AED v SRP, 2021 ABQB 567

Court of Queen’s Bench of Alberta Citation: AED v SRP, 2021 ABQB 567 Date: 20210720 Docket: FL14 02219 Registry: St. Paul Between: AED Applicant - and - SRP Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice W.N. Renke _______________________________________________________ [ 1 ] The central issue in this Special Chambers Application is whether primary residential care of TS and ES, the two children of the relationship of the Applicant (the Father) and the Respondent (the Mother), should be with the Father or the Mother.

Three additional issues were whether the Father and Mother should share decision making respecting the children, child support, and costs. [ 2 ] Some time was spent at the beginning of the application on various procedural irregularities relating to the Mother’s cross- application. Adjournment of the application would not have been in the children’s best interests. The irregularities could be addressed through costs. I determined that the Father’s application and the Mother’s cross-application, competing applications for primary residential care of the children, would proceed.

[ 3 ] After reviewing the background facts and governing principles, I will address the issue of whether the best interests of the children are served by setting their primary residence with their Father or their Mother. I will then address the remaining issues. Table of Contents I. Background . 3 II. Governing Principles . 5 A. The Nature of This Decision . 5 B. General Principles . 6 1. Variation of Judge Pahl’s Order 6 2. Mobility Features . 7 3. Governing Principles . 7 C. Factors to be Considered . 8 III. Assessment 10 A. The Children, Their History, Their Relationships . 10 1. History . 10 2.

Relationships with Other Significant Persons . 11 3. School and Community . 12 4. Inferences . 12 B. Impact on the Children . 14 C. Relations of the Parents with Each Other 14 1. The Judge Pahl Order 14 2. The Agreement 15 3. To Litigation . 16 4. Interactions . 17 5. Inferences . 17 D. Ability and Willingness to Meet the Needs of the Children . 17 1. The Father 17 2. The Mother 18 E. Conclusion . 25 1. Primary Care of the Children . 25 2. Decision-Making . 28 3. Child Support 28 IV. Costs . 28 V. Form of Order 29 I.

Background [ 4 ] The parties were in an “on-again-off-again” relationship that commenced in 2011 and ended in early 2016 or late 2015. They were not married. There are two children of their relationship, TS and ES, ages 8 and 6 (the children). [ 5 ] The Mother claimed that the Father was not involved with ES during her first year as he questioned her paternity. The Mother also claimed that during a period when she and the children lived with her mother in Tofield, the Father visited the children only periodically.

[ 6 ] The parties came to reside in Vegreville. The Father brought an application for shared parenting. On August 25, 2015, Judge Pahl granted a Consent Parenting Order. Primary residential care of the children was granted to the Mother. The Father had parenting time during his days off, “his seven days’ time off periods.” The parties shared decision making. The Father did not claim that Judge Pahl’s Order established shared parenting. [ 7 ] The parties followed Judge Pahl’s Order. [ 8 ] The Father moved to Cold Lake in 2016. His father was ill.

He exercised parenting time every second weekend. [ 9 ] The Father deposed that in late 2017, he made plans to relocate to Vegreville so he’d be closer to the children and more involved in their lives. His ambition was to have shared parenting once the children were in school. [ 10 ] The Mother moved to Edmonton with the children. She deposed that she moved because it was difficult to manage the two children on her own.

She wished to be closer to her family in the Edmonton area. [ 11 ] Since October 2018, the Mother has worked in an Edmonton Hospital (with a break in employment that will be addressed shortly). [ 12 ] In 2017, the Father began a relationship with ELD. They married on August 18, 2018. ELD has one child from a previous relationship, RD (his age was not in evidence). The Father and Emily have one child, ND, who is about 2 years old.

ELD has been involved in the care for the children during the Father’s parenting time since around 2017. [ 13 ] The Father works for an oilfield services company although he is presently on medical leave recovering from spinal surgery. [ 14 ] The Father and ELD have a “rent to own” residence in Cold Lake, set up for four children. Each child has his or her own space. No concerns were raised respecting the Cold Lake accommodations. [ 15 ] After COVID struck parenting was altered, although the parties differ on what occurred.

What is clear is that the parties agreed that because of COVID and the Mother’s work, the children would live with the Father and ELD, the children did come to live with the Father and ELD, and the Mother too came to live with the Father and ELD for a time. The Father and ELD deposed that the children came to live with them in March 2020 and that the Mother came to live with them in August 2020 (in addition to the Father’s affidavits, an affidavit of ELD was filed).

The Mother deposed that the children did not go to Cold Lake to live until August 2020, although the children did spend more time with their Father commencing in March. She confirmed that she did come to Cold Lake and did reside with the Father and ELD as well as the children in August 2020. I could not resolve the conflicts between the claims on the record. The Mother attached some photographs of the children time-stamped with dates in May, June, and July and attached an e-transfer for $200 from the Father to her which she asserted was for child support.

This evidence was certainly relevant to her claims but not, on its face, decisive or sufficient to establish that is was likely that the children were residing with her from March until August. [ 16 ] It was uncontested that the Father and ELD helped the Mother find her own accommodations in Cold Lake and helped her find a job. [ 17 ] In October 2020, the Mother moved back to Edmonton. The Mother indicated that she wasn’t able to earn enough in Cold Lake to meet the needs of her children and herself. Her new boyfriend, PG, was also going to move in with her. She was carrying his child.

She was able to return to her job at the Hospital. [ 18 ] On October 23, 2020, the Mother signed an interim parenting agreement providing that the children would reside with the Father for the 2020/2021 school year. The Mother would have reasonable and generous access. The parenting arrangement would then be “revised and changed as necessary come the end of the 2020/2021 school year.” Decision making was to be shared. This agreement was not made with the assistance of counsel.

Neither had independent legal advice. [ 19 ] According to the Mother, “things took a turn” on November 3, 2020: Mother’s affidavit filed December 17, 2020 at para 13 (the Mother’s First Affidavit). The precise nature of that turn could not be established on the record. [ 20 ] On the one hand, the Father, relying on the agreement, opposed the Mother’s intention during her parenting time to take the children to Edmonton. In response, the Mother basically said that she was taking the children and their things and going back to Edmonton.

This dispute occurred in late November, from about November 24 to 28, and is detailed in texts exhibited to the Father’s affidavit filed December 1, 2020 (the Father’s First Affidavit). [ 21 ] On the other hand, the Mother also stated that “[s]oon after I signed that agreement, I realized that it was a mistake and my children missed me very much:” Mother’s First Affidavit at para 28. That would put the change of mind much earlier, closer to the November 3 date she mentioned.

The turn would have been her change of mind. [ 22 ] On November 27, counsel for the Father sought to have this matter put before a Justice on an emergency without notice basis. Justice Hillier directed that the application be heard on notice. [ 23 ] An application on notice was heard on November 30. The Father applied for primary care of the children with specified parenting time for the Mother. Justice Graesser granted an interim without prejudice parenting order establishing primary care of the children with the Father and setting out specified parenting time with the Mother.

The matter was reviewable in Chambers on February 8, 2021 and the Special Chambers Application date was set. [ 24 ] This Order (which does not appear to have been signed and filed) was soon varied. On December 10, the Father made another emergency application. The emergency related to information received about the Mother’s new partner, PG. Justice Graesser granted an emergency without prejudice interim parenting order confirming the primary residence of the children with the Father and requiring that

the Mother’s in-person parenting time occur in Cold Lake. The Father would provide $50 per night to the Mother to defray her hotelcosts for parenting time in Cold Lake. PG could not have contact with the children. The review and Special Chambers dates wereconfirmed. [25] The December 10 Order came before Justice Burns for review on February 8, 2021. Because of Sharepoint issues relating tothe filing and uploading of recently filed documents, no decision could be made. The matter was put over to the Special ChambersApplication date. II. Governing Principles A.

The Nature of This Decision [26] This was a Chambers application, albeit a “Special” Chambers application, based only on affidavit evidence. There was noviva voce evidence. There was no cross-examination on affidavits. There was no third-party evidence or submissions respecting thechildren’s best interests, such as a Voice of the Child report.

