MGR v MRD, 2021 ABQB 250

Court of Queen’s Bench of Alberta Citation: MGR v MRD, 2021 ABQB 250 Date: Docket: FL09 01715 Registry: Peace River Between: MGR Appellant - and - MRD Respondent Anonymization Notice These Reasons for Judgment have been anonymized to protect the privacy interests of the parties and their child. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice A. Loparco _______________________________________________________

I. Introduction [ 1 ] The parents were in an adult interdependent relationship that ended in 2015. There is one child of the relationship, born in April of 2014. [ 2 ] This is the father’s appeal from Chrenek PCJ’s (the “Varying Judge”) variation on August 13, 2020 of a Final Parenting Order previously granted on November 9, 2017 (the “Final Parenting Order”). [ 3 ] I conclude that the Varying Judge made no error in her decision. However, the fresh evidence adduced changes what should have been the outcome. The father’s application for shared parenting is granted. II.

Background [ 4 ] In July 2019, the mother raised the possibility that the father sexually abused the child due to what she considered to be inappropriate play with another girl and certain utterances made by the child. Investigations by the RCMP and Children’s Services were launched.

Both investigations were closed as the allegations against the father were found not to have been substantiated. [ 5 ] The Children’s Services file, which was in evidence, indicated that the child was exposed to at least one sexual act as well as to sexualized language and sexual content in the mother’s home and recommended PACE counselling for the child. [ 6 ] On October 9, 2019, after the conclusion of the investigations, the father filed an application seeking shared parenting.

On October 11, 2019, the mother filed an application for supervised access only for the father on the basis of her further concerns about the father’s sexual abuse of the child. [ 7 ] As a result of the allegations raised by the mother, the Court granted an emergency Interim Variation Order on November 7, 2019, pursuant to which the father was permitted only supervised access until the trial of the matter on August 13, 2020 (although between July 24 to August 3 rd , he was permitted to drive with the child unsupervised). [ 8 ] On August 13, 2020, the mother gave evidence at trial that the child had only completed 2 counselling sessions with PACE and that usually up to 12 sessions are recommended.

The mother argued for continued supervised access until the counselling could be completed. The Father sought a shared parenting regime on the basis that the RCMP and Children’s Services investigations were complete and cleared him of any misconduct and because of a change in his work schedule. [ 9 ] The outcome of the trial resulted in a Variation Order, which provides the father with increased access to the child from every second weekend to 10 days per month, including overnights (the “Variation Order”).

Since the counselling outcome was deemed unresolved, the Varying Judge invited the parties to review the Variation Order in June 2021. [ 10 ] After the trial decision, the father contacted PACE to arrange for the continuation of counselling for the child. In or about October, 2020, he was told that counselling had concluded in March of 2020 and that no further sessions were warranted as the child was not displaying behaviour indicative of sexual abuse.

He was advised that the mother was aware of this prior to the trial. [ 11 ] On February 10, 2021, Simpson J granted an Order permitting the father to adduce fresh evidence on appeal including the information received from PACE (“fresh evidence”). [ 12 ] The father received a letter from PACE dated February 27, 2021 and a Termination File

Summary dated April 30, 2020 after filing his Appeal. The

Summary indicates that the child was discharged from counselling effective the same date. [ 13 ] The father appeals the Variation Order and asks this Court to set it aside and make an order for 50/50 shared parenting or to direct the matter back to the Provincial Court for a new trial. III. The Father’s Grounds of Appeal [ 14 ] On appeal, the father submits that: (

a) the Judge made an error of mixed fact and law when she determined that there was a material change sufficient to vary the Final Parenting Order but not sufficient enough to award 50-50 shared parenting; and (

b) the Judge made an error of mixed fact and law by allowing the Respondent’s misconduct in not taking sufficient steps to ensure the child received counselling between August, 2019 and March, 2020 when PACE was closed due to COVID-19 to be a bar to the Appellant being awarded shared parenting. [ 15 ] Since the fresh evidence from PACE was received after he filed the Notice of Appeal, the father also submits that this Court may consider that the fresh evidence is vital to the outcome and substitute its own variation order.

