VC v BH, 2021 ABQB 575

Court of Queen’s Bench of Alberta Citation: VC v BH, 2021 ABQB 575 Date: 20210722 Docket: 4801 168470 Registry: Calgary Between: VC Plaintiff - and - BH Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice C.M. Jones _______________________________________________________ I. Introduction [ 1 ] BH and VC have two children (Children). Their son, CH, was born in 2010. Their daughter, SH, was born in 2013. [ 2 ] Currently, by Order of this Court, the Children reside with BH’s mother and father in Cardston, Alberta.

BH and his father, BRH (Grandfather), are by Order of this Court, the children’s guardians. [ 3 ] BH seeks permission to relocate with the children to San Diego, California (Relocation). At the same time he wishes to have his sister, KM, who lives in San Diego, become a joint guardian of the children. [ 4 ] To that end, KM has made application to this Court for parenting and decision-making responsibilities for the children. She

seeks an Order that she be added a joint guardian for the children, together with BH and the Grandfather. [ 5 ] VC opposes BH’s application and KM’s application. She also seeks termination of guardianship and decision making for the children granted to the Grandfather. [ 6 ] She wishes to have primary care of the children returned to her. She seeks to have primary decision-making responsibility for the children vested in her. II. Outline of this Decision [ 7 ] I begin by providing background and context to these applications. [ 8 ] I then discuss VC’s mental health issues.

I do so because those issues are what has prompted the applications advanced by BH and KM. [ 9 ] But for those mental health issues, there would appear to be no argument that removal of the Children from Canada and vesting primary care of them with their paternal aunt would be in the Children’s best interests. [ 10 ] I then turn to BH’s application to relocate the Children to San Diego (Relocation). I start by examining the parties’ arguments regarding the application of relevant provisions of the Divorce Act RSC 1985, c 3 (2nd Supp ) ( Divorce Act ).

Those provisions focus attention on the best interests of the Children. Amendments thereto also provide guidance specific to the issue of relocation. [ 11 ] I then consider each of BH’s and VC’s additional arguments for and against, respectively, the proposed Relocation. [ 12 ] Next, I review the testimony of two witnesses who have were involved with the parties, in particular, the Children and VC. Both of these witnesses were in a position to shed some light on the implications of VC’s mental health issues. [ 13 ] Then, I briefly review the basis for KM’s guardianship application.

Her application is inextricably linked to BH’s Relocation application. [ 14 ] Not satisfied that I had thoroughly canvassed all considerations relevant to Relocation during the trial before me, I posed ten written questions to the parties. I discuss their respective responses to those questions. [ 15 ] Lastly, I provide my analysis and conclusions. I determine that the best interests of the Children will be addressed by returning the Children to VC’s primary care, provided she engages in a rigorous program which will ensure that her mental health issues are effectively managed. III.

Background [ 16 ] BH and VC were married on January 7, 2008. The separated in May of 2015 and were divorced on May 3, 2016. [ 17 ] As noted in BH’s brief, the parenting arrangements have fluctuated over time. BH has had primary care of the Children during some periods, while VC had had primary care of the Children during periods in which BH worked overseas. BH and VC also shared parenting responsibilities during other periods.

I find, however, that, prior to December 2020, VC has primarily cared for the Children. [ 18 ] On December 11, 2020, this Court suspended VC’s custody and parenting rights indefinitely, following a recurrence of VC’s mental health challenges (Devlin December 11, 2020 Parenting Order). That Order also granted joint custody and parenting of the children to BH and the Grandfather. I discuss that Order in more detail below. [ 19 ] On May 21, 2021, VC filed an application seeking the following relief: 1. Dismissing BH’s application for Relocation; 2.

Terminating BH’s guardianship and decision making for the Children; 3. Removing the restraining order against her; 4. Resuming her primary custody of and decision making for the Children; 5. Terminating the Grandfather’s guardianship and decision making for the Children; 6. Dismissing KM’s application for guardianship; 7. Directing BH to pay child support in the amount of $3,000 per month to VC; and 8. Costs. [ 20 ] Earlier, on March 9, 2021, VC had made a similar application on an emergency basis. She sought to have the Children removed from the Grandfather’s care and returned to her.

She also sought direction that BH attend to examinations at a mental hospital. [ 21 ] VC’s March application was dismissed in its entirety and she was ordered to pay $3000 in costs. [ 22 ] As noted above, BH proposes to relocate to San Diego, California. He works overseas in connection with his drilling

supervisor activities. He has blocks of time when he is able to return to North America. [ 23 ] He notes in his Affidavit of April 1, 2021 that it became necessary in December of 2020 to take steps on an emergency basis to change parenting arrangements. Those steps were necessitated by VC’s mental health issues. [ 24 ] Given his overseas work responsibilities, it became necessary to have the Grandfather appointed to assume parenting responsibilities for the Children. [ 25 ] The application to have the Grandfather appointed to share guardianship and parenting with BH was supported by Child and Family Services. IV.