The children were not represented by counsel. [27] My ability to resolve any conflicts between claims in affidavits was therefore limited, unless resolution was possible based onthe texts of the affidavits themselves (e.g. because claims were merely conclusory, internally inconsistent, or manifestly incredible), inthe absence of testing by cross-examination respecting sincerity and reliability. [28] My decision is not “final.” Should the matter proceed to trial or proceedings with viva voce evidence, my findings may bereversed: Krause v Krause, 2018 ABCA 293 at para 18; Linder v Botterill, 2018 ABCA 126 at para 24. [29] I did consider whether, given the record, I should make a decision at all.

Shwaykosky v Pattison, 2015 ABCA 337 warned atpara 6 that [6] .... Except in the case of urgency and only where it is clearly in the child’s best interests, substantially changing a parentingregime in chambers without the benefit of viva voce evidence is a practice that we do not endorse. This Court has said on severaloccasions that in the absence of seriously compelling circumstances, doing so is fraught with problems, is often procedurally unfair, maylead to protracted litigation and moving children unnecessarily .... Not to decide, though, would have been to decide. The children are presently with the Father.

Were I not to decide, the children wouldremain with the Father pending trial or another Special application with viva voce evidence. Further proceedings would not likely beheard any time soon, especially since this matter is proceeding in a “regional” sitting point. The Mother seeks the children’s return to herso they may live in Edmonton. This school year is just done, but another is fast approaching and arrangements for registration must bemade. I consider myself obliged to proceed to a decision. See GTD v KAW, 2016 ABQB 427, Graesser J at para 32. B. General Principles 1.

Variation of Judge Pahl’s Order [30] Judge Pahl’s Order may be varied only if there has been a material change in circumstances: Gordon v Goertz, [1996] 2 SCR27, , 1996 CarswellSask 199, McLachlin J, as she then was, at paras 10, 12, 49 (cited to CarwellSask).

At para 13,Justice McLachlin wrote that 13 It follows that before entering on the merits of an application to vary a custody order the judge must be satisfied of: (1) a changein the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) whichmaterially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge whomade the initial order. [31] At para 16 of her concise letter, the Mother conceded that there has been a material change in circumstances based on her“mobility application.” While the Mother’s return to Edmonton might be regarded as a “change,” it might be argued that the change wasnot “material” since the Mother was seeking to confirm the parenting set in the Judge Pahl Order, to re-wind the allocation of parentingtime to the way it had been: see Gordon v Goertz at paras 14, 16. [32] Regardless, in this case, we have, in addition to the Mother’s application and concession, • the passage of time (2015 to 2021, the children’s ages advancing in TS’s case from 3 years to 8 years and in ES’s case from 8months to 6 years, both now being of school age), although that, by itself, might not be a material change: Gray v Wiegers, 2008 SKCA7 at para 25; Caharel v Caharel, 2008 ABQB 238 at para 18; Edwards v Basaraba, 2015 ABQB 594, Gill J at para 94. • the Mother’s move to Cold Lake with the children and her departure from Cold Lake. • the Mother’s new relationship with PG (more on this below) • Justice Graesser’s orders.

I find that there has been a material change in circumstances warranting consideration of a variation of Judge Pahl’s Order. 2. Mobility Features

[33] This is not a classic mobility application. Nonetheless, the application has mobility features. The Mother had primary care.She moved to Cold Lake, briefly. She relocated back to Edmonton. She sought to take the children with her but the children remained inCold Lake because of Justice Graesser’s two orders. She remains in Edmonton and the Father remains in Cold Lake. The residence of thechildren must be determined given the Mother’s move back to Edmonton. The principles governing this application, then, should includethose articulated in Gordon v Goertz. 3.

Governing Principles [34] The governing principles are set out in the Family Law Act and in Gordon v Goertz. These principles are consistent andcomplementary: GTD v KAW at para 24; BRH v RPS, 2016 ABQB 346, Graesser J at para 33. The determination of the primaryresidence of the children and of parenting time rests on the assessment of the best interests of the children. “[T]he ultimate and only issuewhen it comes to custody and access is the welfare of the child whose future is at stake:” Gordon v Goertz para 20; FLA, s. 18(1).

I must“ensure the greatest possible protection of the [children’s] physical, psychological and emotional safety,” as well as their security andwellbeing – in a word, their physical, psychological, and emotional flourishing: FLA s. 18(2)(a); Young v Young, (SCC), [1993] 4 SCR 3, McLachlin J, as she then was, at 119; DRT v KAD, 2018 ONSC 1975, Chappel J at para 45. [35] Under the applicable legislative framework, neither party bore the burden of proof on the issue of the children’s best interests.My task is to decide the children’s best interests on the evidence advanced by the parties: see RKC v GSA, 2012 ABQB 614, YamauchiJ, at para 230; Gordon v Goertz at paras 47, 49.2. [36] I am not assisted by any presumptions: Cavanaugh v Balkaron, 2008 ABCA 423 at para 12.

There is no presumption infavour of the Father, none in favour of the Mother, none in favour of the “status quo”, none in favour of change: Botticelli v Botticelli,2009 ABQB 556, Veit J at paras 17 – 21. [37] As for the “status quo,” it is at least safe to say that Justice Graesser’s orders did not, by themselves and by their own terms,constitute a new status quo since these orders were expressly characterized as “without prejudice.” “An interim without prejudiceconsent order means exactly that: it is without prejudice to the arguments and positions counsel will ultimately marshal when there is aspecial chambers hearing and further order of the court, or a trial when the final order is granted:” Krause at para 17.

I have borne inmind, though, that “the effluxion of time may eventually result in the establishment of a new status quo” from the perspective of a child:Gebert v Wilson, 2015 SKCA 139 at para 14. I will return to the problem of the different relevant time segments below. I have taken intoaccount Justice Lema’s

summary of status quo principles in PDB v AJB, 2020 ABQB 298 at para 18. [38] Because the children are of school age and because of the distance between the parties’ respective residences in Cold Lakeand Edmonton (around 300 kilometres, a 3 hour drive (or longer in winter)), a roughly equal shared parenting regime is not feasible andwas neither sought by either party nor considered by me.

Nonetheless, the principle of maximum contact with each parent, as isconsistent with the children’s best interests, remains a governing principle: DAF v SRG, 2020 ABCA 25 at paras 20-21; Gordon vGoertz at para 24. [39] I confirm that the Mother was entitled to decide where she wished to live. She was not bound to stay in Cold Lake.

She wasnot held hostage to a place: MacPhail v Karasek, 2006 ABCA 238 at paras 44 and 45. [40] My overall responsibility, adapting para 10 of Scott v MacLean, 2020 ABCA 173, is “consider what it would look like for thechildren to live in Edmonton without their Father, or to live in Cold Lake without their Mother, and determine which scenario wouldbetter serve their interests.” I acknowledge the Court of Appeal’s caution at para 15 of Scott v MacLean: [15] .... The assessment of what will be in the best interests of the children must focus on the “what ifs” of both potential scenarios.

Tosuggest that it is only the moving parent that is asking the court to predict the future is to unwittingly weigh the status quo with theproposed future move. As noted above, that approach is an error in principle: MacPhail at paras 34 – 36, 54; Christmas v Christmas,2005 ABCA 213 at para 5.

Justice McLachlin expressed this point as follows in Gordon v Goertz at para 25: “If the child's needs are likely to be best served byremaining with the custodial parent, and this consideration offsets the loss or reduction in contact with the access parent, then the judgeshould not vary custody and permit the move.” And, at para 50, “[t]he ultimate question in every case is this: what is in the best interestsof the child in all the circumstances, old as well as new?” C.