[ 16 ] In particular, the father contends that the fresh evidence indicates that the mother was advised on March 11 and March 18, 2020 that no further counselling was recommended. He submits that the Varying Judge’s decision was therefore based on incorrect facts and that had she known about the actual status of the PACE counselling, she would have awarded shared parenting. IV. Standard of Review [ 17 ] This Court owes deference when hearing an appeal from a parenting order granted in Provincial Court. “The standard of review of a parenting order allows for appellate intervention only where the judge below erred in law or made a material error in his or her

interpretation of the facts”: Zack v Popp , 2019 ABCA 50 at para 14 ; Letourneau v Letourneau , 2014 ABCA 156 at para 6 , citing Van de Perre v Edwards , 2001 SCC 60 at para 13 [ Van de Perre ] . [ 18 ] To succeed in this first aspect of the appeal, therefore, the father must establish that the Varying Judge erred in law or made a material error in her

interpretation of the facts that “gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected [her] conclusion”: Van de Perre at para 15 . V. Analysis Ground 1: Did the Varying Judge make an error of mixed fact and law when she determined that there was a material change sufficient to vary the Final Parenting Order but not sufficient enough to award 50-50 shared parenting? [ 19 ] The father applied to vary the terms of the Final Parenting Order as he is entitled to do under s 34 of the Family Law Act , SA 2003, c F-4.5 (“the Act ”).

Subsection 34(3) of the Act states that the Court must be satisfied that there has been a change in the needs or circumstances of the child since the making of the previous parenting order before any variations can be made. It also states that the Court shall only consider the child’s best interests pursuant to s 18 of the Act in making a variation order. [ 20 ] I conclude that the Varying Judge did not err in law. The Variation Order was made after considering the child’s change in circumstances and the child’s best interests (as were known to the Honourable Varying Judge) at the time. a.

Change in the child’s circumstances [ 21 ] Where a court has made an order respecting the parenting of a child , the general rule is that an applicant seeking to vary that regime must show a material change of circumstances since the parenting order was made : TAS v GAS , 2020 ABQB 761 at para 15 ; NM v CK , 2012 ABQB 388 at para 44 ; Gordon v Towell , 2010 ABQB 396 at paras 21 and 22 .

Thus, t he threshold question to be considered by the Varying Judge was whether there had been a material change in circumstances affecting the child: Cheng v Li , 2015 ABCA 322 at para 22 . [ 22 ] At trial, the mother testified that only two sessions of PACE Counselling took place prior to the end of 2019 and that as a result of COVID-19, further sessions ceased in March 2020 because the child was not a candidate for Zoom sessions.

The Varying Judge was also advised by the mother that PACE ordinarily conducts up to twelve visits with children. [ 23 ] The Varying Judge also heard evidence about the change in the father’s work

schedule necessitating a change in the parenting plan. [ 24 ] Although the record is not entirely clear, given the nature of the variation granted, counsel agree that a material change in circumstances was found by the Varying Judge. [ 25 ] In the transcript, the Varying Judge first acknowledges that the allegations and investigations may generate a change in circumstances (p. 133 ll 7-8). She then refers to other changes, and states that the only real change - other than the allegations , which were determined to be unfounded or unsubstantiated – was the change in the father’s work

schedule (p. 133 ll 10-19). Finally, the Varying Judge assesses the nature of the other change in circumstances, being the change in the father’s work schedule, and concludes that there is not “much of anything there” and it would not result in significant changes to the Final Parenting Order (p 133 ll 20-22 and p 146 ll 5-8). [ 26 ] It is clear from the use of the words italicized above that the Varying Judge was alive to the two relevant changes in circumstances: both the conclusion of the investigations and the change in the father’s work schedule.

Having found sufficient evidence of a change in circumstances, she moved onto an analysis of the best interests of the child. b. Best interests of the child [ 27 ] The Varying Judge made it clear that the child’s best interests were her exclusive concern when she decided to vary the terms of the Final Parenting Order. She considered several factors in deciding what was in the child’s best interests including the investigations conducted and the outcomes (including testimony from Mr.

Mitten, an assessor with Children’s Services), the mother’s evidence regarding the PACE counselling sessions attended, recommended treatment and the status of ongoing counselling, the child’s special future needs (e.g., re schooling), the parents’ concerns regarding the child’s care, the parents’ failure to properly communicate, the nature of the parents’ relationship, the father’s work schedule, the mother’s limitations arising from a car accident, the relationship with extended family, and the proximity of the parties’ homes.

