Zak v Zak, 2021 ABQB 229

Court of Queen’s Bench of Alberta Citation: Zak v Zak, 2021 ABQB 229 Date:20210507 Docket: 4801 182850 Registry: Calgary Between: Colin Matthew Zak Plaintiff - and - Jacqueline Louise O'Driscoll Zak Defendant Notice: Some information contained in the original transcript of the Oral Judgment have been modified or redacted for privacy reasons. _______________________________________________________ Oral Judgment of the Honourable Madam Justice J.C. Price _______________________________________________________ I.

Introduction/Preliminary Matters [ 1 ] These are my oral reasons for decision of the application and cross-application brought by the parties dealing with parenting and retroactive child support. If a transcript of these reasons is requested, I reserve the right to edit it for non-substantive errors including correcting spelling, punctuation and grammar and adding citations and headings. [ 2 ] Pursuant to the family docket court endorsement signed by Justice Colleen L. Kenny and filed June 19th, 2020, the interim parenting application was directed to proceed by special application on July 29th, 2020.

[ 3 ] As a preliminary matter at the outset of the July 29th, 2020 hearing before me, Jacqueline Louise O'Driscoll Zak sought an adjournment of Colin Matthew Zak's parenting application to trial or to a viva voce hearing citing that due to conflicts in the evidence, Colin's applications were not suitable for a resolution in chambers. [ 4 ] It was argued that the evidence conflicts on matters that are critical to the determination of Colin's application including whether Jacqueline engages in alienating behaviour and/or coaching the children, the events of December 25th, 2019 and the events of May 30th, 2020.

Although there is conflicting evidence in the parties' affidavits, I find that there is sufficient evidence that is not in conflict and evidence that is uncontroverted that is material to the issues for determination. As such, I find that based on the record before me, a fair and just determination can be made.

Accordingly, the preliminary application to adjourn Colin's interim parenting application was denied at the special hearing and counsel proceeded with their respective oral submissions to me. [ 5 ] In addition, with respect to Jacqueline's application for retroactive child support, at the commencement of the special hearing, the parties arrived at an agreement to adjourn the matter sine die by consent.

Accordingly, I granted the adjournment request of counsel to adjourn Jacqueline's application for retroactive child support sine die . [ 6 ] Also most recently, since the hearing held on July 29th, 2020, Colin applied for an order that Jacqueline be held in contempt of the parenting orders made. I received that application and supporting affidavits sworn by Colin as well as the reply affidavits sworn by Jacqueline. As well, I heard oral submissions from counsel in respect of that application today. II. Background Facts [ 7 ] Colin and Jacqueline started to cohabit in April 2011 and then married on July 4th, 2014.

They separated on July 18th, 2019. There are two children of the marriage; namely, Leonine Frances O'Driscoll Zak born July 31st, 2015 and Wyatt Maria O'Driscoll Zak born June 7th, 2018. [ 8 ] When the parties first separated, Wyatt was 1 and Leonine was 4. Now Wyatt is 2 and Leonine just turned 5. On August 7th, 2019 Colin filed the following documents with the court: a statement of claim for divorce and division of matrimonial property, a family application and supporting affidavit seeking regular unsupervised visits with the children at the matrimonial home.

The grounds in his application were that “ Jacqueline has prevented me from having unsupervised time with my two daughters for approximately nine months without court order. My wife has also barred me from living in our home since July 19, 2019 without court order.” [ 9 ] Colin also filed on August 7th, 2019 his certificate of completion of the Parenting After Separation course. [ 10 ] Both parents are professionals and have above average incomes. [ 11 ] In or about June 2019, about a month before the parties separated, they retained a nanny to help care for the children.

In Colin's August 7th, 2019 affidavit, he admitted to alcohol abuse which escalated during their marital breakdown which began October 2018. There is no dispute that Jacqueline left the home with the children for a period of three weeks to stay with her parents beginning mid-April 2019 following a “particularly bad bout of depression and period of alcohol use” by Colin. [ 12 ] It is uncontroverted that Colin took a 60-day leave of absence commencing April 29th, 2019 with the support of his family physician to recover from alcoholism.

He returned to work on July 2nd, 2019 without incident and resumed his role at his place of employment. By August 5th, 2019, Colin claimed to be 100 days sober. Colin has since been cross-examined on his affidavit evidence, and as at July 17th, 2020, the date he was cross-examined, he gave evidence that he continued to maintain his sobriety. There is no evidence before me that Colin has not maintained his sobriety since April 28th, 2019.

Colin has been sober for over one year and three months. [ 13 ] Since the commencement of legal proceedings, Colin has been forthright in admitting his alcoholism and has set out what steps he has taken towards his recovery. He has also admitted to suffering from depression and anxiety and gave evidence of what prescription medication he has been taking.

I find that Colin should be commended for his admissions about his alcoholism, depression and anxiety and the efforts he has made towards his recovery. [ 14 ] At the time of separation and in reply to Colin's original application for unsupervised parenting access, Jacqueline has insisted that Colin not be permitted to be alone with the children. She has maintained this position to this date.

In August 2019, Colin gave evidence that since Jacqueline returned to work from maternity leave in June 2019, his mother-in- law arrived every weekday when he returned home from work in order to act as chaperone until Jacqueline arrived home from work. To that point in time, he was supervised either by Jacqueline, by the nanny and/or by his mother-in-law.

This evidence is uncontroverted. [ 15 ] In August 2019, Colin gave evidence that Jacqueline told him that the supervised arrangement would continue for an indefinite amount of time or until a psychiatrist could conduct a formal risk assessment and medication review. Colin said that Jacqueline held that the assessment that he had already received from a clinical psychologist, Dr. Andrea Beck, was insufficient for her purposes. From the submissions of counsel, it is apparent that Jacqueline continues to maintain that position regarding Dr.