Factors to be Considered [41] The factors I must consider in determining the best interests of the children, in light of the record and “all [the children’s]needs and circumstances,” are set out in s. 18(2)(

b) of the Family Law Act (I will draw in references to Gordon v Goertz below): (

i) the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’sage and stage of development, (ii) the history of care for the child, (iii) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, (iv) the child’s views and preferences, to the extent that it is appropriate to ascertain them, (

v) any plans proposed for the child’s care and upbringing, (vi) any family violence, including its impact on

(

A) the safety of the child and other family and household members, (

B) the child’s general well-being, (

C) the ability of the person who engaged in the family violence to care for and meet the needs of the child, and (

D) the appropriateness of making an order that would require the guardians to co-operate on issues affecting the child, (vii) the nature, strength and stability of the relationship (

A) between the child and each person residing in the child’s household and any other significant person in the child’s life, and (

B) between the child and each person in respect of whom an order under this Part would apply, (viii) the ability and willingness of each person in respect of whom an order under this Part would apply (

A) to care for and meet the needs of the child, and (

B) to communicate and co-operate on issues affecting the child, (ix) taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian, (

x) the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and (xi) any civil or criminal proceedings that are relevant to the safety or well-being of the child. [ 42 ] Keeping in mind that the best interests of the child “must be ascertained from the lens of the child rather than from the parents’ perspective” ( DRT v KAD , Chappel J at para 45 ), these factors may be organized into three main groups: • factors focusing on the children, their history and relationships (ss. 18(2)(b)(i)-(iv), (vii), (ix)); Gordon v Goertz at para 49 .7 (a) (“the existing custody arrangement and relationship between the child and the custodial parent”), (b) (“the existing access arrangement and the relationship between the child and the access parent”), (c) (“the desirability of maximizing contact between the child and both parents”), (f) (“disruption to the child of a change in custody”); (g) (“disruption to the child consequent on removal from family, schools, and the community he or she has come to know”). • factors focusing on each parent, respecting the parent’s ability and willingness to care for and meet the children’s needs (ss. 18(2) (b)(v), (vi), (viii)(A), (x), (xi)). • factors focusing on the relationship of the parents, respecting their ability and willingness to promote a meaningful relationship with the other parent (ss. 18(2)(b)(v), (vi), (viii)(B), (xi)) I shall turn now to the assessment of these factors on the record.

III. Assessment A. The Children, Their History, Their Relationships 1. History [ 43 ] The children’s history has three main stages. First, the period from birth to until just before the move to Cold Lake. Second, the period in Cold Lake until just before the Father’s first application in November 2020. Third, the period from the Father’s first application in November 2020 until May 23, 2021. (

a) Birth to Just Before the Move [ 44 ] The record discloses little about the relationship of each parent to the children prior to Judge Pahl’s Order. Reference was made to the relationship of the Mother and Father as intermittent. Their relationship ended when TS was about 3 and ES was about 1. [ 45 ] I infer that the Father, though, played a significant role in the children’s young lives as an access parent. By 2015, I infer that the Father was making good efforts to be involved with the children. He applied for shared parenting.

He and the Mother instead entered into a consent order that provided for the Father’s parenting to occur in blocks of 7 days, his days off, while primary residence of the children would be with the Mother. The parties agreed to share decision making concerning the children. [ 46 ] The Father’s parenting time thereafter reduced. He moved to Cold Lake and the Mother moved to Edmonton.

The record provides little assistance in gauging the parenting time of the Father between 2016 and 2020, although there is reference to him having parenting time every second weekend. [ 47 ] From the absence of contrary evidence and the “every second weekend” reference I infer that the Father had regular,

continuous, but still relatively brief parenting time with the children until 2020. The Mother also referred in her affidavits to parenting and parenting time proceeding without incident prior to 2020. [ 48 ] The Mother and Father must have had sufficiently amicable relations and the children must have been sufficiently comfortable with staying with the Father (in the Mother’s estimation) for the Mother and Father to agree that the children would move to Cold Lake to live with the Father and ELD to weather the COVID storm. (

b) The Move to Cold Lake [ 49 ] The children moved to the Father and ELD’s home in 2020. I cannot determine whether that period started in March 2020 or August 2020. On the Mother’s evidence, the children at least spent more time with the Father from March to the end of July 2020. At least from August 2020 until October 2020 (3 months), the Father and the Mother co-parented. The Mother lived in the Father’s home. [ 50 ] In October, the Mother, it appears, returned to Edmonton. By the end of October, the Mother agreed that the children would remain with the Father until the end of the 2020/2021 school year.

By November 24, 2020, the Mother sought to have the children returned to her. [ 51 ] For about two months (October and November), then, the children were living only with the Father, ELD, and their other children. (

c) Justice Graesser’s Orders [ 52 ] Justice Graesser’s first order was granted on November 30. His second order, and the last order made before this application, was made on December 10, 2021. Both orders were expressly titled “interim without prejudice.” [ 53 ] About 6 months passed from Justice Graesser’s orders to the Special Chambers application date with the children living with the Father and ELD. [ 54 ] The Mother did not cease to have contact with her children after Justice Graesser granted the orders.

She continued to see the children at Cold Lake and continued to communicate with them by telephone and videocalls. [ 55 ] The Father submitted that the Mother did not take advantage of all available parenting time with the children extended by Justice Graesser’s orders. I do not draw any inferences adverse to the Mother from that. She is not a person of means. She had to drive to Cold Lake, when work permitted.

The Father did offer to have her visit with the children at his home to save her hotel costs, but this would have been an awkward arrangement, even without the deterioration of the relations between the Mother and the Father. [ 56 ] In this regard, I observe that there were also some limitations of the Mother’s parenting time by the Father because of COVID concerns that arose respecting the children. The evidence did not show that the Father used COVID as a pretext for limiting the Mother’s parenting time or that the Father’s invocation of COVID concerns were in bad faith.

The Father and the Mother and the children had to negotiate the difficult and unprecedented COVID environment. I draw no adverse inferences against the Father for exercising caution respecting COVID. [ 57 ] The children lived with the Father and ELD, apart from their Mother, for 8 months by the time of the application. 2. Relationships with Other Significant Persons [ 58 ] I’ll consider the evidence of relationships between the children and individuals connected with the Mother and with individuals connected with the Father. (

a) With the Mother – Other Significant Individuals [ 59 ] The Mother referred to having many family connections in the Edmonton area. Her father is in Edmonton and has assisted her in the past. Her mother and brother are in Tofield. The Mother has a sister with a 10-year old son. He is close to TS and he and TS frequently played together on weekends. The existence of these relationships is consistent with the Mother’s claim that she moved from Vegreville to Edmonton to have the benefit of family assistance. One of the Mother’s sisters is currently not working and is looking after her own children.

She has helped the Mother with childcare. [ 60 ] The Mother exhibited statutory declarations to her affidavits from family members. Since these were sworn statements, appending these statements to her affidavits was not contrary to s. 36 of Family Law Practice Note 2. (

b) With the Father – Other Significant Individuals [ 61 ] I infer from the record that the children are developing a relationship with ELD. She has been involved with their lives since about 2017. The record discloses that ELD has been taking a very active role in the parenting of the children. The children’s connection with ELD, I find, is significant. [ 62 ] The children would also be developing relationships with RD and ND. The extent of those relationships cannot be discerned from the record. ND is only 2. RD’s age was not in evidence.

There was passing mention of RD’s connection to the children in text messages. These texts were by ELD and were exhibited to the Mother’s affidavits. The text evidence was not under oath and was not elaborated by ELD. [ 63 ] The Father made no reference to siblings, grandparents, or extended family in the Cold Lake area or to their roles in the

children’s lives. 3. School and Community [ 64 ] The s. 18(2)(

b) factors expressly concern persons rather than places. This emphasis is consistent with the Court of Appeal’s caution not to put undue influence on place as opposed to effects on relationships with parents: see MacPhail v Karasek at paras 33-36 . I recognize that Gordon v Goertz refers at para 49 .7(

g) to “(

g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know.” [emphasis added] [ 65 ] Considering the children’s extra-familial linkages to Edmonton, the children were in Edmonton for about 3 years, but they were very young, ES only did a year of kindergarten and TS was in two different schools for grades 1 and 2. The family moved from a residence in the Aldergrove neighbourhood to the LaPerle neighbourhood – although these are nearly adjacent areas and both are in West Edmonton.