[ 28 ] The Varying Judge decided that the child’s interests were best served by having both parents in her life without any ongoing supervision. She considered the communication barriers and set rules for improved methods of correspondence. [ 29 ] A judge deciding the best interests of a child is “obliged to consider all factors relevant to determining best interests”: DAF v SRG , 2020 ABCA 25 at para 20 .

In considering the evidence before her on these matters, I find that she properly considered the relevant factors set out in s 18 of the Act and, in particular ss 18(2)(a),(b)(i), (ii), (v), (vii), (viii), (ix) and (x). [ 30 ] The evidence from Children’s Services social workers, along with the records that were exhibited at trial, were all before the Varying Judge.

This included references in the record to the mother’s sexualized behaviour in front of the child and the absence of any evidence of exposure to sexual conduct or content in the father’s home. [ 31 ] It is not the role of this Court to intervene to re-weigh the factors relevant to determining what is in a child’s best interests, unless the lower court failed to consider a relevant factor or forgot, ignored or misconceived the evidence in a way that affected her conclusion: Van de Perre at paras 13,15 and 35 . [ 32 ] The Varying Judge did not fail to consider a relevant factor and did not forget, ignore or misconceive the evidence before her in a way that affected her decision. [ 33 ] Much was said at the variation hearing regarding the ongoing conflict between the parents, but the Varying Judge’s decision was based upon her consideration of factors relevant to the child’s best interests and how the child’s needs can best be met.

She understood that this child had a special bond with both parents who are equally capable of having a positive impact on her life. [ 34 ] Having found that there was a material change in circumstances, it was open to the Varying Judge to make any variation to the Final Parenting Order she saw fit. The father’s request for 50-50 shared parenting was before her. [ 35 ] The judge is not required to provide reasons for why she rejected the shared parenting regime in favour of another option.

The Varying Judge had the discretion to craft an appropriate variation given her first-hand appreciation of the circumstances, evidence, and submissions. [ 36 ] The lifting of the supervision requirement and increase of parenting time with the father from every second weekend to 10 days per month is indicative of how the Varying Judge balanced all of the factors before her; in the result, a high level of deference is owed to her ultimate conclusion.

Ground 2: Did the Varying Judge make an error of mixed fact and law by allowing the Respondent’s misconduct in not taking sufficient steps to ensure the child received counselling between August, 2019 and March, 2020 when PACE was closed due to COVID-19 to be a bar to the Appellant being awarded shared parenting? [ 37 ] Based on the record and the evidence that was adduced during the variation hearing, I find that the Varying Judge did not make a material error in her

interpretation of the facts as presented to her. She made her decision to vary the terms of the Final Parenting Order after hearing the sworn testimony of several witnesses and assessing and weighing the evidence and the relevant factors set in out in s 18(2) of the Act . [ 38 ] However, as will be further explained below, the Varying Judge’s decision, and her denial of the father’s request for a shared parenting regime, appear to have been focused on the fact that the PACE counselling sessions for the child had not yet been concluded. This has proven to not be the reality.

As such, a review of the fresh evidence in light of that determination is required in order to assess whether a different outcome would have occurred or is justified now. a. Does the Fresh Evidence justify a new trial or a new parenting order? [ 39 ] The father obtained an Order from Justice Simpson allowing him to present fresh evidence on appeal.

Further to that Order, he filed an Affidavit with several attachments from PACE. [ 40 ] The father contends that when the mother testified at trial, she was well aware of the fact that the child had completed 5 PACE sessions (and not two as she testified), that initially 4-6 were recommended, but that ultimately, she was advised in March, 2020 that 5 were sufficient and no further counselling was recommended.

I note the records show that the final session took place via Zoom on March 18, 2020, contrary to the mother’s evidence on this point. [ 41 ] The father submits that had the Varying Judge been privy to the correct information heard on appeal, she would have decided in favour of granting his request for shared parenting based on the maximum contact principle and the fact that there were no ongoing concerns. [ 42 ] The mother argues that the fresh evidence does not prove that she deliberately misled the Court in advising that the child only had two PACE sessions.

She further submits that the evidence at trial was that she was in a car accident in January 2020 and suffered head injuries and a concussion. Her counsel suggests that she may have had memory problems or that there was a misunderstanding about the questions posed to her at trial. [ 43 ] Her counsel further submits that if I am to rely on the fresh evidence as proof that the mother misled the Court, the mother ought to be given an opportunity to cross-examine Ms. Lauzé, the PACE trauma counsellor.