VC’s Issues [ 26 ] VC acknowledges that she suffers from bi-polar disorder. She is alleged to also suffer from Unspecified Psychotic Disorder. She also acknowledges that she had not been diligent in taking her medication. [ 27 ] She has been the subject of Community Treatment Orders. Exhibit 2 in the trial before me was entitled Issuance Community Treatment Order (Form 19). It was dated May 3, 2021. [ 28 ] It required VC to take antipsychotics as prescribed.

She was to receive treatment or care from the Community Extension Team, specifically, a Mental Health Clinician. [ 29 ] The Mental Health Clinician was tasked with administering VC’s medication, monitoring her compliance and mental status and supporting her transition to a long-term program. [ 30 ] She was to be under the care of Dr. B. Sowa, Psychiatrist. Dr. Sowa was to be responsible for the supervision of this Community Treatment Order. [ 31 ] In BH’s view, when VC neglects to take her medication she neglects the children.

He claims that she experiences extreme swings in mood, thoughts and behavior. [ 32 ] In the late Fall and early Winter of 2020, VC suffered a mental health relapse. Affidavits filed by her on November 27 and December 1, 2020 show that she had a tenuous grip on reality at that time. [ 33 ] Her characterizations of BH, her exaggerated and spurious accusations of inappropriate behavior on his part and her incorporation of the perception of spirits in her day to day interactions with the Children, as reflected in those Affidavits, provided ample justification for the Devlin December 11, 2020 Parenting Order.

At that time, the Children’s best interests were clearly served by removing them from VC’s care. [ 34 ] BH acknowledges that he trusts VC as a parent and a mother while she is on her medication. However, hospitalization is sometimes required when she fails to take her medication. Prior instances of hospitalization occurred in April, 2014, September, 2015, September, 2016 and November, 2018. She was also hospitalized in the Spring of this year. [ 35 ] BH’s Affidavit of April 2, 2021 recites incidences which certainly raise anxieties in the mind of a reasonable person about VC’s grip on reality.

Some of her actions and comments could arguably be manifestations of her religious beliefs. Irrespective of the source of her delusions, as noted above, the contents of Affidavits she filed on November 27 and December 1, 2020 are very alarming. [ 36 ] It was necessary for Child and Family Services to become involved in the Fall of 2020.

VC had isolated the Children and removed them from school without BH’s knowledge or consent. [ 37 ] BH’s concerns for the Children’s welfare stem from the recurring nature of VC’s mental health episodes, due, it would appear, to her unwillingness to take prescribed medication. [ 38 ] In response to VC’s deteriorating mental health status in November and December of 2020, BH sought and obtained the Devlin December 11, 2020 Parenting Order. He had overseas work responsibilities at the time.

That Order, inter alia : 1. vested joint legal custody and decision making with respect to the Children in BH and the Grandfather. 2. suspended VC’s custodial and parental rights until further order of this Court; 3. vested the Grandfather with primary case and day to day parenting of the Children; provided that when BH was physically present in Canada he was to have primary care and day to day parenting of the Children; 4. denied VC any parenting time or contact with the Children except when BH and the Grandfather saw fit; and 5. prohibited VC from attending within one kilometer of the Grandfather’s home, the Children’s school or anywhere else she believed the Children to be. [ 39 ] The Devlin December 11, 2020 Parenting Order remains in place, despite VC’s failed attempts in March of this year to have it set aside. [ 40 ] I turn now to a discussion of the Relocation application.

V. The Relocation Application A. The Parties’ Arguments Regarding the Application of the Factors in

Section 16 of the Divorce Act [ 41 ] Recent amendments to the Divorce Act include specific provisions which address relocation. Each of the parties provided written briefs which address their respective views regarding the provisions of the Divorce Act applicable to a determination of the best interests of the children, particularly in the context of BH’s proposed Relocation. [ 42 ] Below I discuss the considerations found in sections 16 through 16.92 of the Divorce Act which one or both of the parties chose to address in their written closing argument.

Best Interests of the children Section 16 (2) – the Children’s physical, emotional and psychological safety, security and well-being [ 43 ] BH argues that a move to San Diego is necessary to protect the Children’s emotional and psychological wellbeing. [ 44 ] VC points to the testimony of Mr. Poberezny at the hearing before Justice Devlin on December 11, 2020. Mr. Poberezny is a social worker with CFS whose testimony before me I discuss in more detail below.

Before Justice Devlin, he noted that in respect of the Children that: I do not believe that there are any issues with their day-to-day care and that they are having all their needs met. They are being supported by mom. They do have food. They are in an appropriate dwelling that’s furnished and heating. They are quite well taken care of. [ 45 ] VC notes that during the brief time she received parenting time in 2021, she took the Children to their doctor, their dentist and she registered them for school.