Andrea Beck. [ 16 ] In the period between July 18th, 2019 to when Colin made his initial application for unsupervised access, it is uncontroverted that the only interaction that the c hildren were permitted to have with their father was supervised access at the matrimonial home, supervised by their mother, their grandmother or their nanny. Colin otherwise did not have access. [ 17 ] Colin's application for unsupervised access was heard on August 14th, 2019. As noted in the interim consent order, Colin was self-represented. Jacqueline was represented by Enrique Dubon-Roberts of Kahane Law Office.

Colin consented to specified supervised access. [ 18 ] Pursuant to the consent order, his access to the children would be limited to 1.5 hours over dinnertime -- specifically, 5:30

PM to 7 PM Mondays, Wednesdays and Fridays -- and two hours over lunchtime -- specifically, 11 AM to 1 PM every other Saturday and Sunday.

His access would be supervised by Jacqueline “and/or an adult person chosen by mutual agreement between the parties.” As the evidence shows, Colin's access to the c hildren was supervised by Jacqueline and/or her sisters Alison and Caroline. [ 19 ] In Justice Ashcroft's August 14th, 2019 order filed August 29th, 2019, Colin also consented to engaging in a “Practice Note 7 intervention parent psychology evaluation” and agreed to enter into a mutually-agreeable consent order outlining the terms.

In that regard by consent, an intervention order was granted by Justice Anderson on October 9th, 2019. [ 20 ] The Court noted in the intervention order that the parties signed a parenting expert’s service agreement and ordered that Glenda Lux, M.A. R. Psych. was appointed to carry out the Practice Note 7 assessment of Colin and that the following issues were to be addressed in the parenting expert's report:

a) the plaintiff’s psychological functioning;

b) the plaintiff’s mental health;

c) the plaintiff’s addictions, substance abuse history and risk;

d) the plaintiff’s parenting knowledge and beliefs;

e) the plaintiff’s knowledge of and involvement with the Children;

f) are there any risk factors that suggest that the plaintiff cannot adequately meet the children’s needs;

g) are there any current physical emotional risks to the Children if the plaintiff were to exercise unsupervised parenting time. [ 21 ] For the record, I note that Glenda Lux is an experienced and highly respected psychologist who was chosen by the parties by consent. [ 22 ] It was further ordered in the intervention order that “the parties shall not make further applications or proceed with steps in previously scheduled applications until the intervention is completed unless the health or safety of the child is at risk or the parenting expert recommends an application be made.” [ 23 ] It is undisputed that the same day that Justice Anderson granted a consent intervention order that by email dated October 9th, 2019, Colin received a communication from Jacqueline’s legal counsel at the time, setting out the guidelines for supervised visits.

The email which is addressed directly to Colin from counsel states, among other things, and I quote: If you or your supervisors are unwilling unable to agree to these guidelines, then we will have to ask the courts to require a professional supervisor be present – this is an expensive option. [ 24 ] From review of this email from Jacqueline’s counsel, I find that what was set out in the email was not “suggested guidelines for supervised visits” as was purported to be by Jacqueline but rather were mandatory imposed guidelines on the visits between Colin and the children.

I note that at the time of the receipt of the email from Jacqueline’s counsel and at the time of the intervention order, Colin remained self-represented. [ 25 ] The email from counsel to Colin set out a number of responsibilities for the supervisors including to see and hear all contact and conversations between the children and Colin and to take notes.

It is noteworthy to mention that the email also indicated that visits could be interrupted or ended by the supervisor and, if so, the supervisor was to advise both parents as to why the supervisor decided to interrupt or end the visit and to capture the reasons why in notes for the court. [ 26 ] Subsequent to Justice Ashcroft’s consent interim parenting order granted August 14th, 2019, Colin exercised his specified parenting time with the children.

As earlier mentioned, I note that Colin’s specified time was over mealtime; and I see from review of an email exchange between them during that period of time that Jacqueline complained that the kitchen was not cleaned by the time that Colin left the matrimonial home after having his parenting access and that, in response, Colin complained that his parenting time was limited and that it was difficult in the short period of time to cook a meal, feed the children, clean the kitchen and still afford the children quality time playing with him. [ 27 ] Further, from the photo evidence, it is clear that the supervisors followed the imposed guideline of not leaving the children out of their sight with Colin.

Colin’s evidence that that indeed occurred is uncontroverted. [ 28 ] The evidence indicates that the supervision of Colin’s parenting access was extreme. Effectively, there was not a moment that Colin had with the children where any one of Jacqueline or her sisters were not within reach to hear and see exactly what they were doing. By all accounts, some of the more extreme behaviour includes the following as recited from one of Colin’s affidavits: 1.

Caroline consistently refused to permit me to sit alone at the dining table to feed my daughters dinner and when asked to vacate the table would sit 3 feet away from the table facing me. 2. Caroline would also move her chair 1 or 2 feet or pivot it directly towards me as I played with my daughters in the family room and surrounding areas. 3. Jackie prevented me from leaving gifts or other food items for my daughters. 4. Christmas gifts I had given the girls were relocated to Jackie’s parents’ house on my following visit. 5.

Jackie has prevented me from picking up Wyatt to say good-bye to her at the end of a visit.

6. Caroline grabbed my cell phone from my hand on Christmas Day when I tired to FaceTime my parents so they could visit with the girls. This occurred while both my daughters were sitting on my knees. 7. Threats that the visits between Colin and the children would end. [ 29 ] All of this behaviour would be traumatic for anyone including the children or any parent. I find that Jacqueline and her family members exhibited extreme behaviour that was intended to get the negative reaction from Colin that had a resulting traumatic and negative effect on the children.