However, counsel concedes that the records can be relied on to establish the truth of the contents, namely, that the child only needed 5 sessions and that the sessions were concluded in March, 2020 with no further recommended counselling.

[44] Although the Varying Judge considered whether the sexualized behaviour had settled down, it is clear that the failure tocomplete the PACE sessions was front and center in her determination.

Notably, the Varying Judge stated her concern prior to deliveringher formal reasons: And what concerns me the most is that this child – and I appreciate that COVID intervened in March of this year-but this child, since lastJuly when these, - or June -, when these things started to arise has only had a couple of visits with PACE (p 132 l 41 to p 133 l 2) [45] She continued to address this concern in her reasons as follows: Because things are still up in the air with counselling, I would propose that the order could be reviewed by either party on reasonablenotice to the other at any time after June the 30th, 2021 (p 139 ll 38-40). […] It’s a review because you still have a- a child who’s in some Pace therapy and this- these events-these actions still leave some lingeringconcern.

And this court just wants to make sure that this order is going okay for your child (p 145 ll 17-19). [46] Madam Justice F.L. Schutz dealt with a similar issue of fresh evidence in a parenting dispute in GRN v RDE, 2014 ABQB502. She took guidance from the Supreme Court of Canada in Catholic Children’s Aid Society of Metropolitan Toronto v CM, (SCC), [1994] 2 SCR 165 at para 23 [Catholic Children’s Aid], and held that fresh evidence will be only admitted in casesconcerning a child’s welfare where it (at para 34): (

a) could not have been adduced before; (

b) was highly relevant in that it enabled the Court to make determinations on an accurate picture of the situation at hand; (

c) was potentially decisive as to the child’s best interest; (

d) was credible; (

e) was uncontroverted; and (

f) bridged the gap between the evidence submitted before the two levels of Court. [47] L’Heureux-Dubé J, speaking for the Supreme Court of Canada in Catholic Children’s Aid, held that child welfare appealsrequire a flexible application of the test for admitting fresh evidence. [48] As in GRN, I am similarly informed by the approach taken by Kenny J in Jones v Ryan, 2003 ABQB 787 at para 4 whereinshe said: “any time the court is dealing with the issues of children and their care, it is critical to have all the facts and know all thecircumstances that may affect them.” [49] In addition to the foregoing criteria, I must determine whether the fresh evidence would have changed the result, i.e. thevariation of the Final Parenting Order: RB v EB, 2010 ABCA 229 at paras 17 and 20; Pearson Finance Group Ltd v Takla StarResouces Ltd, 2002 ABCA 84 at para 26; R v Palmer (1979), (SCC), [1980] 1 SCR 759, 30 NR 181. [50] Counsel for the mother has conceded that the PACE records adduced as fresh evidence are correct in respect of thetermination of the child’s treatment in April 2020 and recommendation for no further treatment, prior to the trial of this matter. [51] The allegations that the mother deliberately misled the Court are not relevant to the parenting order unless I find as a factthat proven misconduct is directly linked to that parent’s ability to parent in the child’s best interests: Johnston v Brighton (2004), 6RFL (6th) 294, at paras 41-46; Choudry v Carter, 2018 ONCJ 238 at para 98; Goldstein v.

Walsh, 2018 ONSC 2978(Ont SCJ) at paras 41-42. [52] Although the information about the child’s actual number of attendances at PACE counselling, the lack of need for continuedcounselling, and its termination was likely known to the mother, I accept that the mother suffered a concussion in January 2020, whichmay have impaired her memory at trial.

I take comfort in the fact that the Varying Judge did not express any concern about the mother’sability to parent the child and as such, I find there is no need to order a new trial for the purpose of allowing her to cross-examine Ms.Lauzé on the veracity of the statement that she advised the mother that counselling would end. [53] I now turn now to the evidence presented on appeal. [54] Some of the evidence presented on appeal was already considered by the Varying Judge, namely the factors that are at play inthe assessment of the child’s best interests.

This evidence forms part of the variation hearing record; thus, I consider it under theauthority of s 87 of the Act. This includes evidence pertaining to the parents’ respective abilities to parent and the best interests of thechild. [55] After examining the fresh evidence, I conclude that the Final Variation Order should be set aside since the status of thechild’s counselling was pivotal in the Varying Judge’s decision.

