ZT v FT, 2021 ABQB 375

Court of Queen’s Bench of Alberta Citation: ZT v FT, 2021 ABQB 375 Date: 20210511 Docket: FL01 29138 Registry: Calgary Between: ZT Applicant - and - FT Respondent _______________________________________________________ Endorsement of the Honourable Madam Justice B.E.

Romaine _______________________________________________________ [ 1 ] In August 2020, an EICC Justice directed that the issues of restrictions on the father's parenting, supervision of the father's parenting, location of parenting, decision-making authority, and ongoing disclosure of the father's criminal proceeding be addressed at a two-hour special. [ 2 ] On December 18, 2020, the Court in an interim without prejudice parenting order directed that the primary residence of the children would be with the mother, and that the parties may arrange for access for the father "as mutually agreed upon with the consent

of the [mother] only". [ 3 ] There are two children involved: OT, 13 years old, who has been diagnosed with autism and ADHS and; ET, 4 years old; who suffers from issues of speech delay. [ 4 ] The parties separated in August, 2016. The mother moved to Calgary from Nigeria some time before that with the oldest child. The father visited the mother and the oldest child in Canada in December, 2015, and after that, returned to Nigeria. While he was in Nigeria, the youngest child was born. [ 5 ] The father returned to Calgary in November, 2016, after the parties had separated.

He says he wished to reconcile and to see his children. The mother called the police. No charges were laid. The father moved to Toronto. [ 6 ] The parties have filed conflicting affidavit evidence about a number of issues, including how often the father saw the children since he moved to Toronto in 2016. The mother says it was only three or four times. The father says he regularly visited the children on almost all long weekends.

They agree, however, that the last time the father saw the children was around Easter in 2019. [ 7 ] In September, 2019, the father was arrested in Toronto and charged with possession of proceeds of crime over $5,000, money laundering, possession of counterfeit property, and possession of a forged passport relating to an alleged scheme with others to prey on vulnerable seniors. He initially lied to the mother about this, and says that he did so because he was concerned that knowledge of the offences would affect his relationship with the mother.

She found out about the charges through media reports and the internet. [ 8 ] The mother is a foreign-trained physician, but has been unable to obtain a license to practice in Canada. She is attending university in the UK to upgrade her credentials through a three-year course so that she will be able to practice here. She started the course in August, 2019. [ 9 ] While she is away, the children have been in the care of her mother in Calgary, who has been their appointed guardian.

The mother says that, prior to discovering the father's criminal charges, when she was planning to travel to the UK, she asked the father if he would come to Calgary and care for the children for two weeks to allow her mother extra time to move from the United States, and he refused, citing health difficulties.

The father does not dispute this, but says that his health issues prevent him from looking after the children alone, and the mother's offer to pay his expenses to come to Calgary was an insult. [ 10 ] The mother has been the primary care-giver of the children during the relationship and post-separation until she undertook her retraining in the UK. She travels home to Calgary when she can. She says that the father has not exercised the parenting time with the children that she has offered, including telephone access.

The father says that he cared for the children during his weekend visits from Toronto, and that he has developed a bond with them.

However, he says that health issues prevent him from looking after the children alone. [ 11 ] The father complains that the oldest child does not always pick up the phone when he calls, and that the grandmother will not provide him with a telephone number so that he can call her about the children. [ 12 ] The mother says that, although the father was directed by Justice Kenny to provide the status of criminal proceedings, he refused to do so for a period of time, other than providing a copy of his bail conditions.

In text messages, the father alleges that he was not obligated to provide such details, as it was just a suggestion from the Court. However, in a July, 2020 affidavit, he concedes that Kenny, J. directed him on July 15, 2020 to provide details about his health and criminal charges. [ 13 ] In the affidavit, he provides partial details of the criminal proceedings. On April 12, 2021, the father provided an affidavit indicating that he had resolved all his criminal charges by way of conditional discharge, that he had pled guilty to possession of stolen property, and that the other charges were withdrawn.