They have restricted Colin from having any quality time with the children and have interfered with the development of his relationship with the children and vice versa, their relationship with their father. [ 30 ] The decision to move forward with having Jacqueline and her sisters as supervisors may have been at the outset done for the purpose of saving money; but instead, it has only further harmed the relationship between Jacqueline and Colin as parents of the children which is a relationship they will forever share beyond the end of their marriage.

It has made it very difficult for them to carry on with parenting the children together. However, the Court must determine what is in the best interests of the children. [ 31 ] I find that supervised visits in the matrimonial home by Jacqueline and/or her sisters was ill-conceived and has only further fractured the relationship, compounded problems and elevated negative behaviours. [ 32 ] Exactly what transpired on December 25th, 2019 is in dispute; but what is not in dispute is that Colin during his access time with the children attempted to FaceTime his parents. Caroline, Jacqueline’s sister, was supervising.

Colin’s FaceTime call with his parents was cut short. Soon thereafter, the evidence is clear that Colin emailed Jacqueline requesting that Caroline no longer supervise his visits with the children. [ 33 ] The alleged behaviour by the parties of the other is appalling. The type of behaviour alleged by both parties would have a significant negative impact on the relationship of the children with their parents.

As Colin is the access parent, it is apparent based on what has transpired to date that the behaviour of the children and more specifically as reported by Jacqueline is not normal. [ 34 ] It is undisputed that on January 1st, 2020 in response to Colin’s texts wherein he states: “Hi, Jacqui. At 6:57 PM I knocked on the door because I had forgotten my bag and hat. Carol looked at me, picked up the girls and moved them from the family room. That behaviour is unnecessary. I have a video. Please don’t destroy my items. Very sad behaviour in front of the girls.” Jacqueline texted in reply: “Hi, Colin.

Please be advised that all visits are cancelled effective immediately. My lawyer will be following up with you.” In what appears to be immediate, Colin responds to Jacqueline as follows: “On what grounds? Jacqui, without a court order, you cannot unilaterally cancel visits. Please follow the court order.” [ 35 ] Colin never received an explanation as to why Jacqueline unilaterally terminated his visits with the children. However, her counsel submits that she did not unilaterally terminate the visits; rather, they argue that Colin never requested that Jacqueline or her sister Alison supervise.

So effectively, Jacqueline submits that it was Colin who did not exercise his visits. I find that position to be absurd. The evidence is clear Jacqueline unilaterally terminated Colin’s visits with the children effective January 1st, 2020. [ 36 ] On January 17th, 2020, the evidence shows that counsel for Colin spoke to counsel for Jacqueline about professional supervision pending the court hearing. A conference call with Families First was scheduled by counsel for Jacqueline for January 28th, 2020. Following that conference call, Families First provided intake and payment forms to both parties.

Jacqueline communicated further with Families First to ask questions on February 11th, 2020 and had not yet provided her intake form. Her intake form was not received by Families First until February 21st, 2020. [ 37 ] By application filed February 14th, 2020 Colin applied for shared parenting and a variation of the interim parenting order of Justice Ashcroft. His application was supported by an affidavit sworn by him on the same date. [ 38 ] By this time, Colin had legal representation. Also by this time, the parenting expert Glenda Lux completed the family law Practice Note 7 risk assessment of Colin. In

summary, the parenting expert found that Colin was currently in control of his use of alcohol and that as long as he continued to remain in control: (1) that he could as well or better than most other parents in the general population adequately meet the children’s needs; and (2) there were no physical or emotional risks to the children beyond those that exist in the general parenting population. She also set out a number of ways to address concerns regarding relapse of alcohol abuse. [ 39 ] The cited grounds for Colin’s February 14th, 2020 application included: (

a) the plaintiff has been sober since April 2019; (

b) a risk assessment has been completed, and no risks are indicated that cannot be addressed with specific terms in a court order; (

c) the defendant has continuously interfered with the plaintiff’s parenting time and has refused parenting time since January 1st, 2020; (

d) the plaintiff is agreeable to a clause prohibiting any consumption of alcohol; (

e) the plaintiff is agreeable to using Soberlink for a reasonable transition period; (

f) the plaintiff has appropriate accommodations for the children of the marriage.

[ 40 ] I find all of those foregoing grounds cited were and are supported by the evidence before me. [ 41 ] In the reply affidavit sworn by Jacqueline on February 26th, 2020, Jacqueline stated among other things the following. Paragraph 3 she says: Paragraph 3: “The applicant has a history of substance abuse and mental health issues. The applicant does not appear to grasp the severity of his substance abuse or the effect that the same has had on his ability to parent our children.

He appears to think that the PN 7 report that has taken place somehow negates the years he has failed to be an involved parent and/or be a part of the children’s lives.” Paragraph 4: “The applicant fails to put the children’s needs first. Our daughters have lived a very sheltered life which revolves around our family home where they are cared for by me and our nanny. The children have never spent a night away from me. The applicant is seeking overnight parenting time without allowing the children time to adjust and, most alarmingly, without following the recommendations set by Ms.

Lux.” Paragraph 5: “The applicant has not undertaken any substance abuse testing as recommended by Ms. Lux. Until the applicant has undergone substance abuse testing that confirms both his past sobriety and has ongoing sobriety tests, it is not in the children’s best interests that the current supervision requirement be lifted.” Paragraph 15: “As Ms.

Lux explains in her report, a person suffering from substance abuse issues is more likely to relapse in his first year of recovery.” Paragraph 46: “The applicant’s parenting time needs to be supervised until he has undertaken random substance abuse testing for a period of at least six months. Ms. Lux makes it clear that a substance abuse evaluation is incomplete without recent drug or alcohol testing. The applicant has undertaken none of these tests to date.” Paragraph 49: “The applicant’s proposed overnight parenting time fails to take into consideration our children’s age and their upbringing.