She argues that when the Children were in the primary care of BH and the Grandfather, the Children did not attend school, despite an Order of this Court directing BH and Grandfather to enroll them. Section 16(3)(a) – the Children’s needs, given their age and stage of development [ 46 ] BH argues that the Relocation will prioritize stability for the Children by putting in place a stable and consistent home and caregiver and connections to the community. Currently, as between himself and VC, BH is the Children’s sole caregiver.

In the context of his current and relatively brief status as the Children’s sole caregiver, he believes the Relocation best addresses the Children’s needs. [ 47 ] VC argues that, except during her brief hospitalizations, she has provided stable long-term care for the Children. She points out that CH is on the autism spectrum disorder. She believes that amongst the available options, she is solely qualified to care for him and his needs.

Section 16(3)(b) – the nature and strength of the Children’s relationship with each spouse, each of the Children’s siblings and grandparents and any other person that plays an important role in the Children’s lives [ 48 ] BH argues that it would be detrimental to the Children to remove them from his care.

Currently, VC does not have any custodial rights or specified parenting time. [ 49 ] I note that the Grandfather’s involvement appears to be necessitated by the fact that BH is not in a position to exercise day to day care and custody due to his overseas work commitment. [ 50 ] VC argues that BH has limited interest in parenting the Children. She claims this was demonstrated by his return to Canada in January of 2021. She alleges that shortly after he returned from work overseas he returned the Children to VC’s care for several weeks.

Section 16(3)(c) – each spouse’s willingness to support the development and maintenance of the Children’s relationship with the other spouse [ 51 ] BH claims that he has demonstrated a willingness to communicate with VC. He has supported her relationship with the Children, despite the challenges he has encountered in doing so. [ 52 ] VC points out that the current parenting order provides her with parenting time as agreed by the guardians. But, she argues, she has not been granted any parenting time with the Children since May of this year.

She asserts that either BH or the Grandfather are unwilling to accommodate her reasonable requests for parenting time. Section 16(3)(d) – history of care of the Children [ 53 ] VC argues that both during the parties marriage and after separation, she was the primary care parent. She was a stay-at- home mother throughout the relationship. BH would have parenting time during afternoons whenever he wished and was home from work throughout the parties’ separation. Section 16(3)(e) – the Children’s views and preference, giving due weight to the Children’s ages and

maturity unless they cannot be ascertained [ 54 ] There is no evidence before the court regarding the Children’s views. Section 16(3)(h) – the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the Children [ 55 ] BH asserts that he has been caring for and meeting the needs of the Children. He argues that VC has struggled to meet the Children’s emotional needs. [ 56 ] VC argues that she is capable of meeting the Children’s needs and willing to do so. She claims that how the Children will react to the Relocation is unknown. She is worried that they may suffer if removed from their current school and her care.

Section 16.92(1)(a) – the reasons for the Relocation [ 57 ] BH argues that the purpose of the Relocation is to benefit the Children by providing a stable and long-term plan for their care. The Relocation would also allow BH to seek work closer to home. [ 58 ] VC argues that BH is pursuing Relocation because he believes there are no better options. VC believes the Grandfather has struggled to meet the Children’s needs.

Section 16.92(1)(b) – the impact of the Relocation on the Children BH claims that the Children do not presently have any close ties to the Calgary community. They have limited extended family in Alberta.

Section 16.92(1)(c) – the amount of time spent with the Children by each person who has parenting time or a pending application for a parenting order and the level of involvement in the Children’s lives of each of those persons [ 59 ] VC argues that neither BH nor KM have spent significant time with the Children.

Section 16.92(1)(d) – whether the person who intends to relocate the Children has complied with any applicable notice requirement under

section 16.9, provincial family law legislation, an order, arbitral award or agreement. [ 60 ] VC alleges that BH did not comply with the notice requirement under

section 16.9 of the Divorce Act .

Section 16.92(1)(g) – whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligation under family law legislation, an order, arbitral award, or agreement and the likelihood of future compliance. [ 61 ] BH argues that he has always complied with every parenting order. He argues that VC has repeatedly failed to do so.

Section 16.92(1)(f) – the reasonableness of the proposal of the person who intends to relocate the Children to vary the exercise of parenting time, decision making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses. [ 62 ] BH asserts that the Relocation would not be significant variation in VC’s existing parenting time. [ 63 ] BH also points to the modified provisions of

section 16.93(2) of the Divorce Act . This provision provides a presumption in favour of the custodial parent, which he currently is. That presumption did not exist in the jurisprudence on mobility prior to the recent amendments to the Divorce Act . [ 64 ] This presumption specifically places the onus on the non-primary care parent opposing a relocation to demonstrate why relocation would not be in the best interests of the child.