ES, on the evidence, was involved in some extracurricular activities including dance, but this would only have been for a short time. TS was registered in a martial arts program at his LaPerle School. [ 66 ] The children have been attending school in Cold Lake. However, that experience was doubtless disrupted by COVID and the level of connection with school would thereby be diminished. Moreover, they have attended school in Cold Lake for only the 2020/2021 term, with the possible addition of the period in March (if they had arrived in Cold Lake by then). The Father indicated that TS is on a hockey team.

ES is enrolled in Ballet and “Acro” classes. The Father did not elaborate, though, on the extent to which classes, training, games, or competitions were affected by COVID. 4. Inferences (

a) Primary Caregiving [ 67 ] I infer that during the first period of the children’s lives, from birth until just before they moved to Cold Lake, the children spent the vast majority of their time with the Mother. Their Mother was with them until October, 2020. Even if the children came to Cold Lake in March rather than August, the children were still spending time with their Mother.

The children lived apart from their Mother only for the 8 months leading up to the application, 6 of those months under the terms of the without prejudice Orders granted by Justice Graesser. [ 68 ] The children are still very young, 8 and 6.

They are not teenagers who have attained independence. [ 69 ] In my opinion, having regard to the children’s history, the nature, strength, and stability of the relationship between the Mother and the children is far stronger than the relationship with the Father (and ELD, RD and ND). [ 70 ] It would be an error of law to disregard that the Mother was the primary caregiver for the children for the majority of their lives: Milton v Letch , 2013 ABCA 248 at paras 13-15 .

I must give great weight to the likely adverse effects of removing the children from the care of their primary caregiver: GTD v KAW at para 25 ; BRH v RPS at para 47 . [ 71 ] Yet at the same time, the best interests issue requires further inquiries. In Ackerman v Ackerman , 2014 SKCA 86 , Justice Ryan-Froslie wrote as follows at para 56: [56] As pointed out by Justice Wilkinson of this Court in Gilles v.

Gilles , 2008 SKCA 97 at para. 24 , [2008] 10 W.W.R. 610, the “… characterization of a parent as a child's ‘primary caregiver’ is not, ipso facto , a judicial endorsement …”, that they are in fact the “… ‘best caregiver’… See also KGK v LTK 2021 SKCA 12 at para 33 . (

b) Other Significant Individuals [ 72 ] The Mother does have family in the Edmonton area, and the children have relationships with those family members. The record does not permit inferences much beyond that. [ 73 ] The record discloses even fewer connections to other significant individuals in the case of the Father. I do infer that the ELD has played an important role in the children’s lives. She, though, is not their mother. (

c) Extra-Familial Connections [ 74 ] I do not view extra-familial factors as having much significance in the present circumstances. [ 75 ] As for Edmonton, the children were too young and moved too often to have any important connection to community. Their link to extracurricular activities was brief. [ 76 ] As for Cold Lake, the children have not been in Cold Lake long, about 10 months (at least) by the time of the application. If they arrived in March, they would have been in Cold Lake about 15 months.

Their connections to school would be weakened by the unusual features of school attendance during COVID restrictions. Their link to extracurricular activities was brief. B. Impact on the Children [ 77 ] I have little reliable or objective evidence of the children’s views and preferences: s. 18(2)(b)(iv), Gordon v Goertz at para

49 .7(d). At ages 8 and 6, they are too young, in my opinion, to provide their views and preferences. The Mother expressly conceded this point: Mother’s Concise Letter at para 22. Further, any attempt to elicit their views and preferences directly could be harmful to them by putting them between their litigating parents. [ 78 ] What is clear is that the children are not happy. ES has cried at school and at home.

Both children have been upset after phone calls or videocalls with their Mother: see the Father’s Affidavit filed May 13, 2021 at paras 2.2(f), (g), (h), (k), Exhibit C (text from ELD) (the Father’s Third Affidavit); the Mother’s affidavit filed May 12, 2021, Exhibits B and G (the Mother’s Third Affidavit). Both ES and TS have talked to their teachers about being upset.

While this is hearsay, I cannot ignore it and I have no reason to believe that what the teachers reported was not reliable. [ 79 ] The lines of causation between the children’s feelings and the events that have overtaken and surrounded them are not crystal clear. They are away from their Mother, but she has a new man in her life.

Their Mother is not with them as much as she had been, but legal and practical constraints have limited her time with them. [ 80 ] What is also clear, though, is that, on the record, the unhappiness did not predate residence in Cold Lake and more precisely, did not predate the orders that effectively constrained the Mother’s time with the children. C. Relations of the Parents with Each Other [ 81 ] I’ll consider next the factors relating to the ability and willingness of each parent to communicate and co-operate on issues affecting the child: FLA, s. 18(2)(b)(viii)(B).

This factor is, as Justice McLachlin indicated at para 24 of Gordon v Goertz , directly related to the “maximum contact principle:” see FLS, s. 18(2)(b)(ix). If a parent will not cooperate and communicate with the other parent, a child’s relationship with that other parent would be degraded. [ 82 ] Four main areas of concern arose. 1. The Judge Pahl Order [ 83 ] The Father claimed that the Mother did not follow the shared decision making element of Judge Pahl’s Order.

The Mother did not keep him apprised of the children’s well-being. [ 84 ] The Father planned to move to Vegreville to be closer to the children and to be more involved in their lives, but the Mother then moved to Edmonton. [ 85 ] The Mother’s evidence conflicted with the Father’s. She stated that they had been cooperating and communicating prior to the Cold Lake move.

She had never frustrated the Father’s parenting time and had allowed him the time he asked for when it was possible. [ 86 ] She did move to Edmonton, but provided the explanation that she needed the assistance of family as she was raising the children herself. [ 87 ] The Father did not particularize the “major decisions” taken respecting the children that he was not party to. The nature of any communications between the parties around the Edmonton move were not in evidence.

The Father did not explain how the move to Vegreville would have worked for him given the illness of his father and his new relationship with ELD. He did not describe any steps he took to carry out his plan. [ 88 ] I observe that nothing done by the Mother after Judge Pahl’s Order and prior to the Cold Lake move occasioned the Father to take any formal steps respecting parenting. [ 89 ] I do not consider this to be a significant area of concern on the record. 2. The Agreement [ 90 ] The Mother agreed to leave the children with the Father and ELD for the 2020/2021 school year. She reneged on the agreement.

This could be interpreted as showing that the Mother cannot be trusted to follow parenting arrangements. [ 91 ] However, the issues around the agreement must be contextualized. [ 92 ] According to the Court of Appeal in Cheng v Li , 2015 ABCA 322 at para 26 , [26] …. when parties are in agreement they usually know what is best for the family, and what is in the best interests of their children. The parties must keep their promises once they are made.

If a party has compromised one advantage to achieve another, that party should not lightly be allowed to resile from the bargain freely made [ 93 ] And it is true, as Justice Slatter, as he then was, observed at para 33 of Hearn v Hearn , 2004 ABQB 75 that [33] Upholding settlements supports the principles of autonomy and finality. The modern trend is to encourage litigants to settle all outstanding disputes, and only to come to court as a last resort. Parties are encouraged to use alternate dispute resolution methods, as they have many advantages over the adversarial process which is used at trials ….

The utility of settlements in the matrimonial area would be considerably undermined if parties could sign an agreement respecting custody and access on one day, and immediately turn around and seek a variation …. [ 94 ] Nonetheless, as Justice Slatter also observed at para 34,

[34] These principles are not applied with full vigour in the family law area for several reasons. Firstly, family law disputes often manifest themselves over an extended period of time. The principle of finality must be tempered by a need to allow for changing circumstances, especially changes that could not have been anticipated when the initial decision was made. Secondly, the parties in a family dispute may be emotionally vulnerable, and there may be a significant power imbalance at the time that the agreement is made ….

Finally, family law decisions more frequently engage the rights of third parties, more specifically the rights of children who are seldom represented in court and are never the parties to settlement agreements …. [ 95 ] I agree with Justice Lema that what governs is not the private law of contract but the best interests of the children: MDS v DSM , 2020 ABQB 471 at paras 97-99 .