They have been raised in our home and have had little contact with anyone other than my family, the nanny and myself. If they were forced to sleep away from the only home they know without the benefit of a transitional period and their having reached the appropriate developmental age, they will be adversely affected.” [ 42 ] Jacqueline vehemently opposed Colin’s application. Jacqueline’s affidavit was before Justice Jones. In every instance along the way since their separation, Colin has been compliant with the demands and requests of Jacqueline when it has come to parenting.

He has consented to supervised visits in the matrimonial home. He consented to and submitted to a PN7 parent psychological evaluation. He consented to access in the matrimonial home even though he was permitted by court order to take the children elsewhere. He submitted willingly to random alcohol tests and drug tests and has indicated he was agreeable to a court-ordered clause prohibiting any consumption of alcohol, and there is no evidence to suggest that he has not abided by staying away from alcohol. Yet, this does not suffice for Jacqueline. [ 43 ] Her evidence indicates that she is controlling.

She has attachment and separation issues with the children. She does not trust Colin, no matter what he does to try to earn her trust. Every effort made by Colin has been ignored, downplayed, exaggerated, or misconstrued, all of which has impeded the relationship between the children and their father and has made their parenting relationship worse. [ 44 ] On February 27th, 2020 Justice Jones granted Colin’s application. Justice Jones’s order was varied the original consent order by Justice Ashcroft.

Justice Jones granted Colin unsupervised parenting time with the children every Tuesday and Thursday for four hours from 3:30 to 7:30 PM in the matrimonial home requiring Jacqueline to vacate the matrimonial home while Colin exercised his parenting time. [ 45 ] Also, Justice Jones ordered that Colin have parenting time every Saturday for three ours from 11 AM to 2 PM and that he could exercise his parenting time outside of the matrimonial home in his sole discretion and that if he chose, he could request that his time be in the matrimonial home but that Jacqueline would have to vacate the matrimonial home during his visit.

Again, this would be at Colin’s sole discretion and request, not the reverse. [ 46 ] In addition, as was offered up by Colin, Justice Jones ordered that Colin submit to alcohol testing and undergo a hair follicle, drug and alcohol test.

All of the evidence before me indicates that Colin has maintained his sobriety. [ 47 ] As for Colin’s application for shared parenting, that was ordered by Justice Jones to be scheduled for a half-day domestic special at the earliest date mutually agreeable to counsel. [ 48 ] Although Justice Jones granted the foregoing order on February 27th, 2020, the order itself was not filed until two months later on May 1st, 2020. As was submitted to me by counsel for Colin, the form and content of Justice Jones’s order was negotiated between her and Jacqueline’s previous counsel, Enrique Dubon-Roberts.

This was to explain why Colin, although submitted to alcohol testing, did not do it twice a day starting immediately after the Justice Jones order was granted. In any event, there is no evidence

showing that Colin has not maintained his sobriety. He has continued to submit his test results. I do not find that Colin has breached the terms of the Justice Jones order. [ 49 ] Subsequent to Justice Jones’s order, Jacqueline did not permit Colin to exercise parenting time on that Thursday, February 27th, 2020, nor on the first Saturday after the order was granted on February 29th, 2020.

Indeed, Colin’s parenting time did not commence under the Justice Jones order until Tuesday, March 3rd, 2020. [ 50 ] On the very following Saturday, March 7, 2020 which would have been Colin’s first time when he would have been permitted to have unsupervised parenting time outside and away from the matrimonial home, Colin found himself unable. When he arrived to exercise his parenting time, Jacqueline told him that she had put down Wyatt for her nap.

So as not to disturb Wyatt, Colin exercised his parenting time at the matrimonial home. [ 51 ] On the following Saturday, March 14th, there was inclement weather; and at the request of Jacqueline, Colin agreed again to exercise his parenting time in the matrimonial home. [ 52 ] On Saturday, March 21st, 2020, the COVID-19 directive had been issued by this time; and again at Jacqueline’s request, Colin agreed to exercise his parenting time in the matrimonial home. [ 53 ] The very next Saturday, March 28th, 2020, when Colin arrived at the matrimonial home to pick up the children for his parenting time, he was denied entry.

It is not denied that Jacqueline contacted the RCMP prior to the scheduled visit to advise that she would not be permitting Colin to exercise his parenting time. There is no denying that Jacqueline denied Colin his parenting access. [ 54 ] Following this incident, Jacqueline requested that Colin consent to not remove the children from the matrimonial home for his parenting time; otherwise, she would not permit him to have access. Colin agreed as he had no recourse to the court at that time due to COVID-19 and did what he felt was necessary to be able to see the children.

I believe that to ensure his continued parenting time with the children, Colin agreed to exercise his parenting time in the matrimonial home until the end of May. [ 55 ] In Colin’s evidence he said that the children were at first thrilled about seeing their father and the opportunity to see his home. However, he noticed shortly thereafter that the children started making concerning comments to him that Colin felt indicated a pattern of parental alienation behaviours. [ 56 ] Colin moved in permanently with his fiancé who is an EMS paramedic, and her 12-year-old daughter on or about May 30th, 2020.

At the end of May 2020, on May 30th, 2020, Colin attended the matrimonial home and started to take the children to his car to transport them to his home. Leonine ran from him, grabbed a whistle that had been left for her in a flower pot outside the home by Jacqueline and screamed for help because she believed that Colin was not permitted to take her and her sister away from the matrimonial home. Jacqueline who was still parked at the time in the driveway of the matrimonial home ran into the street screaming for the neighbours to help. The police attended. Jacqueline’s mother also appeared at the scene.