Under current circumstances, VC would bear that burden. [ 65 ] I now turn to additional considerations which BH and VC offer in support of, and in opposition to, respectively, the Relocation. B. BH’s Additional Arguments in Support of Relocation [ 66 ] BH accuses VC of alienating behavior towards him. She has failed to comply with parenting orders, including the Order dated September 16, 2020. That Order granted, inter alia , specified parenting time to BH.

BH claims that VC has not demonstrated a willingness to co-parent with him. [ 67 ] By contrast, BH argues that he has attempted to be fair, patient and reasonable with VC. He notes that a willingness to co- parent is a specified consideration in determining the Children’s best interests as set out in section 16(3) (

c) of the Divorce Act .

[ 68 ] BH points to the fact that in January and May of this year, he made sure VC had parenting time with the Children, despite the terms of the Devlin December 11, 2020 Parenting Order. He claims that he was concerned that the Children missed their mother and, he wanted to support them. [ 69 ] BH asserts that, historically, despite VC’s prior mental health episodes he would allow her to resume primary parenting after he was assured that the Children would be safe. [ 70 ] He points to VC’s testimony before me confirming that he is supportive of her relationship with the Children.

He also appears to have been financially generous towards her. [ 71 ] BH argues that if he has primary care of the Children, he will ensure that they will continue to spend time with VC whenever it is safe and healthy for them to do so. He argues that there is no assurance the reverse would be true if the Children are in the primary care of VC. [ 72 ] BH argues that VC was evasive and argumentative at trial. She refused to acknowledge contradictions in her own evidence and was not credible. C.

VC’s Additional Arguments in Opposition to Relocation [ 73 ] VC acknowledges BH’s concern that she has failed to demonstrate ability and willingness to regularly and responsibly access treatment. She acknowledges that her mental health episodes are recurrent in nature and begin when she stops taking her medication. [ 74 ] Now threatened with the prospect of long-term separation from the Children, she advances a proposal (Proposal) which she believes should alleviate concerns over her ability to parent. Her Proposal consists of the following elements: 1. the Children would remain in her primary care in Calgary; 2.

BH would have equal parenting time when he is not overseas for work. The precise details of that arrangement would need to be worked out every time BH had a new work schedule. 3. VC will consent to any extension of the Community Treatment Order, including terms related to daily medication supervision . 4. VC will attend therapy with a Court approved psychiatrist at least once a month, or more frequently as recommended by that professional. 5. The Children shall attend counselling or therapy on a regular basis, and the reports of that professional shall be accessible by BH. 6.

BH shall have weekly contact with the Children while he is working overseas so that he may detect any early warning signs of a mental health episode. 7. If BH or any medical professionals involved with the family believe that any concerning behavior by VC suggests an oncoming mental health episode, VC’s parenting will be suspended pending a mental health evaluation. 8. If or when VC’s Community Treatment Order expires and is not renewed, she will hire (presumably at her expense) a company to provide daily medicine supervision and will instruct them to report any missed visits to BH and his counsel.

Failure to provide proof of medicine intake to BH will result in VC’s parenting being suspended pending a mental health evaluation. 9. VC shall provide updates to BH on the status of her Community Treatment Order within 24 hours of receiving that information. 10. VC shall provide proof of her regular treatment or therapy. [ 75 ] I now turn to the testimony of two witnesses, Mr. Clayton Poberezny and Ms. Debra Foley. Their evidence is relevant in comparing the merits of the Relocation, on the one hand, and the Proposal, on the other, as the option of choice for addressing the best interests of the Children. VI.

Testimony of Mr. Clayton Poberezny [ 76 ] Mr. Poberezny is a social worker from Child and Family Services. He is specially trained in child protection. [ 77 ] BH quotes from Mr. Poberezny’s testimony. He noted that he had detected emotional injury to the Children while in VC’s care.

He indicated that he believed there had been a risk to the Children’s safety of remaining in her care. [ 78 ] He talked about VC sabotaging the Children’s relationship with BH and how they were being taught that he was not a positive person and was a risk to the Children’s health and safety. [ 79 ] He also testified about VC expressing delusions about being told by demons to harm the Children and herself.

He noted that she expressed the view that she would prefer the Children to be dead rather than in the Father’s care. [ 80 ] He testified that at the time Child and Family Services closed their file, they would not have supported VC’s resumption of primary care of the Children. [ 81 ] Mr. Poberezny testified that he understood that VC’s mental health episodes in the Fall and Winter of 2020 were not isolated incidents. The Director of Child and Family Services would be concerned about VC’s history of relapses when assessing the Children’s

safety in VC’s care. [ 82 ] Mr. Poberezny’s perceptions of VC were not all negative. He testified that he considered her a competent, caring, appropriate mother at all times other than when she struggled with mental health. His concerns, as outlined above, arose in the context of her relapse of November and December of 2020. [ 83 ] He also indicated that CFS would not reopen the file on this matter if it could be assured that VC was getting treatment and taking her medication. VII. Testimony of Debra Foley [ 84 ] Ms. Foley works for Alberta Health Services, mental health division in the community extension team.