That is, the Mother was not bound by the agreement as she might have been bound by an ordinary contract or a Court Order. [ 96 ] A conclusion I can draw on the evidence is that the Mother changed her mind about what was in her children’s best interests. This change of mind followed a change in circumstances. The texts exhibited to the Father’s First Affidavit suggest that the Father adopted a rigid and restrictive approach to her parenting time after the agreement was in place. On the evidence, it appears that the Mother’s repudiation of the agreement was not simply unilateral or capricious.

She reacted to what she perceived was a significant change respecting her ability to parent her children. [ 97 ] The situation around the agreement shows as much issues with the Father’s communications and cooperation with the Mother as issues around the Mother’s communications and cooperation with the Father. [ 98 ] Moreover, from the Mother’s perspective, consider what had occurred: She had primary care of the children since their birth. She brought them to Cold Lake for a particular purpose, to minimize their COVID risks.

There was no evidence that she and the Father had discussed any transformation of parenting prior to coming to Cold Lake. The Mother placed trust in the Father by coming to Cold Lake. She was not making the move in the expectation that her parenting would drastically change. The Mother took her children’s best interests into account in entering into the agreement, only to find that she was (by her lights) being pushed out of their lives.

That explains her reaction. [ 99 ] I do not consider the agreement issues to show that the Mother is less inclined to cooperate with the Father than the Father is inclined to cooperate with the Mother. 3. To Litigation [ 100 ] After the falling out over the agreement, the Father immediately went to court. The Father sought an order without notice, unsuccessfully. The matter came back on notice, and Justice Graesser granted his first order in favour of the Father. [ 101 ] Given the tone of the communications between the Mother and Father, it was not likely that an out-of-court resolution would have been available.

The Mother and Father were dug in. One might argue that the Father failed to communicate and cooperate by rushing to court. But with informal resolution being unavailable and the issues around parenting requiring interim resolution, the Father’s choice appears only to have been between letting the children leave and going to court. [ 102 ] The quick move to litigation cannot be regarded as demonstrating cooperation and good communication, but in the circumstances, I do not view this as reflecting negatively on the Father. 4.

Interactions [ 103 ] The texts exhibited to the various affidavits show that most of the conversations – certainly the most useful conversations – were between ELD and the Mother, not the Father and the Mother. [ 104 ] The evidence supported the finding that ELD and the Mother have a good relationship. The Mother stated that most of the time ELD shares with her about the children’s wellbeing. The Father rarely discusses the children with her: Mother’s First Affidavit at para 24. [ 105 ] It is good that ELD and the Mother can communicate. But the difficulty is that ELD is not the children’s parent.

The Father is. [ 106 ] I can understand that in the present circumstances the Father finds it hard to talk to the Mother. The evidence though does not show that the Father is better able to communicate and cooperate with the Mother than she with him. 5. Inferences [ 107 ] On the evidence, I do not find that the Mother is less able and willing to communicate with the Father about the best interests of the children than the Father. I cannot find on the record that the Mother disregarded Judge Pahl’s Order. She did repudiate the October 2020 agreement, but I understand her reasons in context.

The Father rushed to litigation, on a without notice basis, but I understand his reasons in context as well. On the record, the Father has not been the main conduit of information about the children to the Mother. This set of factors does not pull strongly in favour of either party’s position. D. Ability and Willingness to Meet the Needs of the Children [ 108 ] The “needs” of the children are their “physical, psychological and emotional needs” including their need for stability, their need not to have their lives disrupted: s. 18(2)(b)(i); Gordon v Goertz at para 49 .7(g). 1. The Father

[ 109 ] The Father is definitely willing to take on the primary role in meeting the children’s needs. The record did not provide a lot of detail about the Father’s parenting abilities, but there was no evidence, from the Mother in particular, that his abilities were wanting. There is nothing to suggest that the Father is not a good parental figure. [ 110 ] He is presently recovering from surgery. There was no evidence about how his activities will or will not be curtailed once he has recovered. [ 111 ] He does have two other children.

His uncontested evidence was that he treats all of them equally. [ 112 ] He has arranged counselling for ES and extracurricular activities for both children. [ 113 ] He has ELD to assist him. [ 114 ] The Mother stated that in their early years, the Father moved frequently. He has been in Cold Lake, though, since 2016. He has a wife, family, and job there. He and ELD are working to purchase their residence. His life demonstrates stability. 2.

The Mother [ 115 ] The Mother was the primary care giver for the children since birth, and the only judicial reflection on that prior to Cold Lake was Judge Pahl’s Order. [ 116 ] The Father’s argument that the best interests of the children are not served by remaining with the Mother relate to her ability to parent – more specifically, to her judgment and decisions as these relate to her ability to parent. (

a) Locational Stability/Moving [ 117 ] The Father contended that the Mother has an unstable lifestyle. She moves frequently. Since the Judge Pahl Order, she moved from Vegreville to Edmonton to Cold Lake then back to Edmonton. After first moving to Edmonton, she moved from the Aldergrove to the LaPerle areas. TS has never spent more than a year at a single school. [ 118 ] There was no exploration of the move within the West End after the Mother moved to Edmonton. On the record, I can only observe that it occurred. [ 119 ] The moves between municipalities, in my opinion, do not show a lack of stability.

The Mother and the Father had been in Vegreville. He moved to Cold Lake. She moved to Edmonton. [ 120 ] Her move to Cold Lake was occasioned by the special circumstances of COVID. Both the Father and the Mother were trying to do the right thing by bringing the children to Cold Lake. [ 121 ] What of the move from Cold Lake back to Edmonton? [ 122 ] I repeat that parents have a right to move. Having touched down in Cold Lake, the Mother was not trapped there.

Further, a custodial parent’s reasons for moving are significant only exceptionally, when relevant to the parent’s ability to meet a child’s needs: Gordon v Goertz at paras, 23, 49.7(e). (But see Justice Graesser’s observation, perhaps confirmed by recent amendments to the Divorce Act , that Justice McLachlin’s caution has been more honoured in the breach than the observance: BRH v RPS at paras 48-49 .) [ 123 ] Initially, the Mother was not planning to take the children with her back to Edmonton. As reflected in the agreement, they would remain with the Father and ELD for the remainder of the school year.

The children were in good hands. The move was not to thwart the Father’s parenting. It in fact enhanced the Father’s parenting responsibilities. [ 124 ] The Father suggested that she was going back to be with her new boyfriend, PG. That would be her business. The Mother was returning to her previous employment. She could make more money in Edmonton than Cold Lake. Moreover, she had been in Cold Lake only a short time. No evidence suggested that she had planned to settle down in Cold Lake.

The agreement itself covered only some months, to the end of the school year. [ 125 ] I do not consider the Mother’s return to Edmonton to show any disregard for the children’s best interests. [ 126 ] What of the Mother’s decision to repudiate the agreement and to take the children back to Edmonton? [ 127 ] This decision had four aspects. First, the decision did pose a risk to the children’s best interests. The Mother wanted to pull the children from school toward the end of November. No evidence was led of the academic

schedule but given that there were some weeks of school left before the holiday break, the timing of the move would not have been in the children’s best interests. At the very least, a move could have occurred over the holiday break. Even then, moving a child to another school between two terms of a single academic year would probably not be in the child’s best academic interests. [ 128 ] Second, as explained earlier, the Mother was reacting emotionally to an unexpected change in the parenting arrangements with the Father.

She was, it would be fair to conclude, looking to her “rights” as a parent as opposed to the interests of the children. [ 129 ] But third, her reasons should not be interpreted as selfish only. She was concerned with the impact of the restriction on her contact with the children on her children’s wellbeing. See the Mother’s First Affidavit at para 28: “Soon after I signed that agreement, I realized that it was a mistake and my children missed me very much.” [ 130 ] Fourth, the Mother was seeking to resume the parenting she had prior to coming to Cold Lake.

She was not changing the parenting that had been in place since 2015. She was seeking to avoid changing the parenting that had been in place since 2015.