Colin, to his regret, admittedly called his mother-in-law an obscene name. To calm the matter, the RCMP asked Colin to leave; so he did leave. [ 57 ] On the subsequent Tuesday, June 2nd, 2020 parenting access date, Colin arrived and found Jacqueline waiting in the driveway with her sister. Leonine started crying before he could comfort her. Jacqueline re-entered the matrimonial home and took over comforting Leonine.

Colin has been denied parenting time with the Children since June 2nd, 2020. [ 58 ] On June 4th, 2020, a notice to attend was stamped filed indicating that Colin wished to apply for a change to a parenting order. The matter was scheduled to proceed in family docket court on June 17th, 2020. On June 10th, 2020 a notice to attend was stamped filed indicating that Jacqueline wished to apply for a parenting order and a child support order. That matter was scheduled to proceed in family docket court on June 24th, 2020. [ 59 ] Colin’s matter went before the family docket court on June 17th, 2020.

By endorsement, Justice Kenny directed that the application for an appointment for a counsellor for the children and interim ongoing child support proceed on July 26th, 2020 and that the application to deal with interim parenting proceed on July 29th, 2020. Pursuant to the endorsement on June 22nd, 2020, Jacqueline filed her family law application and supporting affidavit seeking an order for a counsellor for the children and an order for interim child support. [ 60 ] In her June 22nd, 2020 affidavit, Jacqueline states among other things the following.

Paragraph 4: “Our oldest child relayed that she is feeling unsafe in the home during the plaintiff’s parenting time. She was worried that the plaintiff would continue to disregard her request to stop bullying the youngest child, and she was fearful that she would not be able to protect her younger sister. She mentioned that if it happened again, she was planning on running away to the neighbour’s home to ask for help. This is when we came up with the idea of a whistle.

I did not want our children wandering the streets alone; and given her comments that she had already left the home through the front door unattended during the plaintiff’s parenting time, we agreed that she would use a whistle if she ever did leave the home.” [ 61 ] The evidence that Jacqueline has put whistles in the house readily available for Leonine and has encouraged Leonine to use them is not in dispute. The evidence is also clear that at no time has Jacqueline encouraged interaction between Colin and the children. It is evident by her own evidence that it has, in fact, been discouraged.

Jacqueline says that some of the recent behaviours of the children are (1) disrupted sleep patterns, (2) fear of being put in the vehicle, (3) an increased need for emotional reassurance. [ 62 ] On June 26th, 2020, Justice Sullivan granted by consent an order appointing Dr. Paloma Scott as a therapeutic counsellor for the children and interim child support. The issue of retroactive child support was adjourned to be heard at the special hearing before me. Justice Sullivan’s order has not yet been filed.

As previously stated, the retroactive child support application has been adjourned sine die . [ 63 ] Pursuant to the endorsement of Justice Kenny, Colin filed his family law application seeking shared parenting or, in the alternative, primary care of the children on June 30th, 2020. In addition, he filed a supporting affidavit.

[ 64 ] On July 8th, 2020, a certificate of completion of the Parenting After Separation eCourse was filed evidencing that Jacqueline completed the course. [ 65 ] On July 8th, 2020, Jacqueline filed a family cross-application and supporting affidavit seeking an interim parenting order as follows: (

a) the children of the marriage shall reside primarily with the defendant; (

b) the plaintiff shall have parenting time during which a mutually agreeable parenting coach or in-home support worker shall be present to assist the plaintiff with his parenting ability; (

c) the plaintiff’s application for primary care and shared parenting shall be adjourned to trial or a hearing with viva voce evidence; (

d) the parties shall share decision-making with respect to the children of the marriage; and (

e) such further and other terms as counsel may advise and this court may deem just and appropriate. [ 66 ] As set out in Jacqueline’s family cross-application, she cites that Colin’s ability to appropriately parent is impacted by the following: (

a) he is in recovery from alcoholism and has a history of mental health issues including suicidal ideation, depression, anxiety and emotional dysregulation; (

b) he has failed to follow provincial guidelines regarding COVID-19; (

c) he has exposed the children to inappropriate behaviour and conflict by arguing with visit supervisors, having a physical altercation with the defendant and swearing at the defendant and her family members in the presence of the children; and (

d) he has introduced the children to a new romantic partner without consulting the defendant prior in the middle of COVID-19. [ 67 ] On July 15th, 2020, a reply affidavit sworn by Colin on July 14th, 2020 was filed. Colin was cross-examined on this affidavit and his June 30th, 2020 affidavit on July 17th, 2020. [ 68 ] On July 29th, 2020, the parties appeared before me to speak to their respective applications by a special hearing.

At the conclusion of the hearing, I reserved my decision but directed that the parties in the interim follow Justice Jones’s parenting order. [ 69 ] Last Friday, August 7th, 2020, I received an application and supporting affidavit filed by Colin for an order finding Jacqueline in contempt of the parenting orders including the direction I gave on July 29th, 2020. As earlier indicated, I have since received Jacqueline’s reply affidavit. III. Issues [ 70 ] The primary issue in this application is what is in the best interests of the children? However, I will deal with the following issues in sequence: (

a) did Jacqueline breach Justice Jones’s order; (

b) did Jacqueline breach the Ashcroft order; (

c) has Jacqueline engaged in alienating behaviour; (

d) what is in the children’s best interests; and (

e) costs. IV. Law-Analysis Findings A. First, Did Jacqueline Breach Justice Jones’s Order? [ 71 ] Jacqueline gave evidence in her June 22nd, 2020 affidavit that “matters continued to escalate once the COVID-19 pandemic started.” The COVID-19 pandemic is, without doubt, an extraordinary event that we have not experienced in over a century when the Spanish flu occurred, well before our time. [ 72 ] But for some travel restrictions and recommendations, ordinary behaviours were not impacted until late in the week of March 9th. The Alberta Government declared a state of emergency on March 17th.