She works with clients on an outpatient basis following discharge from hospital. One of her responsibilities is to follow Community Treatment Orders. [ 85 ] She is VC’s outpatient community nurse. She meets with VC weekly and is in charge of monitoring her compliance with prescribed medications. [ 86 ] That monitoring takes the form of a visit each day by a representative of CBI Home Health. That representative goes to VC’s house every day at 6:00 p.m. They apparently watch her take her medication. If any issues arise, Ms. Foley is notified the following day. [ 87 ] Ms.

Foley referred to the program currently applicable to VC as a short-term bridging program. Once her group feels a patient is stable they are transferred from her program to the Central Mental Health Clinic operated out of the Sheldon Chumir Health Centre. [ 88 ] VC’s care would then be taken over by a psychiatrist with the Central Mental Health Clinic. Daily monitoring of her compliance with prescribed medications would continue once VC is transferred to a long-term program. [ 89 ] She is satisfied that VC has been taking her medications as prescribed. VIII. The Guardianship Application [ 90 ]

Section 16.1(1) of the Divorce Act permits the Court to make an Order providing for the exercise of parenting time or decision-making responsibility for the Children by a person who is not a parent to the Children but who “intends to stand in the place of a parent”. Such an application is to be determined in accordance with the best interests of the Children, with reference to the factors set out in Section 16(3) of the Divorce Act . [ 91 ] BH argues that several factors support KM being granted parenting and decision-making responsibility for the Children.

She will protect the Children’s physical, emotional and psychological safety, security and well-being. She will support the Children’s need for stability, both generally and while the Father is working overseas. She intends this to be a lifetime role. [ 92 ] BH claims that KM and the Children have a loving relationship and that his family shares a close family bond. KM has stepped in to assist in the Children’s care in the past. [ 93 ] KM, BH and the Grandfather would communicate and co-parent together.

KM indicates that she is willing to maintain a relationship among the Children and VC, to the extent it is safe and healthy for them, with regard to the directions of this Court. [ 94 ] KM is willing and able to care for and meet the need of the Children. KM shares the Children’s Indigenous heritage. [ 95 ] In BH’s view, life will be easier for the Children if KM shares in primary care and guardianship when BH is away for work. [ 96 ] KM also testified. She expressed a sincere interest in the Children’s welfare.

She believes their best interests would be served if she and BH served as the Children’s joint guardians. [ 97 ] KM is acknowledged to have, in November of 2016, stepped in to assist with the Children’s care during one of VC’s mental health episodes. Indeed, VC testified that if she needed help with the Children during a period of hospitalization in the future, she would engage BH, his father and KM to help. [ 98 ] KM testified that she was willing to support the Children in their relationship with VC. KM indicated that she is willing to assist as needed in travelling with the Children for access with VC. IX.

Specific Questions of the Parties [ 99 ] To assist me in gaining an understanding of what would be in the Children’s best interests, I posed ten questions to the parties. Below I list those questions and the parties’ responses 1. Why should the Court conclude that the Children’s best interests are served by exposing them to the risk that VC’s mental health challenges may worsen, despite assurances that she will take her medication. BH’s Response

[100] BH does not believe that this is a risk that should be taken. He points to the section 16(2) of the Divorce Act: “The Court shallgive primary consideration to the child’s physical, emotional and psychological safety, security and well-being”. [101] BH argues that the risk of harm to a child is a factor to be considered. The purpose of parenting time is to preserve a child’spositive familial relationships.

The Court must consider if the conduct in question poses a risk of harm to the child which outweighs thebenefits of a free and open relationship which permits the child to know the access parent as he or she is: Young v. Young, (SCC), [1993] SCJ No. 112 [102] He notes the limitation in the maximum contact principle as articulated in Gordon v. Goertz, (SCC), [1996] 2SCR 27.

The Court need only respect the maximum contact principle to the extent such contact is consistent with the child’s bestinterests. [103] BH once again raises the unfortunate circumstances which developed in November and December of 2020, when Child andFamily Services supported an apprehension of the Children. [104] BH concludes on this point by noting that risk of harm to a child is not a condition precedent for limitation on access: Young VC’s Response [105] VC argues that her Proposal is sufficient to mitigate future risk of harm to the Children from her mental health circumstances.

She believes that the best interests of the Children are served by remaining in her care, provided the risks associated with her mentalhealth can be mitigated. 2. If there is some risk that VC’s condition may worsen, given the Children’s ages, is there a benefit to vesting BH with primary caresooner rather than later? BH’s Response [106] BH argues that the Children should not have to follow a “wait and see” approach. Establishing stability, continuity of care anda sense of home are critically important factors in this case.

