoing disagreements with each other. The children do not want to disappoint either parent and feel like they must say what the parent in the moment wants to hear. The boys become stressed, worried and angry....

CFS is worried that sometimes AR and JU put a lot of pressure on the boys and talk about adult things like when JU reviewed court documents with the boys or like when AR asked too many questions [about JU].” Yet AR says at para 4. b) “No concerns are expressed about their social development.” AR also says at para 4.

m) that “[t]here are reports directly relevant to the sleep issues the children were dealing with caused by anxiety and stress” – yet, JU reported that on access with him in the period prior to the Interim Order the children could not enjoy access because AR sleep deprives them in advance. Response: There is evidence of concerns about the children’s social development at the hands of both parents. However, in the Interim

Order the Court directed a new approach going forward, changes in time of change-over to JU (avoiding the sleep deprivation issue) and with parallel parenting, rather than continual debate about the past under co-parenting that both parents wouldn’t let work. Children not seeing JU has negative physical and mental health affects on the children. Response: A change was required from what little access was happening with JU, but co-parenting was not working; thus, the Court ordered a dramatic change to parallel parenting in the Interim Order.

There is a tremendous amount of repetition in the Report without new or useful information – like a repetitive diary. JU will not engage with CFS in a meaningful way, insisting on his way in parenting time and focus. Response: The Court was aware of this, and a new parallel-parenting plan was required on June 22, 2020 to break the impasse, and give a new focus to the children after the Supervision Order in PC was lifted and the Court had an opportunity to investigate.

(5) Safety Assessment completed April 1, 2019 by Dana Harkin (caseworker), pp. 394-405

a) At para. 5 of her Affidavit, AR says that this referenced material “gives a good overview and

summary of the start of the CFS case: from ...November 23, 2018.” The above reference says April 1, 2019, but the actual report starts at December 14, 2018 and appears to go to March 19, 2019. Yet it is substantially the same as reports (above) in other times. b) (p. 396) - It reports on the referee’s (complainant’

s) reported as at November 23, 2018, including the following comments (the substance - not necessarily each little detail - of all of which were known to the Court before reviewing the RDF, except as noted, if at all): Boys not seeing JU’s residence because JU blames AR and tells the boys that she has taken his residence and “everything” from him, and the boys are staying with their father in a camper that has heat, but the referee is not sure of running water (they appear unkept on return), and they are not allowed to bring anything with them from AR’s home or school.

Reports the referee’s information on punishment – corporal punishment of a mild manner mostly, with threats only of the “belt”, pulling of hair around their ears so as to leave no marks (none present), and one occasion of a [time out] outside the camper without coats with snow on the ground for 15 minutes – the boys have fear of punishment. Response: All this information was also known to the Court. (pp. 397 – 400) -The assessment reports that “Given the level of hostility between JU and AR that has been going on for a number of years.

AR’s ability to communicate with JU, and visa versa , is non-existent and she attempts to gather her information regarding the boys and their visits with JU through school personnel.” (Only the source of her information was unknown to the Court – which was previously thought to be from the boys themselves). JU reports this at para. 54 of his Affidavit.

The assessment further reports about the disagreements between the parents, the lack of cooperation of JU with CFS [24] ( his “authoritative parenting”, negative views of the Courts and their orders, and the children’s schooling), and the impacts on the children (the children “are caught in the middle of their parents battle” – want to stay in a house not a camper, unable to do attend recreation activities established by AR when with JU, etc.). Response: These and related issues have been directly addressed in the Interim Order.

In reference to historical child intervention, the following is provided: “There have been 2 intakes [dates identified at p. 399], closures [termination] as it is determined to be custody/access issues” (emphasis added) . 2018/11/23 the concerns reported for the children’s well being are heavily enmeshed with custody/access issues and, the impact it having on the children’s mental health.” Response: This is clearly identified in the Interim Order and continuing – see reference to January 2021 communication to the Court near the end of these Reasons.

The report identifies that one of the “Complicating Factors” is that “the parents do not communicate”. Response: An understatement of the first order. (p. 400) – “CS recognizes and appreciates that co-parenting can be stressful on any family and that it is important to have the adults in the children’s lives work together to be aware and engaged in supporting the children while putting their own personal differences aside. ” (Emphasis added).

Response: Co-parenting is impossible with these parents, as I found in the Interim Order, as they have proven and continue to prove - that, because of their animosity, they cannot “work together” in the children’s interest, as they cannot put “their own personal differences aside”. (pp. 400-402) - The report identifies what CFS will make an application to Provincial Court for a Supervision Order, which continued to support a co-parenting arrangement, with the children residing with AR having complete control over the children, and JU only having access at “the discretion of the caseworker”, and conditions that include no “physical discipline”.

Response: Co-parenting has not worked and will not work with this family, with the intractable parental conflict. (pp. 403-405 – on Screening Aid for Family Violence (SAFV) – this

section of the report doesn’t seem to have been completed.

(6) The discharge report, all Level 3 reports and all Contact Logs by Katherine Parken of Worth Resolving (63 pages from April 26, 2019 to January 23, 2020, but none with CFS page numbering) Having read all the parts of the RDF highlighted by AR and, at least, scanned the rest, there is extreme repetition here (from a report of one time to another, or overall) and nothing new that has not already been reported above, and nothing that was not known to the Court before this analysis.

AR’s strong points, most of which are not in issue before this Court, are reported, with the only concern being that she “has a tendency to over-compensate with MU and DU due to the stress that JU’s influence causes them”.

It is noted that, due to JU’s conditions for access, he had not seen or communicated with them for most of this period (exact start date not specified), with repeated references to things such as the children, or one of them, becoming “more forthcoming with ... emotions ... which sometimes involve anxiety and sadness about the current situation involving JU”, and “both have expressed a desire to have contact and visits with their dad”.

At the end of September, CFS withdrew their Supervision Order (finally terminated by Provincial Court Order on November 15, 2019) and have instead, signed a Family Enhancement Agreement with AR, but JU had not signed. For the period ending December 31, 2019, reference is made to this Court’s order “which included a gradual increase in access with JU .... The boys had their first visit with their father on December 17, 2019, occurring twice per week and increasing in duration over time”. The report talks about conversations with the boys and Ms.

Parken about “their excitements and concerns” before their first visit, and afterward parroting JU’s wish for 50/50 parenting time, being concerned about JU not taking them to the activities pre-established with AR, and being less open to conversations with Ms. Parken as time moved on, with the boys showing more sibling aggression and competitiveness. The February 29, 2020 report expresses the view that “Since the boys began seeing the

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