Self-isolation and social distancing rules were announced and recommended. On March 25th, the province started enforcing self-isolation and social distancing rules. Since then, there have been relaxations; but protocols remain in place for everyone’s health and safety. [ 73 ] In her June 22nd, 2020 affidavit, Jacqueline says that it became clear that Colin was not following the AHS protocols. She cites the following as evidence to support her allegations that Colin was not following the protocols:

A. Colin continued to frequent convenience stores. She says he was “making multiple trips to high-traffic convenience stores several times daily.” She was able to look at the credit card transactions that evidence this. B. She further says that he refused to wash his hands and insisted on taking the children outside the matrimonial home. C. She relies on hearsay evidence from neighbours that Colin was rummaging through the garbage bins outside with Leonine. D.

Also based on the geolocator of his breathalyzer, she believes that he was visiting third parties in the Bowness area. [ 74 ] Cases involving disputes over parenting and access have arisen during COVID-19, often in cases where one parent has denied parenting access to another and that parent has sought relief. Notwithstanding the pandemic, parties have been encouraged to use common sense and engage in good faith attempts to communicate with the other party and good faith attempts to arrive at reasonable solutions.

The parties have been discouraged from taking unilateral steps to deny access. [ 75 ] The following helpful

summary of the law during the COVID-19 pandemic time was set out by Justice Graesser in SAS v. LMS , 2020 ABQB 287 at paragraph 44 , and I quote: 1. Parents are expected to address COVID-19 issues and concerns with each other before taking any action (including applying for variations or relief from the Court) to resolve these issues and concerns in good faith to act reasonably in exploring strategies that will first and foremost ensure the health and safety of their children; 2.

Where face to face access or parenting time presents different risks in the different households, the parties should consider strategies that have the children in the less risky environment but in a manner that maximizes virtual contact between the Children and the other parent; 3. Court orders are meant to be followed. There should be no unilateral withholding of access or parenting time except in true emergency situations as described above where there is imminent risk to a child’s health or safety; 4.

Whether under the Divorce Act or the Family Law Act , varying existing court orders requires a change in circumstances and will be determined on the basis of the best interests of the child or children. COVID-19 is not an automatic change in circumstances; the party seeking a variation must establish that their family circumstances have been impacted in a way that warrants a temporary change in the order; 5. The burden or onus of proof is on the parent seeking a change in the status quo or the existing court-ordered parenting.

It is not satisfied by suspicion or speculation, but as with any matter involving circumstantial evidence, it may be satisfied by logical and reasonable inferences from conduct; 6. If an application cannot be made because of the urgency of the situation, an application by the defaulting party must be made as soon as possible after learning of the emergency; 7. Applications based on speculation, mistrust, or fear without credible evidence of material non-compliance posing unacceptable risks to the children are unlikely to get permission to proceed as an emergency application, let alone be successful; and 8.

Respondents must be prepared to unequivocally commit that he or she will meticulously comply with all COVID-19 safety measures; and 9. Non-compliant parents can expect no second chances. [ 76 ] From the evidence advanced by Jacqueline, I do not find that Colin’s actions posed any risk to the children, whether it was frequenting convenience stores, taking the children out for a walk or allegedly being in Bowness outside of his home. Those are not violations that would have put the children in harm’s way.

I give no weight to the hearsay evidence of the neighbours. [ 77 ] As for not washing his hands, I insist that Colin must wash his hands. We all must do our best to continue to be diligent in washing our hands and not touching our face and encouraging our children to do the same and where hand washing is not possible, to use hand sanitizer. I require both parents to follow the COVID-19 protocols diligently. [ 78 ] Jacqueline says that Colin agreed to see the children during his unsupervised parenting access time at the matrimonial home on the Saturdays.

I find that Colin agreed to carry out his unsupervised access at the matrimonial home; otherwise, Jacqueline would not have permitted him to see the children. This finding is supported by Jacqueline’s call to the RCMP on Saturday, March 28th and her admitted denial of allowing him to have his parenting time with the children on that date. [ 79 ] Jacqueline’s unilateral decision to deny Colin access to the children or limit access to the children leaving him only to have access in the matrimonial home on Saturdays was contrary to the order of Justice Jones.

There is no evidence before me sufficiently supporting that Colin’s access pursuant to the order of Justice Jones should have been varied or be varied due to COVID-19 or otherwise. [ 80 ] Accordingly, I find that Jacqueline breached the Justice Jones order. [ 81 ] As for Colin’s decision to move in with his fiancée and her daughter at the end of May 2020, I do not find that they pose a threat to the health and safety of the children, at least not based on the evidence before me. They are no more a safety risk than the nanny and her family.

As long as Colin and his fiancée and her daughter abide by the protocols which I would expect that they do and would continue to do without further evidence to indicate they are not following the protocols, I do not find there has been any breach by Colin

that would have warranted a variation in Justice Jones’s parenting order. [ 82 ] However, Colin should have disclosed his new relationship to Jacqueline after the pandemic hit to discuss who was in his cohort and bubble and what safety precautions they were taking. But I am not surprised, given the history of this matter, that he did not discuss it with her. [ 83 ] I encourage Colin and Jacqueline to be reasonable and to have open good faith communications about what precautions they are taking to protect themselves and the children against COVID-19 and to continue to ensure the health and safety of the children.

Open communication is necessary for the health and safety of the children. B. Did Jacqueline Breach the August 2019 Ashcroft Order? [ 84 ] When asked under cross-examination about the allegation that Jacqueline barred access to the children between January 4th and February 26th, 2020, the transcript of the evidence states, page 59 lines 2 to 19: “Q I am going to suggest to you, Mr. Zak, that starting on January 4th, 2020 and ending on February 26th, 2020, my client didn’t bar you from having access whatsoever.