VC’s Response [107] VC believes that her Proposal sufficiently mitigates future risk if her condition worsens. She believes it provides a plan toensure that VC has the greatest chance of getting the treatment she requires. 3. It appears possible to institute a permanent program under which VC will be checked daily to ensure she takes her medication. What could go wrong with that? How could the Court’s direction in that regard be frustrated? BH’s Response [108] BH speculates that if the Proposal were to fail, the consequences to the Children would be dramatic.

They would suffer furtheremotional and psychological abuse. [109] BH does not think the Children’s best interests would be served if the Court directed an automatic transfer of parenting to him inthe event VC failed to adhere to a Court directed program. [110] BH distrusts VC’s assurances that she will continue her treatment. He points to VC’s contradictory emails to this Court inDecember of 2020. On December 4, 2020, she stated “I have been diligently receiving regular psychiatric care and medications”. OnDecember 5, 2020, she stated “I do not have any mental illness.

While I persistently receive psychiatric check-ins and buy medicationsfrom the pharmacy, I never take the medications”. [111] She told the Court on June 2, 2021 that she had always been truthful about taking her medications. [112] BH points to VC’s attempts to explain her apparent contradictory statements by the fact that she was, in December of 2020,suffering an episode. She frankly acknowledged on cross-examination that if she fails to take her medication her mental deteriorationcan be rapid. [113] BH takes the position that VC significantly downplays her prior mental health hospitalizations.

He notes that in VC’s Affidavitof November 27, 2020, she states that most of her past hospitalizations were the fault of BH. [114] BH thinks VC will say whatever she thinks the Court would like to hear in order to have her parenting time restored. BHappears to place little credibility in VC’s observation that she was not fully aware of her mental illness but now appreciates andunderstands it. VC’s Response [115] VC argues that her Proposal takes any issue of her reliability off the table by placing responsibility for her daily medication inthe hands of independent third parties that report to BH.

VC’s counsel confirms that the company which is currently contracted byAlberta Health Services to provide daily checks on VC offers private medication supervision services.

4. Are VC’s periodic manifestations of parental alienation entirely explainable by her mental challenges? BH’s Response [ 116 ] BH acknowledges the difficulty which answering this question poses. He argues, however, that, from a child-centered perspective, why VC may have engaged in alienating behavior is largely irrelevant. He notes that the best interests of the Children are to be determined with reference only to the considerations set forth in section 16(2) , (3) and 16.92 of the Divorce Act . The reasons for VC’s inappropriate behavior must not be allowed to distract from the fact that she has engaged in it.

VC’s Response [ 117 ] VC’s response to this question is somewhat vague. Her answer leaves me with the impression that she believes her periodic manifestations of parental alienation are indeed linked to her mental health challenges. [ 118 ] Her testimony at trial suggests that she does not to harbor any ill will towards BH. Nevertheless, some of her Affidavits and email exchanges, especially during periods of relapse, clearly manifest hostility towards BH. 5. Should VC’s unfortunate wording choices (e.g. evil, monster) be explained as a manifestation of any cultural or religious paradigms that apply to her?

Of do they reflect a deeper hostility to BH? BH’s Response [ 119 ] BH takes the position that the difficulty in this file is parsing out which behaviors displayed by VC are the result of recent mental health episodes, her religious beliefs or the result of hostility towards BH. [ 120 ] BH argues that it does not matter whether VC is calling BH “evil”, a “monster” or a “demon” in front of the Children because of her religious beliefs or because of her hostility or because of her illness. It is damaging and abusive to the Children and cannot be tolerated. [ 121 ] BH points to cross-examination of VC.

She would not accept that, during her mental health episodes, she had acted in a manner inconsistent with the Children’s best interests. She would not agree that during those episodes, she may have psychologically and/or emotionally harmed the Children. She would not agree that saying wrong things to the Children could be emotionally damaging and harming to them. [ 122 ] Similarly, she refused to acknowledge that telling the Children that BH was dead, evil or a monster was emotionally damaging to them.

She simply replied “I don’t know”. [ 123 ] BH argues that VC demonstrates no accountability for the harm which he thinks she has caused by these behaviors, including her assertions that BH had sexually abused the Children. VC’s Response [ 124 ] VC would have the Court accept that her inappropriate characterizations of BH occur only during periods of relapse. 6. Whose parenting plan is better for the Children and why? BH’s Response [ 125 ] BH thinks his parenting plan is superior.

It is more consistent with the Children’s best interests because it addresses their safety and wellbeing, long term stability, consistency and certainty. It also gives them a sense of permanent home, the ability to maintain relationships with both parents while in his care and the diminished risk of further emotional and psychological harm. [ 126 ] BH proposes to share day to day parenting responsibilities with KM. He would eventually acquire a residence in San Diego in the same neighborhood as KM. [ 127 ] BH would not seek child support from VC.