Furthermore, it is now clear, based on the fresh evidence, that adifferent set of considerations and weighing of factors would have likely occurred. [56] While I am unable to conclude what the outcome would have ultimately been had the Varying Judge been provided with theactual state of the child’s counselling, I find that it is in the best interests of this child to have the issue of her parenting resolved soonerrather than later. Given that I have determined that the fresh evidence is admitted - namely that the child did not need further counselling - I assume

jurisdiction to make a new variation order that is in the child’s best interests considering the fresh evidence and the transcripts of the evidence at the variation hearing. I am satisfied a shared parenting regime would have been seriously considered as being in the best interests of the child as the ‘indications were that the access that’s happened over the last year has been positive, other than there being some issues with pick-ups and drop-offs” (Decision p. ll 16-18). [ 57 ]

Section 12.70 (

c) of the Alberta Rules of Court , Alta Reg 124/2010 provides : After hearing the appeal, the Court may do one or more of the following: (

c) make any order that the Provincial Court could have made; [ 58 ] In assessing the best interests of the child pursuant to s 18 of the Act , I conclude: (

a) the child’s physical, psychological, and emotional needs, including the child’s need for stability, can be met by both parents. The Court has no concerns that would require the supervision of either parent’s parenting time with the child; (

b) the father’s parenting time was increased significantly by the Variation Order and a move to a shared parenting regime would not be a drastic change nor disruptive for this child, contra Pinchaud v Pinchaud , 2020 ABQB 668 at para 22 ; (

c) the father’s proposed plans for the child’s care and upbringing, as set out in the draft Final Parenting Order attached as

Schedule “A” to these Reasons for Judgment, are appropriate. A week on/week off regime will be minimally disruptive for the child. See: Lukan v Kohlenberg , 2018 ABQB 392 at paras 4 and 17 and Moreau v Moreau , 2004 ABQB 660 at para 16 ; (

d) the child is bonded with her father and his family. She also has a long-standing loving and supportive relationship with her mother; (

e) each parent has the ability and willingness to care for and meet the needs of the child. They are both good parents who love their daughter. See: Ralstin v Hupalo , 2016 ABQB 48 at para 11 ; (

f) given his current engagement in the decision-making in respect of the child, the father has the ability and the willingness to communicate and co-operate with the mother on issues affecting the child and further that a shared regime would better facilitate and encourage respectful discussions between the parents in this respect; and (

g) there were no concerns raised in respect of the father’s care of the child or the sexual allegations raised by Children’s Services, the RCMP, or PACE. [ 59 ] I have also taken into account the fact the father lives by the child’s school and very near to the mother’s home. [ 60 ] Based on the Children’s Services record in evidence, I am concerned that the mother is responsible for subjecting the child to sexualized behaviour, not the father.

She failed to take responsibility for her own actions and continued to try and accuse the father of sexual abuse even after the findings of the Children’s Services investigation found that any exposure to sexualized behaviour came from the mother’s home. [ 61 ] Nevertheless, I defer to the Varying Judge who expressed no concern about the mother’s ongoing parenting of the child, and find that in the circumstances, shared parenting regime is appropriate.

Moreover, the change to a shared parenting regime will allow the father greater access to the child and therefore offers the additional benefit of mitigating any harm arising from the mother’s exposure of the child to inappropriate sexual content. [ 62 ] I am satisfied that it is in the best interests of the child that she be parented by each of her parents equally. [ 63 ] The father has prepared a draft Final Parenting Order for my consideration, which provides for shared parenting of the child on a weekly rotational basis, with exchanges taking place on Fridays. [ 64 ] However, as I have not heard the mother’s position on the draft terms, I invite her counsel to write me a letter (limited to 2 pages), copied to the father’s counsel, advising whether I should consider amendments to any of the proposed terms and the reasons for same.

This letter is due one week from the issuance of this Decision. The father’s counsel may reply by letter (limited to 2 pages) and such response is due one week after the mother’s letter is provided. [ 65 ] If costs cannot be resolved between the parties, they may contact my office for further direction. Heard on the 9 th day of March, 2021. Dated at Peace River, Alberta this 30 th day of March, 2021. A. Loparco J.C.Q.B.A.

Appearances: Helen M. J. Banks for the Apellant Sangin (Sam) Safi for the Respondent