He says the only condition of his discharge is that he keep the peace and be of good behaviour. [ 14 ] The mother asks that the Court:

a) restrict the father's access to supervised access with one week advance notice to the mother prior to such access, with a police enforcement clause, and such supervision undertaken by a third-party agency in a public place, the cost of such being borne in full by the father ;

b) for an order specifying that in the event of disagreement between the parties or lack of response from the father in a timely manner, the mother's decisions regarding the children shall prevail. [ 15 ] The father wants:

a) shared custody of the children;

b) reasonable and generous unsupervised parenting time with them, as he says he wants the children to be able to visit him in Toronto during long weekends and at Christmas;

c) daily online access to the children; and

d) the grandmother's telephone number. [ 16 ] It is trite to say that my primary consideration in this application is the best interests of the children. For a number of reasons, including the father's voluntary relocation to Toronto in 2016, and his pending criminal charges, he has not seen the children since the spring of 2019. [ 17 ] Between the mother's move to Canada and 2016, he could not have seen his oldest child frequently as he remained in Nigeria.

Whether he saw the children as frequently as he alleges between 2016 and the spring of 2019 or as seldom as the mother alleges, the children have not seen him for two years, and require an interim period of adjustment to become reacquainted with their father. [ 18 ] Given the level of conflict between the parties, and the father's failure to be candid about his situation with the mother, I find that it is reasonable for there to be a period of supervised access as proposed by the mother.

I therefore direct that the father be entitled to supervised access, with such supervision undertaken by a third-party agency in a public place and at the father's cost, a maximum of two weekends a month for the next six months. [ 19 ] This access will be in Calgary, as it is unreasonable to require the children, particularly the four-year old, to travel to Toronto. The 13-year old has issues with autism and ADHA that may make solo travel at his age difficult.

The father has admitted to health difficulties that make it impossible to care for the children alone, and has not provided any kind of reasonable parenting proposal to address this difficulty. [ 20 ] The supervision access may occur two days over a weekend, but the children may not stay overnight with the father during this initial period. The father will abide by all health rules current in Alberta during his supervised visits.

I understand that travelling during the present state of the pandemic in Canada is difficult, and do not expect that the father will be able to travel to Calgary more than one weekend a month until the summer. [ 21 ] If the supervised access does not lead to problems, and if the father exercises such access at least four times during the next six months, such weekend access may progress to unsupervised access, including one overnight. However, before that occurs, the father must prepare and provide to the mother a detailed parenting plan that covers the following issues:

a) the address where he will be staying in Calgary, including details of facilities for overnight access if he wishes to exercise it;

b) his current address in Toronto;

c) his current telephone number and email address;

d) proof of his conditional discharge; and

e) proposed times and locations of pick-up and drop-offs. [ 22 ] The father will provide the mother with one week advance notice of his plans for supervised access, including details of the supervising agency. [ 23 ] If the father does not exercise his right to supervised access, or has not exercised it on at least four occasions in the next six months, he must apply for leave to bring any application for increased access. [ 24 ] The father is allowed access by Facebook or Whatsapp twice a week to the children, on a Sunday and a Wednesday, at 5:00 p.m. Calgary time for a maximum of one-half hour.

Initially, such access will be with both children together, until such time as the youngest child becomes comfortable with this mode of communication, which shall be the grandmother's decision. The mother and grandmother will make reasonable efforts to facilitate this access. [ 25 ] As long as the father exercises his right to supervised access, and thereafter if there is to be unsupervised access, the mother will consult by email with the father with respect to major events in the lives of the children.

[ 26 ] In the event of disagreement between the parties or lack of response from the father in a timely manner, the mother's decisions will prevail. Heard on the 27th day of April, 2021. Dated at the City of Calgary, Alberta this 11th day of May, 2021 . B.E. Romaine J.C.Q.B.A. Appearances: Faraz Bawa for the Applicant, ZT Muhammad Ishaq for the Respondent, FT