[ 131 ] Even if the decision to return to Edmonton did not run wholly against the children’s interests, where did the Mother plan to go? [ 132 ] The return to Edmonton had some concerning elements. It appears that the Mother’s first plan was to move into a home where two other adults (a couple) were also renting. The Mother indicated that PG would be moving into this home too.

In her affidavit filed March 17, 2021 (the Mother’s Second Affidavit), the Mother indicated at para 7 that she and PG “now live with my father.” By the time of the application, it appeared that the Mother was no longer living with the father. Where exactly she was living at the time of the application was not in evidence. Where she plans to live with her children is also not in evidence. The nature of the accommodations in which they would live was not in evidence. There was reference to her living with PG, but no further detail.

This matter was not explored in submissions. [ 133 ] A connected concern is that the Mother is pregnant. The arrangements that would permit her to look after a baby and the two older children were not in evidence. The Mother had referred to a best friend who babysat for her and her sister, with children of her own, who has helped with childcare.

How her current location (wherever that may be) fits into childcare plans was not apparent on the record. [ 134 ] The Mother stated that “[m]y children can still go back to LaPerle school after I spoke with them, as my driver’s licence still has my old address:” Mother’s First Affidavit at para 12. Whether an unchanged driver’s licence would support her children returning to the LaPerle school was not addressed in evidence. (

b) Lifestyle [ 135 ] The Father raised concerns that might be grouped as relating to the Mother’s lifestyle. [ 136 ] The Mother, admittedly, smokes marijuana and drinks beer: Mother’s First Affidavit at para 11. That would not distinguish her from many other Albertans.

A text from ELD showed that marijuana was used by the Father and ELD. [ 137 ] Occasional use of intoxicants, though, was not the issue. [ 138 ] The Father exhibited photographs of the Mother - selfies - posted by her on social media, showing her smoking marijuana and displaying a can of beer while driving (or while sitting in the driver’s seat of a car). The Mother retorted that “I am only 27, and enjoy to have social life ( sic ), but I always put my children as my priority. When the children are not around me or with their Father, I have my adult times:” Mother’s First Affidavit at para 11.

The Mother stated that her recreational activities have never impaired her work. She doesn’t use anything when she has her children with her. [ 139 ] The evidence did not suggest that accessing the photographs in question was in any way difficult. Photographs like those exhibited to the Father’s materials would have been only a few clicks or swipes away from the children’s eyes. [ 140 ] These photographs raise two difficulties. [ 141 ] First, these photographs did not show the Mother in a good light as a role model for her children. A clear implication of the photographs was that she was having fun.

The children, if they saw the photographs, could be inclined to have that sort of fun too. [ 142 ] Second, these photographs were made public. The Mother wanted the world to see these photographs. She was showing what was important to her. But what should have been important to her should not have been intoxicated fun, but being a good mother. [ 143 ] Motivating the Father’s concern was the conclusion that the Mother was distracted by at best irrelevancies and at worst lifestyle choices incompatible with good parenting. [ 144 ] The Mother also gave the children a tablet. The children had the tablet at Cold Lake.

ND was playing with the tablet and saw a photo, which prompted him to say “candy, candy, candy.” ELD went to see what ND was referring to. What she saw was what she believed was a photo of a tablet on a person’s tongue. There were other photographs, some showing the Mother, involving drinking, smoking marijuana, and drug paraphernalia: ELD Affidavit at para 9. [ 145 ] The Mother stated that “I deny those photos with the acid stickers are me. The Father has had the ipad since August … and I had erased all the photos on the ipad:” Mother’s First Affidavit at para 20.

I accept that any photographs showing a person with any form of LSD are not photographs of the Mother. That does not explain the other photographs. The simplest explanation, implicit in the Mother’s response, is that the other photographs had been on the iPad. The photographs had not been erased. [ 146 ] The photographs on the tablet raised two concerns: Coupled with the posted photographs, these photographs demonstrate an excessive interest in intoxication related matters, contributing to the conclusion about the Mother’s distraction.

Further, some of the timestamps on photographs of the Mother show that the Mother had been smoking marijuana shortly before her children were with her: ELD Affidavit at para 10, Exhibit B. [ 147 ] All of this being said, there was in fact no evidence that the children had been exposed to drug use.

Neither was there evidence of neglect or maltreatment of the children by the Mother because of drug use. [ 148 ] A final “lifestyle” concern raised by the Father related to a photograph, apparently taken in the residence where the Mother had lived with the couple, depicting an offensive decoration: Father’s First Affidavit at para 16, Exhibit C. This was not the sort of object that children should be exposed to. The photograph did not establish, though, whether the object belonged to the Mother or why it was present. (

c) The Mother’s New Partner [ 149 ] The most serious concerns relating to the Mother’s judgment and to her lack of prioritization of the best interests of the children

related to her boyfriend, PG. I will consider the form of evidence relating to PG, PG’s response, and the Mother’s responses to the concerns about PG. (

i) Form of Evidence [ 150 ] The allegations concerning PG were initially set out in ELD’s Affidavit. She reported information provided to her by PG’s ex- partner, AG. [ 151 ] ELD’s reports, then, were hearsay. The Mother’s counsel did not object to the admissibility of this affidavit. [ 152 ] There is an argument that because the application was not one for final relief but for interim relief only, hearsay is permissible. See rule 13.18: 13.18(1) An affidavit may be sworn (

a) on the basis of personal knowledge, or (

b) on the basis of information known to the person swearing the affidavit and that person’s belief.

(2) If an affidavit is sworn on the basis of information and belief, the source of the information must be disclosed in the affidavit.

(3) If an affidavit is used in support of an application that may dispose of all or part of a claim, the affidavit must be sworn on the basis of the personal knowledge of the person swearing the affidavit. [ 153 ] The Court of Appeal confirmed at para 11 of DAF v SRG that para 36 of Family Law Practice Note 2 bars appending letters or unsworn statements from third parties to affidavits filed by the parties: The court may not consider hearsay evidence contained in letters or unsworn statements authored by third parties that are appended to affidavits. (emphasis added [in original]) In this case, though, the information from AG was not in a letter or unsworn statement appended to an affidavit.

ELD reported what she had been told. [ 154 ] Even if para 36 is not directly engaged, the Court of Appeal also warned at para 19 of DAF v SRG that decisions in family law cases [19] …. have potentially profound consequences for the parties and the children involved. For this reason, judges have an obligation to determine the admissibility and validity of the evidence before them and do their best to ascertain the truth, even if brief adjournments are necessary. The parties already had about 6 months before the application to deal with the evidence.

I did not consider an adjournment to have been useful or expedient. [ 155 ] Assuming that rule 13.18 would not extend to make ELD’s reports of AG’s observations admissible, those reports might have been admissible under the principled exception to the hearsay rule. Necessity might have been made out because AG refused to provide an affidavit herself because of fears of violence from PG.

AG’s position might appear inconsistent, since she would be exposing herself to the same risks by directly providing information as by indirectly providing information, but practically the only way to get the information before the Court was by ELD’s affidavit. Necessity relates to the unavailability of a witness’s testimony not the unavailability of the witness: R v Khelawon , 2006 SCC 57 at para 78 . Reliability could have been difficult to make out, since AG and PG are, it appears, in litigation relating to their children.

However, elements of AG’s reports were corroborated by other evidence. [ 156 ] That corroboration makes it possible to side-step the admissibility issue relating to AG’s hearsay in ELD’s affidavit. The corroboration was derived from an affidavit filed by PG himself. He referred to the information set out in ELD’s affidavit and provided his own account of what occurred.

I can rely on PG’s own evidence, in his personal knowledge affidavit, and not on what is found in ELD’s affidavit. [ 157 ] I have cautioned myself not to rely on stereotypes of dangerousness respecting persons with mental health issues. [ 158 ] I have also borne in mind para 11 of HG v RG , 2017 ABCA 89 : [11] Before being satisfied that an order is in the best interests of the children, when there are allegations of family violence (however conflicting the evidence may be) a chambers judge must assess the nature and extent of the violence: section 18(2) (b)(vi) of the Family Law Act , SA 2003, c F-4.5 .