A Well that would be an absurd act of gymnastics because I have a text message that said that my visits are cancelled until further notice. And subsequent to that, there is multiple dates when Jacqui has indicated that she is barring access. And when I arrive at the home, the doors are locked and things are shuttered. Q Okay. So is it your evidence then that from January 4th, 2020 until February 26th, 2020, Ms. O’Driscoll was saying you don’t get to see the kids, full stop? A She said that my visits were cancelled until further notice.

I received no further notice and our efforts to employ a third party agency were repeatedly ignored or delayed by her and her legal counsel.” [ 85 ] I read through the entire transcript. Colin’s evidence is forthright. Counsel persisted in trying to get Colin to admit that he could have asked Jacqueline or her sister Alison to supervise instead, but he chose not to. He tried to get Colin to admit that it was his choice not to have parenting access. Colin made no such admissions. [ 86 ] The evidence is clear in the text exchanges and the exchanges between counsel that occurred thereafter.

I believe Colin’s evidence. I also believe that Jacqueline did not take any steps at all to contact Colin to give him access. I do not believe that Jacqueline was waiting at home to supervise or had another supervisor in place on any of Colin’s parenting dates. Jacqueline was being obstructive and was not following the court order. [ 87 ] I further do not believe that even if Colin had reached out to ask if Jacqueline and/or her sister Alison were able to continue to supervise that they would have. I find that the evidence indicates that Jacqueline also breached the Justice Ashcroft court order.

I believe her breach motivated Colin to make the parenting application which resulted in the application before Justice Jones and the Justice Jones order. [ 88 ] Also, I raise the Justice Anderson consent intervention order that was pronounced October 9th, 2019.

The parties were directed to “not make further applications or proceed with steps in previously scheduled applications until the intervention is completed unless the health or safety of a child is at risk or the parenting expert recommend an application be made.” [ 89 ] At the time of Jacqueline’s January 1st, 2020 text, the parenting expert report had not been completed. Jacqueline without application and without court order denied Colin his parenting time that was granted under the Ashcroft order.

If Jacqueline thought the children’s health or safety were at risk, she could have brought an application or even sought the recommendation of the parenting expert. She did neither. Whereas Colin only after the parenting expert report was issued did he apply for a parenting order in compliance with the Anderson order. [ 90 ] However, between January 1st, 2020 and March 3rd, 2020, he did not get to see his Children. I find that he was denied his parenting time by Jacqueline in this period as well. C.

Has Jacqueline Engaged in Alienating Behaviour? [ 91 ] I find that there was alienating behaviour exhibited by Jacqueline. This alienating behaviour includes: A. Coaching Leonine to blow a whistle if her father is taking her away from her home. Leonine who was only 4 at the time and now only 5 could have only been taught by Jacqueline to fear her father and to use the whistle if she was afraid he was doing something he should not; B. Taking supervision to the extreme to the point of intimidation and interference with Colin’s limited parenting time under the Ashcroft order; C.

Limited Colin to access only inside the matrimonial home, not a shred of evidence to support that Jacqueline has been encouraging at any time since separation that the children have a relationship with their father; D. Believing, notwithstanding the evidence to suggest otherwise, that Colin is still abusing alcohol; E. Not accepting the parenting expert report of Glenda Lux and at times misconstruing the parenting expert report of Glenda Lux;

F. Affidavit evidence from the outset sets a tone of a lack of trust and that she will persist in her efforts tointerfere with the relationship between the children and their father; G. In Jacqueline’s most recent affidavit sworn August 11th, 2020, she outlines how on the Saturday, August 8th,unsupervised access date, she arranged to have a third party presumably unknown to Colin or the children as she says “be present duringthe transition.” She did not tell Colin of her intentions until the morning of, and he was told by text. This is his unsupervised access dateaway from the home.

Meanwhile she reports in her affidavit that when he arrived, the third party sat at the dining room table while she and her sister left thebuilding. What was the purpose of having the unknown third party there at all but to agitate and interfere with the situation? Why notdiscuss with the girls and their father together to reassure them that they were going to spend time with their father elsewhere and that hewas just there to pick them up?

Rather, no, Jacqueline reports in her affidavit that she listened while things escalated with the unknown third party to the point that sheadvised the unknown third party to continue to knock on the door until the police and she arrived back at the house. This is not normalbehaviour. This is alienating, obstructive, intrusive, deeply concerning behaviour of the mother’s ability to even let go.

She demonstratesin her own affidavit her inability to detach herself to allow Colin to have any parenting time with the Children without her interference.How scary, uncomfortable and traumatic this must have been yet again for the children. Jacqueline’s behaviour is not acceptable. H. Furthermore, although Colin provided a list of alienating speech reported by Leonine, even in Jacqueline’smost recent affidavit sworn August 11th, 2020, she says: Leonine has asked me why the police believe the plaintiff when “he lies” and why they did not believer her. [92] What lies?

Incredible that a 5-year-old would believe that her daddy lies. That is not normal. It is not a lie that Colin hasunsupervised access and at his discretion can take the children where he wants on Saturdays during his access time. It could only havebeen Jacqueline to have put the fear in her daughter and to have impressed upon her that her daddy is not allowed to take her outside ofthe matrimonial home. This is disturbing.

Jacqueline’s evidence that her children have been sheltered and only know their home, theirmother and their nanny and her family is also disturbing. [93] Furthermore, in her most recent affidavit evidence, she trusted in a stranger to help with the transition, undoubtedly a strangerto her children as well as their father; and she says it was the RCMP that calmed Leonine down. How terrifying that must have been tohave an RCMP called there at all. This is not acceptable behaviour. I find what Jacqueline did to interfere and obstruct the most recentAugust 8th, 2020 visit disturbing. [94] In

summary, I find there is more than sufficient evidence to establish that Jacqueline has engaged in alienating behaviour. D. What is in the Best Interests of the Children? [95] For a parent to seek a variation to parenting time, section 17(5) of the Divorce Act requires that there must be a materialchange in circumstances of the child. As stated by Justice McLachlin as she then was in Gordon v.