He would be willing to contribute to the travel costs associated with allowing VC to exercise parenting time in Canada and California. He advises that in the “immediate future” he would be willing to pay VC’s reasonable out of pocket travel costs. [ 128 ] BH proposes that VC’s in-person parenting time occur during periods that he is off from work so that he can assist in facilitating that parenting time. He would prefer that it occur predominantly in California to allow the Children to get settled. [ 129 ] He would encourage regular Facetime and telephone parenting time.

Both he and KM would keep VC informed as to the Children’s lives, medical matters, schooling and extra-curriculars. VC’s Response [ 130 ] VC argues that her Proposal provides that the Children will be in the care of one of their parents at all times. It will maximize contact between the Children and their parents.

[ 131 ] VC argues that BH’s parenting plan places the Children in the care of a relative who has not had a history of care for these children except for a brief period in 2016. She expresses concern that KM’s daughter was violent with the Children when they were in KM’s care in 2016. [ 132 ] VC asserts that BH has been unable to specify what the parenting plan for VC would look like if he were to succeed in his application. She also argues that, because she is currently unemployed, it would be difficult for her to exercise parenting time. 7.

If the Children were to move to the US, what jurisdiction would an Alberta court have over parenting and access matters and for how long? For example, if the Children move, in what jurisdictions will subsequent applications regarding parenting and access be brought? BH’s Response [ 133 ] BH would agree to any Order I may be inclined to issue designating Alberta as the applicable jurisdiction, at least for a period of time. VC’s Response [ 134 ] VC expresses concern that Alberta Courts might lose jurisdiction once the Children become residents of California.

She would have limited means to defend herself should an application be brought in California. She argues that should BH breach an Alberta Order, she will have no practical remedy. 8. How will an Alberta order addressing VC’s access rights be enforced in California? Restated, what impediments might there be to enforcement of an Order of this Court in California? BH’s Response [ 135 ] BH advises that he would agree to a clause in any Order I might grant stipulating that the Order be registered with the Court in California.

He asserts that registration would ensure its enforceability in California. [ 136 ] He asserts that the Hague Convention could assist if either party failed to comply entirely and effectively “ran off” with the Children. VC’s Response [ 137 ] VC argues that she would be required to petition a California court in order to enforce an Alberta court order. This would be difficult and expensive for her to undertake. 9.

Other than that it would not be BH’s preferred outcome, what would be inherently wrong with an order re-vesting primary care with VC, subject to a review within, say, six months, accompanied by a psychiatric report and possibly evidence from Child and Family Services? What danger does such an arrangement pose to the Children? BH’s Response [ 138 ] BH argues against this outcome by noting that the Children have been required to shuffle primary parenting several times due to VC’s mental health episodes.

He argues that to give VC, another chance, as he describes it, would be to prioritize her interests over the interests of the Children. [ 139 ] The Children’s interests include stability and continuity of care. They are entitled to have a stable and consistent home.

If VC should fail in her efforts to control her bi-polar disorder and primary care transferred to BH, the Children could incur as many as five changes in parenting and access over the period 2020 to early 2022. [ 140 ] BH claims that if VC were doing well, he would be happy to assist in her exercising increased parenting time in either Canada or the United States. [ 141 ] He notes that VC had failed to take her medication in December of 2020 and in March of 2021. He argues that it would be inappropriate to give her another chance. [ 142 ] BH believes VC will always relapse.

It is a pattern that has repeated itself over the last seven years. BH’s view is that “it’s time to…focus on doing what’s best for the Children now instead.” [ 143 ] He quotes from Young : The best interests of the child is not simply the right to be free of demonstrable harm. It is the positive right to the best possible arrangements in the circumstances of the parties. [ 144 ] BH states that Mr. Poberezny from Child and Family Services expressed concern with the history of relapse and its implications if primary parenting were ever restored to VC. VC’s Response

[ 145 ] VC’s Proposal seeks to address this question. She points to periods in 2021 when, despite a Court Order to the contrary, BH has been sufficiently comfortable with VC’s ability to parent the Children that he provided her with uninterrupted, unsupervised parenting time. [ 146 ] She suggests that the Court require the parties to appear before it each time her Community Treatment Order is set to expire. The Court could then be satisfied that either the Community Treatment Order is extended or appropriate safety measures are put in place. 10.

Can VC’s somewhat threatening communications with BH be the manifestation, not of animus, but of profound anxiety about the prospect of losing contact with her Children BH’s Response [ 147 ] BH argues that VC began denying him parenting time in early 2020. Threatening communications from VC commenced in the summer of 2020. At that time, BH’s only application before the Court was some fixed parenting time.

VC would remain the primary caregiver. [ 148 ] BH argues that the fact that he would want to maintain any form of contact and relationship with the Children cannot reasonably be construed by VC as any risk to her relationship with the Children, such that it would merit threats against him. VC’s Response [ 149 ] VC’s response to this question is an emphatic “yes”. She argues that her threatening communications were a manifestation of her mental health and anxiety over losing primary care of her Children. She argues that when she is well, the parties get along and their communication is not high conflict. X.