This principle applies to both final and interim orders. Given the evidence, I must address risk to the children. (ii) PG’s Response [ 159 ] AG had claimed that PG had injured their son’s ear when he was trying to get the son into his bedroom. Photographs showing an injured ear were found in Exhibit C to ELD’s Affidavit. [ 160 ] PG stated at para 7 of his affidavit that “I was trying to discipline our son.” He said that “I might have used too much force and he got pushed to the carpet.” He denied kicking his son.

In Exhibit A to his affidavit, PG texted that “I did not kick him in the head, I shoved him in his room with my foot to close the door and he got a carpet burn on his ear.”

[ 161 ] AG had claimed that PG had dislocated his child’s arms when removing him from the crib. PG stated at para 8 of his affidavit that the injury occurred when he had tossed the baby in the air during play. The child was taken to the hospital. The doctor said that the injury was “not serious.” [ 162 ] AG had claimed that PG had injured his daughter’s legs. PG stated at para 8 of his affidavit that the injury occurred when he was trying to change her diaper. She was kicking her legs a lot. The child was taken to the hospital.

The doctor said that the injury was “not serious.” [ 163 ] AG had claimed that PG had thrown a circular saw at her. PG responded at para 10 of his affidavit that he didn’t throw it at her, he threw it on the floor. [ 164 ] AG had provided ELD with a text in which PG admitted to AG that he was abusive and dangerous: ELD Affidavit at para 20, Exhibit D.

PG responded at para 6 of his affidavit that AG had insisted that he write the e-mail. (That is, he did not deny that he wrote it.) He provided no particulars about how or why AG had “insisted” or why he had done what she asked. [ 165 ] AG had provided social media posts that indicated that PG was suicidal: ELD Affidavit at para 21, Exhibit E.

Authorship of these posts was not denied by PG. [ 166 ] PG confirmed that he had been an in-patient on a psychiatric ward in September 2020, for depression: PG Affidavit at para 12. [ 167 ] As Exhibit C to his affidavit, PG attached a very short letter from a psychiatrist in Red Deer dated December 15, 2020. The psychiatrist, Dr. J.A.

D’Costa, confirmed that PG “has been diagnosed with major depressive disorder, recurrent, with anxious distress.” The psychiatrist stated that PG is “receiving treatment for his condition which is now stable” and “[h]e is not a danger to himself or others.” The psychiatrist confirmed that PG was “under my care from Sept 21-25, 2020.” [ 168 ] As Exhibit D to his affidavit, PG attached an unsworn note from his employer attesting to him being “patient and even- [keeled].” This exhibit must be disregarded under para 36 of Family Law Practice Note 2.

Regardless, conduct in the workplace is not necessarily a good indicator of conduct in the home. [ 169 ] Exhibit E to PG’s affidavit is a statutory declaration by a friend of PG’s who offers the opinion that “he is a safe person for children to be around,” based on interactions with PG over the last year. [ 170 ] What can I infer from PG’s own evidence? [ 171 ] I do acknowledge the possibility that AG’s accounts have been shaded by her litigation against PG. [ 172 ] I also acknowledge that the events occurred some years ago. [ 173 ] PG “has been diagnosed” with depression. [ 174 ] He has received treatment. [ 175 ] The psychiatrist’s letter, though, has little weight.

The conclusion respecting dangerousness was just that – a conclusion alone with no supporting information. The psychiatrist had PG under his care for only 5 days. No reference was made to any testing or to any psychiatric history review. It is not clear whether the psychiatrist made the diagnosis of the depressive disorder or some other professional did so. Moreover, the opinion provided related to PG’s depression and suicidal ideations. The opinion did not concern domestic violence. [ 176 ] PG confirmed injuring his own children on three occasions. Once may be an accident.

With three times a pattern of violent conduct begins to emerge. [ 177 ] I infer that the suicidal ideations were what resulted in PG’s psychiatric treatment. Suicide poses two types of risks to children. Children may witness self-directed violence.

A willingness to take one’s own life may be coupled with a willingness to harm others. [ 178 ] On the evidence, PG poses a risk to the physical safety of the children. [ 179 ] That was the message clearly sent by both Justice Graesser and Justice Burns: Mother’s Second Affidavit, Exhibit A; Mother’s Third Affidavit, Exhibit C (Transcript), 9.33-38. (iii) The Mother’s Response [ 180 ] Fundamentally, the Mother’s response has been to deny that PG poses a risk. [ 181 ] She stated that PG was taking his medication, which is important. [ 182 ] She observed that “[t]here never was any criminal charges or CFS involvement:” Mother’s First Affidavit at para 21.

That is not necessarily exonerating, but if physicians had suspected child abuse, some official intervention would be expected. The absence of evidence can be relevant. [ 183 ] The Mother deposed that PG “is definitely a very easy going chill person. I have never seen him being angry or being abusive to anyone:” Mother’s Third Affidavit, May 12, 2021 at para 6. In his statutory declaration attached to her Third Affidavit, the Mother’s father confirmed that he had not seen PG be moody or violent. PG and the Mother had lived with her father for a month and he said that “I have gotten to know [PG] much more.”

[ 184 ] What the Mother did not do is provide any psychological evaluations of PG. She did not provide any psychiatric records respecting PG. She did not set out a plan for supervision of PG. E. Conclusion [ 185 ] Once more, my overall responsibility is to consider what it would look like for the children to live in Edmonton without their Father, or to live in Cold Lake without their Mother, and determine which scenario would better serve the children’s interests. 1. Primary Care of the Children (

a) History of Care [ 186 ] I found that the Mother has been the primary caregiver for the children for nearly all of their lives. The children are still very young, 8 and 6. In my opinion, with regard to the children’s history, the nature, strength, and stability of the relationship between the Mother and the children is far stronger than the relationship with the Father. [ 187 ] This factor favours returning primary care of the children to the Mother. (

b) Other Significant Individuals [ 188 ] The Mother does have family in the Edmonton area and the children have relationships with those family members. On the Father’s side, the record supports a finding of a strong connection to ELD but to no other individuals beyond the Father’s immediate family. The connection of the children to the Father’s other children was not developed on the evidence. [ 189 ] This factor favours returning primary care of the children to the Mother. (

c) Extra-Familial Connections [ 190 ] I do not view extra-familial factors as having much significance in the present circumstances. I did not find that the children had any significant connections to school, extracurricular activities, or community in Edmonton or Cold Lake. (

d) Effect on the Father’s Parenting [ 191 ] Unlike a typical mobility case, if the children were in Edmonton, the Father’s pre-Cold Lake parenting position would not be changed. What the Mother seeks is a return to the way things were. It is the Father who seeks change. [ 192 ] This is to say that the parenting the Mother seeks would not leave the Father in a different position than he has been in since 2015. There is no “cost” to the Father’s parenting to weigh against the Mother resuming primary care of the children. (

e) Impact on the Children [ 193 ] What is clear is that the children are not happy and that this unhappiness did not predate residence in Cold Lake and more precisely, did not predate the orders that effectively constrained the Mother’s time with the children. [ 194 ] I am not a psychologist and I know that correlation is not causality, but I find that it is probable that the children’s unhappiness has been caused by their separation from their Mother. [ 195 ] More bluntly, staying in Cold Lake away from their Mother is hurting the children. [ 196 ] I recognize that TS, in particular, may be angry with his Mother and may fear being replaced by her boyfriend.

If she had greater contact with him, though, his concerns could be addressed. I view any difficulties the children may be expressing with their Mother as arising from separation from their Mother rather than from anything else that has occurred. [ 197 ] In my view, the psychological and emotional well-being of the children would be improved by their returning to the primary care of their Mother. (

f) Cooperation and Communication [ 198 ] I do not find that the Mother has any history of denying parenting time to the Father. The difficulties in communicating and cooperating that the parties are suffering were caused by the breakdown in their relationship in November 2020, exacerbated by the litigation that followed. There was intransigence on both sides. [ 199 ] The Mother has continued to communicate throughout. The Father has not. ELD has communicated for him. [ 200 ] A return to primary care by the Mother would, in my view, reduce the conflict between the parties. They can be expected to revert to the cooperation that appears to have characterized the relations pre-Cold Lake. (

g) Parenting Ability [ 201 ] In terms of parenting ability, the Mother raised the children, primarily by herself, up until the children came to Cold Lake.