Goertz, (SCC),[1996] 2 S.C.R. 27, 196 N.R. 321 (S.C.C.), that change must materially affect the child and arise from either a change in the “condition,means needs or circumstances of the child or the ability of the parents to meet the needs of the child.” (Para. 10-13.) [96] I find that there have been the following changes since Justice Jones’s February 2020 order: (

a) the children, specifically Leonine, has been traumatized by recent events; (

b) Dr. Paloma Scott has been appointed as a therapeutic counsellor for the children; (

c) Jacqueline has engaged in alienating behaviour which I find has gravely negatively impacted the circumstances of the children andboth her and Colin’s ability to meet their needs. [97] I, therefore, conclude that there has been a material change in the needs and circumstances of Leonine and Wyatt.Accordingly, I will consider the merits of the application to vary the existing parenting order. [98] In determining whether the existing parenting order of Justice Jones needs to be varied, I am required by the Divorce Act tofocus primarily on the best interests of Leonine and Wyatt.

Their best interests is paramount. [99] I take notice of section 18(2) of the Family Law Act that provides some guidance in determining the best interests of the child.Section 18(2) provides that I am to: (

a) ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and (

b) consider all the child’s needs and circumstances, including -- among other things – i. the child’s physical, psychological and emotional needs, including the child’s needs forstability, taking into consideration the child’s age and stage of the development, and ii. the child’s views and preferences, to the extent that it is appropriate to ascertain them. [100] It is clear from the evidence that Colin has been cooperative and has made concessions, putting himself in a less advantageousposition just to be able to spend time with the children. Jacqueline has had all of the control.

Given the ages of the children, I understandas a mother Jacqueline’s protective nature; however, the evidence before me including the report of Ms. Lux indicates that the children’s

father does not pose a danger to himself or to the children. Yet, Jacqueline refuses to accept this evidence. [ 101 ] Furthermore, what is clear from the evidence is that Colin is trying to have parenting time with the children and his time is being interfered with to the extreme as earlier outlined. The parties both admit that the children have been traumatized by recent events that occurred while Colin was attempting to access his parenting time. However, I find that Jacqueline has significantly contributed to this trauma.

I would even say she ignited it, and now it is aflame. [ 102 ] Recognizing that the children are only 2 and 5, they are at an early developmental stage. I do not want to traumatize them any further by making enormous changes such as giving Colin primary residential care of the children. However, Jacqueline’s attitude and her negative influence has got to change.

As I earlier stated, she has negatively impacted the circumstances of the children and both her and Colin’s ability to meet their needs. [ 103 ] I remain extremely concerned about Jacqueline’s controlling nature and the significant steps she has taken to unreasonably withhold parenting time and to interfere with what parenting time and access Colin has had. This behaviour cannot continue.

As I have expressed already, my deep concern and primary focus is on what is in the best interests of Leonine and Wyatt. [ 104 ] To ensure the greatest possible protection of the children’s physical, psychological, and emotional safety, and considering their needs and circumstances, they need to be reunified with their father, and their mother needs to stop her obstructive, intrusive, poisonous behaviour. [ 105 ] Accordingly, I order a Practice Note 7 therapeutic intervention for both parents and the children to participate in to help with parenting their children and help the children reunify with their father. [ 106 ] I want counsel to provide me with the name of an expert who will conduct the PN7 and form of order within two weeks.

If you cannot agree on the expert, submit your choices to me by Friday, August 28th, 2020; and I will decide. [ 107 ] The cost for this PN7 will be shared equally between the parties. [ 108 ] I want the parties back before me the week of October 26th to provide me with an update and at minimum, a

summary report of how things are coming along with the PN7. [ 109 ] In the interim, Jacqueline shall continue to have primary residential care of the children. However, all decision-making will be shared. [ 110 ] As for access, because of the most recent traumatic events that the children and Colin have experienced, there needs to be reunification and gradual increase of unsupervised parenting time to overnight access. Justice Jones’s order is suspended. [ 111 ] I would like to see the parties work out an interim parenting plan.

If they cannot work out what that plan looks like together, I would like to see your individual plans. I want this plan or plans also submitted to me by next week, by Friday, August 21st, 2020. If you submit two different plans, I will choose one or the other or a combination of both or do something totally different if I am not satisfied.

I want to see in your plan or respective plans a third party, perhaps Families First, retained at Jacqueline’s cost to help with the transition period. [ 112 ] Given the recent events, I find that giving Colin shared parenting at this time and immediate overnight access is not in the children’s best interest.

However, I caution you, Jacqueline, if you carry on with these coaching antics and deliberate acts to thwart Colin’s access and interfere and poison his relationship with the children, I will reconsider my decision to move to a regime to minimize contact and your ability to thwart Colin’s access. [ 113 ] As a result of the foregoing, as I am most familiar with the evidence filed by the parties and what I have ordered, I will remain seized of the parenting issues in this matter to ensure that the parents remain accountable. Effectively, as a result of ordering the PN7, I believe I am de facto case manager. V.

Costs [ 114 ] As for costs, I see no reason to depart from the general rule. As Colin has substantially succeeded in his primary application and wholly succeeded in his contempt application, I award him costs in the total amount of $7500 payable forthwith. There is no other relief for the contempt. Oral reasons given on the 13 th day of August 2020. Dated at the City of Calgary, Alberta this 7 th day of May, 2021.

J.C. Price J.C.Q.B.A. Appearances: Penny Pritchett for the Plaintiff Daniel Wilson for the Defendant