Analysis and Conclusions [ 150 ] I believe BH and KM propose the Relocation in good faith. I believe they are both acting with what they consider to be the best interests of the Children in mind. KM testified and her testimony leads me to conclude that she is a kind-hearted individual who cares about her niece and nephew a great deal. [ 151 ] BH has been patient with VC. I am convinced that he arrived at Relocation as a last resort. [ 152 ] I consider VC to have acted irresponsibly in neglecting to take prescribed medication.

Allowing herself to spiral down into a mental health crisis when she knows it is preventable is a strange way to demonstrate awareness of the best interests of one’s children. However, I suspect that the quality of her awareness becomes compromised once a mental health episode begins to take hold. [ 153 ] I also note that her confrontational communications with BH and his counsel occurred while she was self-represented.

Participation of counsel on VC’s behalf appears to have obviated the need for VC to take unsupportable positions or threaten consequences that have no basis in law. [ 154 ] The Proposal seems like an effective method of addressing obstacles to functional behavior on VC’s part. But I am troubled that it has taken the Devlin December 11, 2020 Parenting Order and this trial to convince VC to advance her Proposal in order to address these concerns. [ 155 ] Having said that, in my view, having considered the factors outlined in section 16(3) and in

section 16.92 of the Divorce Act , the Proposal is to be preferred to Relocation, at least for the time being. [ 156 ] The evidence satisfies me that VC is a capable parent. When she is not in crisis, she addresses the Children’s needs.

She is capable of co-parenting and maintaining a civil relationship with BH when she takes her medication. [ 157 ] I am willing to speculate that removal of the Children from VC’s care as a consequence of the Devlin December 11, 2020 Parenting Order may have given VC pause for reflection. [ 158 ] I believe the best interests of the Children are addressed by returning them to VC’s care, provided VC strictly complies with the Proposal and it is enforced rigorously. [ 159 ] Though KM appears to afford an opportunity for excellent primary care she would be offering that care as a substitute for the Children’s mother and, for extended periods of time, as a substitute for the Children’s father. [ 160 ] VC is the Children’s mother.

She has a history of primary care. The Children appear to have been well taken care of, except in instances of relapse. [ 161 ] There appears to be consensus that VC does not suffer from an inherent defect that renders her incapable of meeting the Children’s needs, except in instances of relapse. [ 162 ] The Children’s ties are to Calgary. They have attended school here. VC has arranged contacts with health care providers to ensure that the Children’s medical needs are addressed.

[ 163 ] I also believe the Children’s best interests are served by having maximum contact with both of their parents. Provided VC follows the Protocol, I see no need to substitute KM for VC in a primary care role. [ 164 ] I am concerned that it will be difficult for the Children to adjust to living in an environment where they interact with their father only when he is not overseas, where their primary care giver is an aunt and where they have only infrequent opportunity to meaningfully interact with their mother. [ 165 ] In the result, I direct that the Children be returned to the primary care of VC.

The Grandfather is discharged as a guardian. BH and VC will share decision making responsibilities relating to the Children. [ 166 ] Though I deny BH’s application to relocate the Children to California and though I deny KM’s application for guardianship, I do so with a warning to VC. The Protocol must be strictly adhered to. Subject to further Order of this Court, it is to remain in place so long as either of the Children remain children of the marriage. [ 167 ] VC should keep the provisions of clauses 7 and 8 of the Proposal uppermost in her mind.

Breach of those provisions will enable BH to immediately approach the Court seeking suspension of VC’s parenting rights. [ 168 ] Non-compliance with the terms of the Proposal will weigh heavily against VC in any subsequent Relocation application BH may choose to make. [ 169 ] With respect to the various forms of relief sought in VC’s application filed May 21, 2021, obviously the Children’s belongings will accompany them when they return to VC’s primary care. The restraining order against VC is terminated.

As noted above, she will share decision making responsibility with BH. [ 170 ] The issue of BH’s child support obligations will now become relevant. Presumably, the parties, with the benefit of counsel, will be able to identify and implement those obligations. If they are unsuccessful, I have no doubt one or both of them will seek a Court imposed resolution. [ 171 ] If the parties are unable to settle the terms of the Order implementing this decision, I will settle those terms.

It is to include a term which requires the matter of VC’s compliance with the Protocol to be brought back before this Court every six months for review. [ 172 ] If the parties cannot agree on the costs associated with the trial before me they may make written submissions within thirty days of the date of this decision. Heard on the the 2 nd and 3 rd day of June, 2021. Dated at the City of Calgary, Alberta this 22 nd day of July, 2021. C.M. Jones J.C.Q.B.A. Appearances: Garrett Horvath and Ivana Covic for the Plaintiff Katelyn M. Clark for the Defendant