[ 202 ] There are no concerns with the Father’s parenting ability, although he has had less opportunity than the Mother to demonstrate that ability with the children. [ 203 ] I found that the Mother’s attempt to remove the children from school in Cold Lake toward the end of November was not in the children’s best interests. The Mother was reacting emotionally to the Father, and she put her parenting position ahead of the interests of her children. This was a mistake. I did recognize though that there were some mitigating aspects to her decision.

The Mother was concerned with her children’s emotional health and she was seeking a return to the pre-Cold Lake arrangements. She was not seeking to impose a new type of parenting arrangement. [ 204 ] There is a shortage of evidence around the Mother’s current accommodations in Edmonton and parenting plans and plans for school registration. [ 205 ] The Mother has had lapses of judgment relating to her social media posts, the photographs found on the iPad, and the conduct connected to those posts. One way to describe her error is that she thought she has “my adult time” separate from her time as a mother.

She is and must be a full-time mother. She is responsible for being a good role-model for her children. She should not promote intoxication and irresponsibility. [ 206 ] I do not view these matters as serious obstacles to the Mother’s endeavor to regain primary parenting for her children when set against the factors that support the return of primary parenting to her. The Mother has weaknesses. She has made mistakes. Much the same can be said of us all. [ 207 ] The most serious concerns relate to PG. On the record he does represent risks to the children based on his own responses to the incidents described by AG.

The Mother has not, in my opinion, appreciated those risks. The Mother has not provided any concrete plan for dealing with the risks represented by PG. [ 208 ] This factor alone could dictate that the children remain with their Father. [ 209 ] However, I recognize that the Mother has lived with PG. Her father supports her assessment of him. The events alleged against PG took place around 4 years ago, according to the Mother. PG has had some diagnosis and treatment.

He is taking medication. [ 210 ] Further, management of PG’s risk is feasible: • In a draft Order, the Mother proposed that, until further Court Order, she shall ensure that the children are not left in PG’s care alone. He shall be with the children only when another adult is present. The Mother, I understand, is starting maternity leave, so she would be home to supervise. Her father and two sisters, as well as her friend who helps with childcare, could also assist. • Electronic communication with the children by the Father is contemplated.

That communication should not be in the presence or within earshot of the Mother and PG. That would permit the children to speak freely and to convey any concerns. • The draft Order also contemplates that if the Father has evidence that PG has had contact with the children without another adult being present, parenting may be reviewed without need of proof of a material change in circumstances. • PG should submit to a complete mental health assessment by certified psychologist or psychiatrist respecting his risk to the children.

PG would provide a copy of the assessment report to the Mother’s counsel and to the Father’s counsel. • Upon submission of the assessment, this matter could be returned to me for review as regards the conditions respecting PG. [ 211 ] In my opinion, these measures would deal adequately with the risk represented by PG. (

h) Conclusion [ 212 ] The history of care for the children, the presence of extended family in Edmonton, and the psychological and emotional hardship caused to the children by separation from their Mother support the Mother having primary care of the children. Confirming primary care to the Mother returns the parties to the parenting status quo that prevailed before the arrangements made at Cold Lake. The Mother has made some errors relating to her parenting but her mistakes do not outweigh the benefits of the children being returned to her care.

PG does represent a risk to the children, but measures can be imposed to manage that risk. [ 213 ] For these reasons, the Mother’s cross-application is granted and the Mother shall have primary day to day care of the children. 2. Decision-Making [ 214 ] Under Judge Pahl’s Order, the parties shared joint decision making respecting the children.

That allocation of responsibility worked, in my view, until conflict arose through the arrangements made at Cold Lake. [ 215 ] With the resolution of the parenting issue, I anticipate that the parties will be able to resume the communication and cooperation that had carried them through the five years that preceded the present litigation. [ 216 ] The parties shall therefore have joint decision-making respecting all major decisions affecting the children’s health, education, and well-being. 3.

Child Support [ 217 ] Submissions in this afternoon Special Chambers application had not reached the point of addressing child support by 6:30 p.m.

(This was the third Special Chambers application of the day.) Child support would turn on the parenting determination. There was an imputation claim respecting the Mother. I therefore adjourned the Child Support issue. IV. Costs [ 218 ] In his draft Order, the Father sought costs directly from the Mother’s counsel for $4,450, for failure to comply with the deadlines and filing requirements of Family Law Practice Note 2. [ 219 ] The progress of the Mother’s filings was marked by a series of mis-steps.

The Mother’s First Affidavit was, it appears, served in unfiled form for the December 10 application before Justice Graesser but was not filed until December 17, 2020. The Mother’s cross- application was filed on time but served late, on January 18, 2021, the date that the Father’s concise letter was filed.

An unfiled copy of the Mother’s concise letter was served on time but was filed late. [ 220 ] Costs may be awarded against a lawyer under rule 10.50: 10.50 If a lawyer for a party engages in serious misconduct, the Court may order the lawyer to pay a costs award with respect to a person named in the order. [ 221 ] The criteria for awarding costs against a lawyer are described by Justice Gascon at para 29 of Quebec (Director of Criminal and Penal Prosecutions) v Jodoin , 2017 SCC 26 : [29] In my opinion, therefore, an award of costs against a lawyer personally can be justified only on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice.

This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate. Thus, a lawyer may not knowingly use judicial resources for a purely dilatory purpose with the sole objective of obstructing the orderly conduct of the judicial process in a calculated manner. See 1985 Sawridge Trust v Alberta (Public Trustee) , 2019 ABCA 244 at para 15 . [ 222 ] Counsel for the Mother made some errors.

Mere mistakes do not justify such an award – “there must be at the very least gross neglect or inaccuracy:” 1985 Sawridge Trust v Alberta (Public Trustee) , 2019 ABCA 243 at para 41 ; see also paras 35-40. [ 223 ] The errors caused no prejudice and counsel for the Mother offered redress by way of permitting a reply affidavit by the Father. The timing of receipt of materials gave ample opportunity for preparation for the application. I shall not award costs directly against the Mother’s counsel. [ 224 ] I acknowledge the Court of Appeal’s observation in Henderson v Micetich , 2021 ABCA 103 at para 26 : [26] ….

If departure … from the practice notes and rules of the court is too readily condoned, it could also become routine to the ultimate defeat of the purpose of those practice notes and rules. Rule compliance promotes a fair and orderly hearing process. Deterrence of rule-breaking is a way to promote rule-following. Deterrence may be achieved through a costs disposition. [ 225 ] The Mother was successful in her cross-application. She shall have costs under Column 1, less $250 for the procedural irregularities.

If the parties cannot agree on any other issues respecting costs, the parties may make written submissions to the Court within 60 days of from the date of this decision and I will respond in writing. V. Form of Order [ 226 ] At my invitation, the parties provided draft forms of Orders, which I have reviewed.

The form of Order arising from my decision shall reflect the following: • The Order will be dated July 20, 2021. • The Applicant’s application is dismissed. • The parties shall have joint decision-making with respect to all major decisions affecting the children’s health, education and well- being. • The Mother shall have primary residential day to day care of the children. • I approve of the Mother’s suggestion that the parties shall have a two-week on/two week off parenting arrangement for the rest of this summer, until the last week of August.

The first two-week block will be with the Mother, since the Father has had parenting for the last months. The commencement of this arrangement will be July 26, 2021. This arrangement may be varied by agreement of the parties. The children will have to be back with the Mother for the start of school. Effective September 1, 2021, the Mother shall resume primary residential day to day care of the children. • The Father shall have parenting time with the children every second weekend from Friday at 4:00 p.m. to Sunday at 7:00 p.m.

Should the children not have school on Friday or Monday, the Father’s parenting time shall be extended to include the no-school day(s). • The Father shall have, in addition, such reasonable and generous parenting time with the children as the parties may agree.

• The Father shall have at least two te

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